The defendant answers to the complaint: III. That the plaintiff then and there, with force and violence, attempted to break into the said dwelling [or other possession], without the leave and against the will of the defendant. IV. That the defendant thereupon, in order to preserve the peaceable possession thereof, resisted the plaintiff's entrance, and in doing so necessarily assaulted and beat the plaintiff, as he lawfully might; and if the plaintiff sustained any damage, it was occasioned by his own wrong. V. That the acts above mentioned are the same of which the plaintiff complains. The defendant answers to the complaint: I. That as to the alleged assaulting, beating, and ill-treating the plaintiff, the defendant was, at the time thereof, captain of the ship called the ... II. That the plaintiff was then on board of said ship as a seaman [state excuse for beating him, such as mutiny, etc.] III. Wherefore the defendant, for the preservation of the peace, and to preserve due order on said ship [state what was done]. 3618. Justification of master. The master or commander of a vessel, in general, is not liable for chastisement inflicted on a seaman or marine, where he acted under a sincere conviction that it was necessary to enforce discipline or compel obedience to orders, and not from passion or revenge.20 So, where the master acts believing from the circumstances that there is immediate danger from a mutiny.21 20 Dinsman v. Wilkes, 12 How. (U. S.) 390; United States v. Freeman, 4 Mason, 505; Thompson v. Busch, 4 Wash. C. C. 338; Thorne v. White, Pet. Adm. 168. 21 Roberts v. Eldridge, Sprague, 54; United States v. Colby, id. 119: United States v. Lent, id. 311. What degree of misconduct, or circumstances of provocation, on the part of a seaman, will § 3619. Justification of removing plaintiff from railroad car for nonpayment of fare. [TITLE.] Form No. 853. The defendant answers to the complaint: I. That the defendant was, before and at the time when the said supposed grievances were committed, the conductor and had charge of a passenger train on the railroad of the Railroad Company, running from ... II. That one of the regulations of said to .... Rail road Company was, that no person should be permitted to be and remain on such train without having a ticket therefor, duly obtained of their authorized agents. III. That at the time mentioned in the complaint, the plaintiff was on the said train, without having a ticket therefor as aforesaid, and then and there refused to purchase a ticket or to pay his fare. IV. That the defendant then and there requested the said plaintiff to leave the said train, which the plaintiff refused to do; whereupon the defendant then and there gently laid his hands upon the plaintiff, and removed him from the train, doing no unnecessary violence, as he lawfully might do; which is the same act complained of by the plaintiff.22 § 3620. Justification of conductor. A conductor of a train is protected in putting out of the cars a passenger who has refused to pay his fare.23 They are limited to the use of just so much force as may effect that object, and no more,24 and it must be consistent with the safety of the passenger's life.25 Justify corporal punishment or correction by an officer, see Morris v. Cornell, Sprague, 62; Payne v. Allen, id. 304; Sheridan v. Furbur, Blatchf. & H. 423. And as to instruments and modes of punishment, see Benton v. Whitney, Crabbe, 417; Shelter v. York, id. 449; Forbes v. Parsons, id. 283; United States v. Cutler, 1 Curtis C. C. 501; Saunders v. Buskup, Blatchf. & H. 264; Shorey v. Rennel, Sprague, 467; see Noden v. Johnson, 2 Eng. L. & Eq. 201. 22 The above form is taken from Nash's Ohio Pl. & Pr. No. 323. 23 People v. Jillson, 3 Park. Cr. 234; McClure v. Phil., Wil. & Balt. R. R. Co., 34 Md. 532; 6 Am. Rep. 345; Fink v. The Albany, etc., R. R. Co., 4 Lans. 147. And he has implied authority to eject a trespasser from the train. Railroad Co. v. Anderson, 82 Tex. 516; 27 Am. St. Rep. 902. 