By the Court,
Emott, J.We are of opinion that the damages in this case are excessive, and that a new trial was improperly refused at the special term, and must now be granted, for that reason. The jury could hardly have regarded the sum found by them as the measure of the injury sustained by the plaintiff. Their verdict went farther than to give compensation for his wrongs, and was no doubt intended to inflict punishment upon the defendant for his conduct. They had a right, in such a case, to give damages for such a purpose, but not to an arbitrary amount. Two thousand dollars was an unreasonable verdict, even upon the facts which appeared at the trial. We might indeed feel some reluctance to interfere on account of the damages, were it not for the additional consideration that evidence was withheld from the jury, which would have been proper to explain the *260motives of the defendant, and probably would have mitigated the verdict against him.
• Before coming to this point, however, it will be necessary to consider briefly the general character of the- plaintiff’s action, and the rules by which it should be tried. We are by no means convinced that any of the exceptions taken. at the-trial are well taken, except perhaps the exception to the refusal of the evidence which we have already mentioned; and this evidence was offered in a manner to make its reception very doubtful, and which was exceedingly likely to mislead, the judge. The case was tried in a confused way,, which ndoubt did mislead both the court and the jury, and probably has resulted in, doing injustice which may be remedied upon a new trial.
The complaint charges the defendant with having falsely and maliciously without any just cause or provocation arrested or caused to be arrested the plaintiff; and proceeds to allege the circumstances of the arrest and detention and the special or particular damage thereby. An action will lie against one who has either unlawfully arrested or imprisoned another, or who has falsely, that is unjustly and maliciously, prosecuted him and caused his arrest. But these are different actions, requiring different pleadings and evidence, and governed by different rules. Under our former nomenclature, the action for unlawfully arresting or imprisoning another was trespass; while for maliciously prosecuting another; or causing or procuring his arrest, it was an action on the case. The former was the action for false imprisonment; the latter for a malicious prosecution or malicious arrest. In the latter two cases the action was substantially the same, and was governed by the same rules, whether the injury complained of was a prosecution or an arrest. The arrest might be the only act of prosecution, and the only act procured by the defendant. Or, there might be an unlawful and malicious arrest in the course of a lawful prosecution; as where a creditor arrests his debtor for a demand upon which he cannot be im*261prisoned, or for more than is due, or where he is exempt from imprisonment.
But whether the injury complained of was a prosecution, that is, the institution and pursuit of a civil or criminal proceeding, or merely an arrest and detention, the action was the same, being brought upon the case, and varying in the pleadings and proof with the special circumstances. In all such cases, however, whether the injury is a prosecution or an arrest merely, the rules applied by the courts are uniform and settled. The plaintiff must invariably aver and prove both malice and a want of probable cause. (Mitchell v. Jenkins, 5 B. & Adol. 588. Whalley v. Pepper, 7 Carr. & Payne, 506. Walker v. Cruikshank, 2 Hill, 297. 1 Arch. N. P. 446.) And it is a part of the want of probable cause, and an indispensable matter both of averment and proof, that the prosecution or arrest should be shown to have been terminated. The cases in which this rule has been sedulously applied to actions for malicious prosecution, as by indictment, are very familiar. The same rule obtains in actions for malicious arrests, although of course the same formalities are not required to terminate an arrest, as to put an end to a prosecution. But that the principle is the same see Buffer, J. in Morgan v. Hughes, (2 T. R. 231;) Wilkinson v. Howell, (1 Moody & Malkin, 495.) In the.latter case the rule was distinctly stated, in an action for an arrest, by Lord Tenterden, and approved by all the judges of the king’s bench.
The action for falsely and unlawfully imprisoning another proceeds upon a totally different principle. That is an action of trespass for a direct wrong, in which the defendant must have personally participated. This is one distinction from the action on the case for maliciously procuring an arrest or instituting a prosecution. Another is that the action of trespass for false imprisonment is for having done what upon the statement of it is manifestly illegal; while the ground of the action for a malicious arrest or prosecution is the procuring to be done what upon the face is or may be a legal act, *262from malicious motives and without probable cause. This distinction is clearly stated in the reasons for the judgment in Johnson v. Sutton, in the exchequer chamber, as given by Lord Loughborough and Lord Mansfield and reported in 7 T. R. 544. The farther distinction resting upon the indirect procurement or the direct participation of the defendant in the act, is well illustrated in a case which is very pertinent to the circumstances of the case at bar. The case is Hopkins v. Crowe, (7 C. & P. 373,) an action for false imprisonment, tried before Lord Denman, and in which his rulings were afterwards sanctioned, on argument, by the court of king’s bench. The plaintiff was arrested by an officer, in the presence and at the complaint and instigation of the defendant, who was a private person, for ill using a horse. The rule given to the jury was that if the defendant directed the officer to take the plaintiff into custody, he was liable to an action for false imprisonment, but if he merely made his statement, leaving it to the officer to act or not as he thought proper, he was not liable to an action of trespass for the arrest.
