Colter v. Lower and Others.

and without probable cause, it is malicious prosecution. If it has been extra-judicial, without legal process, it is false imprisonment. In Turpin v. Remy, 3 Blackf. 210, it was said by STEVENS, J., in delivering the opinion of the court, "An action for a malicious prosecution can only be supported for the malicious prosecution of some legal proceeding, before some judicial officer or tribunal. If the proceedings complained of are extra-judicial, the remedy is trespass, and not an action on the case for a malicious prosecution." In Johnstone v. Sutton, 1 T. R. 544, it is said in speaking of the action for malicious prosecution, "There is no similitude or analogy between an action of trespass, or false imprisonment, and this kind of action. An action of trespass is for the defendant's having done that, which, upon the stating of it, is manifestly illegal. This kind of action is for a prosecution, which, upon the stating of it, is manifestly legal."

The cases for false imprisonment in this court, we think, fully maintain this distinction, and show that malice does not enter into consideration in actions for that cause.

The case

of Taylorv. Moffatt, 2 Blackf. 305, was for false imprisonment, and the defendant was held liable because the judge, who awarded an attachment, at his instance, for violation of an injunction, was held to have no jurisdiction to do so, and the defendant was subjected to the payment of three thousand dollars damages. There was no indication of malice. In Hall v. Rogers, 2 Blackf. 429, the defendant was held liable, because the charge on which the arrest and imprisonment took place was not legally sufficient. See also Wasson v. Canfield, 6 Blackf. 406; Poulk v. Slocum, 3 Blackf. 421.

to

No proof of malice or want of probable cause is necessary make out a case for false imprisonment. 2 Starkie's Ev. 1112.

It frequently happens that false imprisonment includes a battery, but it is obvious that the latter is not necessarily included in the former. 2 Starkie's Ev. 1113.

An action for malicious prosecution may be maintained, although there has been no imprisonment.

Kerr v. The State, ex rel. Wray.

That the plaintiff was assaulted and beaten, or that the arrest and imprisonment were otherwise accompanied with malice or other indignities, may, no doubt, be given in evidence, as tending to affect the amount of damages. 2 Starkie's Ev. 1114.

We regard the complaint as setting out a good cause of action. If there was any legal justification for the acts alleged to have been committed by the defendants, it devolves on them to set it up in their defense.

The judgment is reversed, with costs, and the cause remanded.

F. McCabe and J. M. Butler, for appellant.

W. P. Rhodes and W. Z. Stuart, for appellees.

KERR V. THE STATE, on the Relation of WRAY.

FOOR PERSON-Where one has been permitted to prosecute or defend as a poor person, the court must assign him an attorney and all other officers requisite for the prosecution or defense.

SAME.-Clerk. If the clerk is not assigned as one of the officers requisite, he will not be bound to furnish a transcript of the proceedings gratuitously. SAME.-Ability to Labor.-Where a party is permitted to prosecute or defend as a poor person, the action of the court cannot be questioned by showing that the person is of sufficient physical ability to labor for and acquire the necessary means to defend or prosecute; if he has not the means, it is immaterial whether the want of means has arisen from one cause or another. PLEADING.-Fraud.—To make a good charge of fraud, it must be shown in what the fraud consisted.

APPEAL from the Fountain Circuit Court.

DOWNEY, C. J.-Two errors are assigned in this case: first, the insufficiency of the complaint; second, the sustaining of the demurrer of the relator to the answer of the appellant.

The complaint alleges that Wray had sued one Sangster, in the circuit court; that there was a trial by jury, verdict

Kerr v. The State, ex rel. Wray.

for the defendant, motion for a new trial overruled, and judg ment rendered; that a bill of exceptions was filed and an appeal prayed and allowed to this court; that the plaintiff, Wray, then filed his petition to be allowed to prosecute said action as a poor person; that the court granted the prayer of said petition, and ordered that the plaintiff be permitted to prosecute said action as a poor person, appointed Richard M. Nebeker as his counsel, who demanded of the appellant, who was then the clerk of said court, to make out and certify a transcript in said case, which he refused to do.

The defendant was required to show cause why a mandate should not issue against him, requiring him to make out, certify, and deliver the transcript to the relator.

