On rehearing the opinion of the court was delivered by Nici-iolls, 0. J.
The opinion of the court was delivered by
WatKINS, J.This suit was brought against the sheriff, and several private individuals as the sureties upon his official bond for the recovery from them in solido of the sum of $8300.00 as damages for his alleged illegal and wrongful arrest and incarceration in the parish jail for a period of eight days.
The case was tried by a jury, who rendered a verdict in favor of the defendants] and from that verdict and the judgment thereon rendered, the plaintiff prosecutes this appeal — a motion having been made for a new trial on the sole ground that the verdict of the jury was contrary to the law and the evidence, and overruled.
The petitioner represents, that he was peaceably and lawfully engaged in getting out staves at a place about seventeen miles from Monroe, in the parish of Ouachita, when a deputy of the defendant sheriff “arrested him without reading any warrant or having any warrant in his possession”, and carried him to Monroe at 9 o’clock at night and incarcerated him in jail. That at that time the defendant *715“read to petitioner a warrant for the arrest of Ben Franklin; and notwithstanding petitioner protested and declared that he was not Ben Franklin; and notwithstanding- the said sheriff and his deputy-well knew petitioner and his family, they proceeded forcibly and unlawfully to incarcerate and hold him in jail, illegally, and unlawfully, without warrant of law, and without probable cause, for a period of eight days, when he was released by said sheriff.”
Petitioner charges, that in making- his arrest, the sheriff had no right or cause whatever therefor; but that in so doing “he acted recklessly and wantonly in an effort to make a reward which was said to have been offered for the capture of one Ben Franklin (who was) charged with having- committed murder in the State of Alabama.”
That the sheriff did thus arrest and incarcerate him without having- “the slightest reason to suppose that petitioner was Ben Franklin; and that he had no requisition or papers whatever to authorize or warrant (this) arrest.”
He alleges that he married his wife in the parish of Ouachita in the month of September, 1893, and since that time has resided in that parish, openly and publicly, and has settled homestead and acquired a small amount of property therein; and at the time of his arrest, was engaged in getting out staves — this suit having been filed on the 11th of June, 1897.
Then follow the specific grounds upon which his demand for damages is predicated.
The several defendants unite in one answer and specially deny each and every allegation in the petition contained; and further specially aver, “that the defendant sheriff acted in the performance of the duties of his office, without malice, and upon probable cause.”
The testimony of the plaintiff, as a witness, circumstantially corroborates the allegations of his petition.
It appears from the evidence, that during the progress of the trial in the lower court, the plaintiff was twice arrested under three different warrants'; once as George II. Wells, under an indictment preferred against him by the grand jury of Ouachita, on the charge of obtaining goods under false pretenses; and again under two different warrants, as Ben Franklin, charging him with the commission of miirder in the State of Alabama in the latter part of the year 1891— a date two years prior to that of his alleged marriage in Ouachita parish.
*716That, contemporaneously with the foregoing, he was likewise arrested, under a warrant and a requisition; and that he was only liberated therefrom under a writ of habeas corpus subsequent to the trial and decision of this civil suit for damages.
There were many witnesses interrogated and who gave their testimony at great length and in detail, with regard to the circumstances of the plaintiffs arrest and incarceration in jail; and of his subsequent release from custody, by the defendant, sheriff, voluntarily. Also, of his subsequent re-arrest under other warrants, and an Alabama requisition as a murderer and a refugee from justice.
That these arrests were made upon the theory that the plaintiff was Ben Franklin of Alabama; and that the sheriff released him upon the ground of possibly mistaken identity.
The plaintiff is one of those persons who has pursued the humbler walks of life, having' always been in impecunious circumstances.
He came to Louisiana a few years prior to his arrest, and lived in comparative obscurity, and was not possessed of many acquaintances.
A rumor was bruited about, that an Alabama refugee from justice was wanted upon a charge of murder, and for whose arrest a reward had been offered by the authorities of that State.
Suspicion pointed the plaintiff out, and straightway one of the defendant sheriff’s deputies came upon him by surprise whilst he and his companions were at work in the woods, and promptly arrested him and carried him to jail; and then for the first time was a warrant for the arrest of Ben Franklin read to him by the defendant, sheriff.
The plaintiff vigorously protested that he was not Ben Franklin, and was innocent of the charge; but his protest was utterly unavailing.
During the time the plaintiff remained in jail, an investigation was set on foot both in Louisiana and Alabama for the purpose of establishing his identity as Ben Franklin. There were some persons who held to the theory of his identity, whilst there were others who were in doubt.
Finally, upon mature deliberation, the sheriff made up his mind to release him from custody; and this suit speedily followed with the result already stated.
That he was subsequently arrested, and again incarcerated in jail under warrants formally issued, and from which plaintiff only procured his release upon habeas corpus proceedings, is a circumstance *717which has its weight and must be considered in determining- the issue before us.
The suggestion, is offered, that those proceedings were not in good •faith and only,intended to exercise an influence upon the minds of the court and jury in the decision of this suit.
We do not think this suggestion is borne out by the evidence, and the judgment of this court must not be guided by inferences merely.
Under these circumstances, we are pressed to set aside a verdict of a jury, say the judge a quo erroneously refused to grant a rehearing, and render a judgment against the defendants in damages.
We can not see our way to this result.
We do not regard the evidence as having established that the sheriff or his deputies acted without probable cause in making plaintiff’s arrest, and in incarcerating him in jail. The record is barren of evidence tending to show malice on his part.
The sheriff acted 'circumspectly and with due deliberation, and within the bounds of his duty and discretion as a public officer. His duties are frequently delicate and difficult, and his responsibilities are great; and this record furnishes no proof of any tendency on his part to wantonly abuse them.
Judgment affirmed.
Nioitolls, C. J., dissents.