dissenting.
It is manifest that the recovery had in this case can not be maintained, unless one could be sustained upon the record here presented, against Browne or Jackson, the agents of appellant, by whom all that it did was done.
There is no evidence that either Browne, Jackson or appellant were actuated by malice toward appellee; on the contrary, Browne and Jackson felt kindly toward him.
It is undisputed that on the morning of June 17th, the paymaster of appellant, upon examining the safe in the office of the company, reported that a package containing $8,000 in currency was missing therefrom; that appellee, Browne, Jackson and others, were informed of this, and diligent search was immediately made for the money, with the result that it was not found.
Jackson was the chief officer of the company in Mexico, and Browne was his assistant treasurer.
The home office of the company was 4,000 miles away. What, under the circumstances, was the duty of Jackson and Browne ? Surely not, having failed to find the money, to fold their hands and- say nothing.
Browne, who was informed of the loss before the arrival of Jackson, first ordered the doors locked, and they were locked by spring locks, thus fastening the office against entrance therein, but- not against the exit of persons inside. Browne, having finished his examination of the office and safe, told the inmates of the office that he was going to get the general manager, Jackson, and that' none of the inmates of the office, seven persons, should leave, or allow any one to enter until he returned.
This, it is said, was an imprisonment of appellee by appellant.
If properly construed by the inmates that they were thus commanded by Browne not to allow appellee to go out, it perhaps was. The situation, however, hardly comes within the rule by which an order to restrain is an imprisonment. The order, if so it was, was to seven men to restrain each and all of the seven. Can there be said to have been present the means or apparent means of enforcing such an order ? Appellee was no more restrained than was each of those by whom his restraint was or could be enforced. In about half an hour Browne returned, accompanied by Jackson. Jackson then made a search, as Browne had done, asked appellee a few questions as to where he had been the night before, gave orders that no one should leave the room, saying that he was going out with Browne, and that the occupants.of the office should remain there until he returned; ■he and Browne then went out. They were gone about an hour and a half; returning, they brought with them three men dressed in citizens’ clothes- one of them was the chief of police, and two were detectives.
Appellee testified : “When they entered they went into the paymaster’s office and instructed all that were in there to pass into the treasurer’s room; in the course of five or ten minutes'they called me in there. Mr. Jackson told me he wanted me to give a statement of every minute of my time from the time I had left the office the night before until I arrived there that morning, which I did. It was taken down in writing. A general question was asked me, and then I Avas sent into the next room, and then they called in three others. I don’t know what happened when they were in there, but they came back in the next room; Jackson and Browne and those three men that had come with them remained in the paymaster’s office about half an hour afterward.”
Up to this point, what had Browne or Jackson done, not required by their duty, or of which appellee could complain %
Appellee testifies: “Then Browne came to the front room and told me to come back there. I went back with him, and he pointed to one of these men and said to me, ‘ Herbert, you will have to go with this man,’ pointing to the man.”
Without remonstrance appellee went with the police, and was with five others, employes of appellant—Francisco Duran, paymaster; Higinio Castelan, Luis Lopez and Juan Valencia, guards; Tirso Villanueva, bookkeeper, to whom the direction not to leave the office had been given—lodged in prison by the Mexican authorities.
It may be that Browne or Jackson asked the police to take appellee into custody. Browne and Jackson each deny that such request or direction was made, and no one testifies to such - request. In the face of such denial, was the jury warranted in finding that appellant, by one or each of these two servants, either directly or indirectly, so requested or directed, when, if either did, appellee could easily have proven it by testimony of the Mexican police, who knew all that Browne and Jackson said and did?
There is authority to the effect that making a complaint before a magistrate, who issues a warrant under which a party is arrested, the warrant not being justifiable in point of law, does not make the complainant a trespasser, yet if the complainant point out the party to be arrested to the .officer who has the warrant,.such pointing out might make the complainant a trespasser. West v. Smallwood, 3 M. & W. 418; Austin v. Dowling, L. R., 5 C. P. C. 534.
If one presents an application to a court of competent jurisdiction, and the court adjudicating upon the law and' facts, orders an arrest, which is afterward vacated as erroneous, the applicant is not liable in trespass. Cooley on Torts, Second Ed., 548; Landt v. Hilts, 19 Barbour, 289-291; West v. Smallwood, 3 M. & W. 417-420; Fischer v. Langbein, 103 N. Y. 84-93; Marks w. Townsend, 97 N. Y. 590-598; Lock v. Ashton, 13 Jur., 12 Q. B. 871; Langford v. Boston & Albany Ry. Co., 144 Mass. 431; Addison on Torts, paragraph 1032.
“ Where a man is given into custody on a mistaken charge and then brought before a magistrate who remands him, damages can be given against the prosecutor in an action for false imprisonment only for the trespass in arresting, not for the remand, which is the order of the magistrate.” Webb’s Pollock on Torts, 265-267; Lark v. Bande, 4 Mo. App. 186; Johnson v. Horton, 94 Mich. 1-6.