The defendant showed cause by filing an answer, or return, alleging, that the relator was not a poor person in contemplation of law; that the order of the court permitting him to prosecute as a poor person was wrongfully and fraudulently obtained; that the court was imposed upon by the said relator and his attorney; that Wray is a stout, ablebodied man and abundantly able to labor for the means necessary to pay for the transcript; that he is in no way incapacitated from performing manual labor, and has no one dependent upon him for support; that if he is in indigent circumstances, it is wholly attributable to his indolence and laziness; that if he would use ordinary industry, he would have abundant means to pay the fees for said transcript, as well as the costs in the case; that it will require several days of hard labor to prepare said transcript; and that the fees therefor will be worth thirty or forty dollars; and respondent insists that it will be burdensome and outrageous to compel him to expend so much labor gratuitously for a person who is able to pay a compensation therefor.

There was a demurrer to this answer, or return, which was sustained by the court, and an exception taken by the defendant.

The defendant failing to make any further defense, judgVOL. XXXV.-19

Kerr v. The State, ex rel. Wray.

ment was rendered that he make out and deliver the transcript within thirty days.

From this judgment the defendant appeals to this court.

son.

The statute allowing persons to prosecute or defend in forma pauperis is as follows: "Any poor person, not having sufficient means to prosecute or defend an action, may apply to the court in which the action is intended to be brought, or is pending, for leave to prosecute or defend, as a poor perThe court, if satisfied that such person has not sufficient means to prosecute or defend the action, shall admit the applicant to prosecute or defend as a poor person, and shall assign him an attorney to defend or prosecute the cause, and all other officers requisite for the prosecution or defense, who shall do their duty therein without taking any fee or reward therefor from such poor person." 2 G. & H. 44, sec. 15.

It will be seen that the court must, when the applicant has been admitted to prosecute as a poor person, assign him an attorney, "and all other officers requisite for the prosecution or defense." It does not appear that the clerk was assigned in this case as one of the "other officers requisite," &c., and therefore it is not shown that he was bound to make out and furnish the required transcript gratuitously. For this reason the complaint was bad.

We think the court committed no error in sustaining the demurrer to the answer, or return. The fact that the relator was of sufficient physical ability to labor for and acquire the means necessary to procure the transcript, is not a sufficient answer to the rule. If the party has not the means, it seems to be immaterial under the statute whether the want of means arose from one cause or another. The court, "if satisfied," &c., "shall admit the applicant," &c.

It is also questionable whether an officer who has been ordered to perform services gratuitously for a poor person can in this way controvert the correctness of the order. The allegation of fraud here is clearly insufficient. It does not show in what the fraud consisted, which is essential to make

The Pittsburgh, Cincinnati, and St. Louis Railway Company v. Kain.

a good charge of fraud. Keller v. Johnson, II Ind. 337; Webster v. Parker, 7 Ind. 185.

The judgment is reversed, with costs, and the cause remanded.

W. A. Tipton, for appellant.
R. M. Nebeker, for appellee.

THE PITTSBURGH, CINCINNATI, AND ST. LOUIS RAILWAY COMPANY V. KAIN.

EVIDENCE. Variance.-A complaint against the P., C., and St. L. railway company, charging that a railroad corporation known as the C., C., and I. C. railway company killed an animal belonging to the plaintiff, and after the killing consolidated with another railroad company, and is now run and known as the P., C., and St. L. railway company, is not supported by the evidence, if the evidence fails to show the consolidation charged.

RAILROADS.-Lease.-Liability for Torts.-A railroad company, running and operating a railroad under a lease from another railroad company, cannot be held liable, either at common law or by virtue of the statute, for torts committed by the lessor prior to the execution of the lease.

APPEAL from the Lake Common Pleas.

WORDEN, J.-This was an action by the appellee against the appellant. The complaint charges, that in January, 1868, a railroad corporation known as the Chicago, Columbus, and Indiana Central Railway Company, by her locomotive and cars, ran upon and killed a horse of the plaintiff, in said county of Lake, at a point where the road was not fenced; that after the horse was killed, said last named company consolidated with another railway company, and is now managed and controlled by and under the company name of the Pittsburgh, Cincinnati, and St. Louis Railway Company.

The general denial was pleaded, and the cause was tried by the court, resulting in a finding and judgment for the plaintiff, a motion for a new trial being overruled.