after stating the case. In its defense, defendant company contends that there is no evidence tó show that the arrest, in the first instance, or the imprisonment under the order of Cashwell, the Justice, was authorized by it, through anyone whomsoever. And if its agents were present and did participate in the arrest ’and imprisonment, there is.no evidence that they acted within the scope of their authority, and thereupon asked the Court to give the special instruction No. 1. In view of all the testimony set out in the record, we think his Honor properly refused to give said instruction. The evidence shows that Kenly, the general manager, Campbell, the local agent, and two of defendant’s attorneys, were present at the depot, only a few hundred yards from the wreck, and that Pope was one of the attorneys. On account of the great destruction of the company’s property, interference with its business, killing its engineer and injuring others of its servants and passengers, it was deeply interested in apprehending the criminal; and being only a legal entity and having to perform all of its duties and busi*433ness through, agents, one of which duties being that of protecting its passengers while on its train and safely carrying them to their destinations, which casts rrpon them' a burden, in common with other good citizens, of disarming those evilly disposed to its property and traffic by arresting and bringing them to trial and having them justly punished, we think the conduct and acts of its agents, attorneys and officers upon that occasion was some evidence that they were acting within the scope of their authority. The single act of Pope, disconnected from the acts and conduct of his fellow attorney and general' manager and local agent, and from the wreck, would not have been any evidence that ho was acting within the scope-of his authority as attorney. But taken in connection with that of Campbell, the local agent, to whom plaintiff told Tart’s confession, and his repeating the same to the train dispatcher, the arrest taking place in his warehouse within thirty-five or forty minutes, his sending for the Justice, Cash-well, and what followed, we think it was clearly some evidence to be submitted to the jury for their consideration in determining whether the general manager, agent and attorneys were acting within the scope of their authority. Hussey v. Railroad, 98 N. C., 34; Daniel v. Railroad, 117 N. C.,. 592; and that his Honor ought not to have given the same.
There was no charge or suggestion that plaintiff was guilty of the crime of wrecking the train. Iiis only connection with the matter was, that he sought to communicate to officers of the law and defendant’s agents that. Tart had told him that he (Tart) had put the spike on the track which caused the wreck. Having done so, he was arrested without warrant and carried under arrest through the woods looking for Tart. Hailing to find T’art, upon his return he was called upon to make an affidavit and apply for a warrant against Tart, which had been prepared by Pope, who was an attorney of defendant company. As soon as it was issued, he was, on *434motion of Rose, another attorney, made in tbe presence of Kenly tbe manager and Pope, required to give a bond in tbe sum of $500 for bis appearance tbe following Monday before tbe Justice wbo issued tbe warrant, and in default thereof was kept in custody.
There is no law which warrants such a proceeding. There is no statute which authorizes a Justice of t-he Peace or magistrate to require of a witness to give bond for his appearance before such Justice or magistrate. The only provision for. requiring a witness to give bond is when upon the examination of a matter wherein a person is accused of an offense and it shall appear that an offense has been committed, and there is probable cause to believe the prisoner to be guilty thereof, the magistrate shall bind over or commit such prisoner, and shall bind by recognizance the prosecutor and all the material witnesses against such prisoner to appear and testify at the next term of the Court having jurisdiction. Code, sec. 1152. And if such magistrate shall be satisfied by proof that there is good reason to believe that any such witness will not fulfill the conditions of such recognizance unless security be required, he may order such witness to enter into' a recognizance with such sureties as may secure his appearance. Code, sec. 154. If any witness so required to enter into a recognizance shall refuse to comply with such order, it shall be the duty of the magistrate to commit him to prison. Code, sec. 1155.
In this case the person charged with the offense had not been taken. So there was no examination; there could be no examination in the absence of the person charged; in fact, the' record shows that none was attempted; upon the issuing of the warrant, on motion, the Justice required the bond to' be given conditioned upon his (plaintiff’s) appearance on the following Monday before said Justice. Having issued the warrant against Tart, it properly belonged in the *435bands of the Sheriff or constable. Tart not having been arrested, there was nothing before the Justice over which he had jurisdiction — neither subject-matter nor person. It therefore follows that he was not acting in his judicial capacity, and his order had no legal force. He, together'with those encouraging and advising him, was a trespasser. Newell on Malic. Pros., pages 89, 90; People v. Liscomb, 60 N. Y., 559, 19 Am. Rep., 211; Bigelow v. Stearnes, 19 Johns (N. Y.), 39, 10 Am. Dec., 189. Wherefore, his Honor properly refused instructions Nos. 4, 5, 6 and 7.
The exception to his Honor’s striking out the words “as testified to by the Justice,” in giving instruction No. 8, is without merit. So, this brings us to the investigation of instructions 10 and 11, refused by the Court, relating to the damages, and we find no error in his refusal. There was evidence of injury to plaintiff on account of his arrest and imprisonment. He was restrained of his liberty and deprived of the comforts of his family — wife and two children under five years of age, and during the five days he was under arrest, they needed him for lack of something to eat, for lack of wood and for lack of attention in sickness. And his Honor did instruct the jury in the latter part of his charge “that in no event could they find that plaintiff was entitled to recover punitive damages.” But he instructed them, as requested by defendant in its ninth prayer, that plaintiff could “only recover actual damages, including injury to feelings and mental sufferings, and is not entitled to punitive damages unless the arrest was accompanied with malice, gross negligence, insult or other aggravating circumstances.” Lewis v. Klegg, 120 N. C., 292; Neal v. Joyner, 89 N. C., 287.
We are unable to discover any error in giving the-special instructions asked for by plaintiff.. They seem to have been prepared in conformity to well-considered rulings made by *436tbis and other Courts. The first is supported by State v. Buxton, 102 N. C., 129, and cases there cited; the third and fifth by Cook v. Railroad,, 128 N. C., 336; Strother v. Railroad, 123 N. C., 197; Fogg v. Railroad, 148 Mass., 514; 12 Am. St. Rep., 583; Wells v. Market Co., 19 D. C., 385; Penn Co. v. Weddle, 100 Ind., 138; 14 Howard (55 N. S.), 468; Hussey v. Railroad, 98 N. C., 34; 12 Am. and Eng. Enc. (2d Ed.), 725, and cases there cited; and the eighth is covered by what we have hereinbefore said and authorities cited.
There is no Error.