A party who makes a charge before a magistrate, in consequence of which another is taken into custody, is not liable to an action for false imprisonment, because he does not set a ministerial but a judicial officer in motion. Webb’s Pollock on Torts, 265; Hope v. Evered, 17 Q. B. Div. 338.
Where one causelessly procures the arrest of another he may, if he institutes or secures the institution of judicial proceedings against the arrested party, be liable in an action for malicious prosecution for all that the injured person suffers in consequence of such prosecution; but in an action for false imprisonment, he is liable only for what was done up to the time when, as a result of judicial action, the party is held; from that time, the imprisonment is by judicial authority, and by that alone. Lea v. Charrington, 23 Q. B. Div. 45; Veneman v. Jones, 118 Ind. 41-45.
Appellee and others, being taken in custody by the police, an examination was had in the Second Criminal Court of Hexico, with the following result-:
“ Then the judge in view of the foregoing proceedings and considering that the corpus delicti of robbery has been proved, and there being evidence enough to indict Francisco Duran, Herbert B. Gehr, Juan Valencia, Higinio Castelan, Luis Lopez and Tirso Villanueva, he decided that, in accordance with the foregoing facts and of articles 168 and 255 of the Code of Penal Procedure, they are declared formally arrested, charged with the aforesaid crime; that this decree be made known to whom it may concern; that the accused be identified by means of photographs; that information be asked from the officer in charge of the records of the different times that the accused has been in jail, and that everything be done according to law.”
Articles 49, 158, 159, 160, 168 and 255, of the Mexican Code, are as follows :
“Art. 49. The author of a revelation does not contract any obligation which binds him to the judicial proceeding.
Art. 158. "When there is sufficient motive to suspect that a person is the author, accomplice or concealer of a crime, it is necessary to proceed to take his indicatory declaration.
Art. 159. If the accused has been deprived- of his liberty the indicatory declaration must be taken within forty-eight hours from the time of his detention. The infrabtion of this article shall be punished as indicated in article 1089 of the Penal Code.
Art. 160. After exhorting the accused to divulge the truth, there shall be made to appear in the indicatory declaration his Christian name, surname, country of birth, residence, whether married or single, profession and age; and then he shall be questioned :
I. As to whether he had had notice of the crime.
II. In regard to the location or place where he was the day and hour when the crime wa,s committed.
III. What persons he was in company with.
IY. Whether he knows the persons who are reputed to be co-authors, accomplices, or concealers.
Y. Whether he was with them before the perpetration of the crime.
YI. All other acts and details which may lead to the discovery of the truth, antecedents and causes which gave occasion to the crime, and the circumstances under which it was executed.
Art. 168. If the examinations show reason, according to this code, for the continued detention of the accused, the warrant based on the reasons for imprisonment shall be issued within three days. The infraction of this article shall be punished according to article 1038 of the penal code.
Art. 255. Formal or preventative arrest can only be ordered when the following requirements are met:
1. When the existence of an unlawful act which merits corporal punishment is proved.
2. When the preparatory declaration of the person detained has been taken, and the person informed of the cause of his arrest, and who is his accuser, if there be one.
3. When, in the opinion of the judge, there are sufficient data against the accused to suppose him responsible for the •deed.”
This action on. the part of the Criminal Court would seem to dispose of the question of whether the commission of a crime has been shown, and whether there was probable causé for charging the appellee with the same. In reference to this, it is to be borne in mind that while in the absence of evidence as to what the law of a foreign country is, it will, if a civilized State, be presumed that damages are recoverable- for assaults upon the person; there is no presumption that the same rules prevail there as here as to what constitutes proof of the commission of an offense, or probable cause; and the finding of the Mexican court in this regard, it being shown to have had jurisdiction of the subject-matter and person, is conclusive as to what, to it, appeared. Black on Judgments, Secs. 825 to 829; C. & N. W. Ry. Co. v. Tuite, 44 Ill. App. 535-543; Thompson v. Ketcham, 8 Johns. 190; Mostyn v. Fabrigas, Cowp. 161; Male v. Roberts, 3 Espinasse, 163.
FTeither Browne, Jackson nor appellant were in any way liable in an action for false imprisonment for what took place after the Criminal Court had remanded appellee. Evidence as to subsequent detention and the consequences thereof should hot have been admitted.
The record fails to show that there was a malicious prosecution or accusation. Browne and Jackson, so far as is shown, did only what their duty required.
It is not shown to be the casein Mexico, and it certainly is not here, that one who gives notice to the police authorities of the commission of a crime, or even makes to a magistrate a formal charge against another, does so at the peril of being mulcted in damages if he honestly mistake as to the culprit.
The judgment óf the Circuit Court should, in my judgment, be reversed and the cause remanded.