dissenting. While it appears that the plaintiff has been badly treated, and is entitled to damages for the unlawful arrest and detention, I see no evidence that makes the defendant railroad liable therefor. To do this it was necessary to show that the railroad caused the arrest to be made. This, in my opinion, has not been shown by any evidence authorizing such finding. There is no evidence that Kenly, Campbell, Pope or Rose were authorized to make or cause the arrest of the plaintiff, nor that it was within the scope of their general powers. But if there was evidence showing any such authority from the road, there is no evidence showing that either one of them made the arrest or caused it to be made. “After talking to several persons about it, he went to defendant company’s depot and told Campbell, defendant’s agent, about it, and he reported it to the train dispatcher. While with Campbell, Monaghan, a Deputy Sheriff, came in and arrested him and carried him over the woods looking for Tart. After returning, Mona-ghan put him in the custody of Johnson. He was taken into the depot, and they had him to swear out a warrant before Cashwell, a Justice of the Peace, against Tart, which had been prepared by Pope. After Cashwell issued the warrant, Geo. M. Rose made a motion that the State’s witness, *437tbe plaintiff, should, be put under bond. Casbwell then required plaintiff to give a $500 justified bond for bis appearance on Monday as a State’s witness. Rose, attorney of defendant, and Kenly, general manager of defendant, were present.”
Tbe above-quoted statement of facts is taken from tbe opinion of tbe Court, and I respectfully submit that it does not show that tbe defendant arrested tbe plaintiff, or caused bis arrest. It does not show that tbe plaintiff was arrested by Campbell, Kenly, Pope or Rose, tbe alleged agents and attorneys of defendant, nor that they advised or encouraged bis ■arrest. It is true that Campbell was present when tbe arrest was made by the Deputy Sheriff, but it does not appear that be said one word. It can not be that tbe defendant is liable for Campbell’s presence when tbe plaintiff was arrested, nor for going with tbe plaintiff to tbe Justice of tbe Peace when be swore out tbe warrant. Nor can tbe defendant be liable for Pope’s writing a warrant against Tart.
To bold tbe defendant liable for tbe acts of Kenly, Campbell, Pope or Rose, they must have been defendant’s agents with a general or special authority to do tbe act. Redditt v. Mfg. Co., 104 N. C., 100. But in'this case tbe plaintiff failed to show that tbe defendant’s agent made tbe arrest, or caused it to be made.
■ It certainly can not be that tbe defendant is liable for tbe acts of Casbwell, while acting as Justice of tbe Peace, however erroneous they may have been. Nor can it be that tbe defendant is liable for tbe motion Rose made in asking the Justice to bold .the plaintiff to bail for bis appearance as a witness, whether tbe motion was a proper one or not. If this could be done, but few parties in Court would be safe. Moore v. Cohen, 128 N. C., 345.
I think tbe defendant was entitled to tbe first and fourth *438prayers for instruction, and it was error to refuse to give them.
ClakKj J., concurs in the dissenting opinion.