It is obvious that these two classes of wrongs and remedies require different rules both of pleading and evidence, and are essentially distinct. In an action for false imprisonment, the gist of the action is an unlawful detention. Malice in the defendant will be inferred, so far at least as to sustain the action, and„the only bearing of evidence to show or disprove actual malice is upon the question of damages. So, also, probable cause, or reasonable grounds of suspicion against the party arrested, afford no justification of an arrest or imprisonment which is without authority of law. There are some cases in which the existence of reasonable ground of suspicion is spoken of as a defense in actions for false imprisonment ; but upon examination it will be found that these cases turn upon the authority given to magistrates in particular instances to arrest upon suspicion merely, to prevent or punish crimes, and in which therefore a reasonable suspicion is a sufficient authority and justification for an arrest; or'else they are cases *263in which the actual commission of a felony was first proved, and the case turned upon the ground for suspecting the person arrested. (See West v. Baxendale, 9 Com. Bench Rep. 141.) In the case of an arrest by a private person, there can be no justification and no defense to the action, unless it first be shown that a felony has been actually committed by some one, and that there were reasonable grounds to believe that the person arrested was the guilty individual. (See Samuel v. Payne, Doug. 358; Holley v. Mix, 3 Wend. 350.) Under our present system of practice such a justification must be pleaded specially; and the answer must begin by showing the actual commission of an offense, and then the cause to suspect the plaintiff of its commission. If as much as this is not pleaded, or if the evidence comes short of this, it can only go to the question of damages.
In an action for a malicious prosecution, on the other hand, it is not necessary that the prosecution or the arrest should have been unlawful or unjustifiable upon its face, but it must have been malicious, and without probable cause. Malice and want of probable cause are the gist of the action, and must be both stated and made out.
The complaint in this action was vicious as a pleading, because it stated two causes of action belonging to these two distinct classes, in one count, coupled by a disjunctive. If this fault in the complaint had been corrected before the issue was joined, much of the confusion which has ensued would have been prevented. The complaint, upon examination, will be seen to be radically defective as a complaint for a malicious arrest or prosecution, inasmuch as it does not aver that the arrest or prosecution is at an' end; nor how it was concluded. The action must therefore be treated as for false imprisonment, and does not involve any question of probable cause, unless it be brought in by the answer.
But the allegations of the answer do not make that issue material to the right of the plaintiff to recover. The answer does not allege the commission of a felony by any one, and *264therefore there is no justification pleaded. The only issue tendered is the general denial, which goes merely to the fact of an arrest and imprisonment, and the defendant's participation in it. All the remaining statements of the answer are statements of evidence, receivable only in mitigation of damages, and would probably have been stricken out upon motion.
It may be said that the defendant is liable for causing an unlawful detention of the plaintiff, although he did not personally take part in it. If this were so, and were material to the present action, it could not affect the rules by which the case should be tried; since no appearance of probable cause would justify a wholly unlawful detention of the plaintiff, such as this is alleged to have been. And if the defendant took any part in an unlawful imprisonment of the plaintiff, he became a principal in the act, and is liable for the trespass upon the plaintiff's person. While if he merely communicated facts or circumstances of suspicion to the officers, leaving them to act on their own judgment and responsibility, he is not liable at all, in this action, in any aspect of it.
The latter version is that given by the defendant himself, and if it be true he should have had a verdict; while if he went beyond this and directed and participated in the plaintiff's arrest, being present himself at the time, he is clearly liable here for false imprisonment.
The counsel for the defendant excepted to portions of the charge, stating as his objection that the judge left it to the jury to say whether the defendant had probable cause for the arrest of the plaintiff. The objections were founded, as the whole defense seemed to have been conducted, upon the idea that the question of probable cause was material, and that the judge should have decided it himself. Undoubtedly if it were material to determine whether the defendant had probable cause for arresting the plaintiff, that would be a question of law, upon undisputed facts. But it was not material in the present case, and the exceptions are not available. They were not distinct enough to bring the real point in the case *265to the notice of the judge at the trial; nor do they bring it before us.
[Kings General Term, February 9, 1863.Emott, Lott and Brown, Justices.]
As these pleadings stand, the only questions in the case are the fact of the arrest and detention of the plaintiff, the defendant’s participation in it, and the damages. There is no justification pleaded, and no grounds of suspicion can do more than remove or weaken the imputation of malice, and mitigate the damages.
But we think, .as has already been intimated, that the judge at the trial should have received evidence to show grounds for suspecting the plaintiff of the commission of a crime, although its actual commission was not averred, nor very clearly offered to be proved.
The evidence was apparently offered as a justification, and was properly rejected for that purpose. But the facts offered, or some of them, if /proved, would go to relieve the defendant from the imputation of having acted from merely malicious, or mischievous and wicked motives, which imputation must have led to the present verdict. Evidence of the plaintiff’s conduct, and the circumstances of suspicion against him, was proper upon the question of damages only; but upon that point it was material; and the absence of any explanation or excuse has probably enhanced the verdict, and led to injustice.
Upon the whole we are all of opinion that this judgment should be reversed and a new trial ordered, the costs to abide the event.