24 Hibbard v. New York & E. R. R. Co., 15 N. Y. 455. 25 Sanford v. Eighth Ave. R. R. Co., 23 N. Y. 343: 80 Am. Dec. 286; Illinois, etc., R. R. Co. v. Sutton, 53 Ill. 397; Healey v. Railroad Co., 24 Ohio St. 23. Thus, a railroad company may be held liable for forcibly expelling a person from the cars while the train is in motion, and it is no defense that such person was not rightfully on the train.2 26 § 3621. General denial. Where a conductor upon a railroad is sued for a battery in forcibly ejecting a passenger, he can not prove under a general denial the existence of rules of the company, that they were reasonable, and that his acts were done in conformity with such rules.27 The defendant answers to the complaint: That the defendant did not cause said order of arrest [or warrant] to be issued. § 3623. General denial. In an action for malicious arrest, a general denial puts in issue the want of probable cause.1 The denial must be positive. A denial on information and belief will not be allowed.2 The defendant answers to the complaint: That the defendant did not falsely or maliciously, or without probable or reasonable cause, cause the plaintiff to be arrested; nor did he cause plaintiff to be arrested at all. 26 Law v. Illinois Cent. R. R. Co., 32 Iowa, 534; Sanford v. Eighth Ave. R. R. Co., 23 N. Y. 343; 80 Am. Dec. 286; Harrold v. Railroad Co., 47 Minn. 17; Morris v. Railroad Co., 116 N. Y. 552; Kline v. C. P. R. R. Co., 39 Cal. 587; Jackson v. Second Ave. R. R. Co., 47 N. Y. 274; 7 Am. Rep. 448. 27 Pier v. Finch, 29 Barb. 170. 1 Dreux v. Domec, 18 Cal. 83; Rost v. Harris, 12 Abb. Pr. 446; Radde v. Ruckgaber, 3 Duer, 685; Simpson v. McArthur, 16 Abb. Pr. 302. 2 Lawrence v. Derby, 15 Abb. Pr. 346. In an § 3625. How pleaded. answer in an action for malicious prosecution, it is superfluous to set forth facts showing probable cause. And if the allegation of want of probable cause be denied, it is redundant to allege probable cause as a separate defense.* § 3626. Justification under legal process. The defense that the imprisonment was under lawful process must be specially pleaded. And it has been held that to exempt one from liability for causing the arrest on mesne process, it must be apparent not only that he believed, but also that he had reason to believe, the essential facts averred in his affidavit, as in the instance that the debtor was about to leave the state. In Indiana it is not necessary to a constable's justification of an arrest under a capias ad respondendum, issued by a justice, that the writ should be supported by affidavit. But it is otherwise if the justification be attempted by the party or the justice. Where, in an action for false imprisonment, the defendant, by special plea, set up legal process in justification of the imprisonment charged, and then averred that he did not arrest the plaintiff, but that the latter voluntarily gave bail, it was held that the plea was bad for duplicity. Simply pleading a justification, without denying the want of probable cause, admits the latter.10 In an action for false imprisonment, unless the defendant is an officer, the answer should state the circumstances, from which the court may judge whether the suspicion was reasonable.11 As to what constitutes sufficient probable cause to justify a prosecution for larceny, see case cited in note.12 3 Radde v. Ruckgaber, 3 Duer, 684. 4 Rost v. Harris, 12 Abb. Pr. 446. 5 Allen v. Parkhurst, 10 Vt. 557; Wilson v. Railway Co., 20 N. Y. Supp. 852. An answer justifying under a warrant must show that the arrest was the same trespass as charged in the complaint. Young v. Warder, 94 Ind. 357. 6 Gee v. Patterson, 63 Me. 49. 7 Davis v. Bush, 4 Blackf. 330. 8 Id.; See Goodwine v. Stephens, 63 Ind. 112; Wilke v. Holt, 95 id. 469. 9 Stanton v. Seymour, 5 McLean, 267. 10 Morris v. Corson, 7 Cow. 281. 11 Mure v. Kaye, 4 Taunt. 34. 12 Haupt v. Pohlmann, 16 Abb. Pr. 301. Vol. II-97 A justice, justifying his imprisonment of another, must show that he fills the office, not merely de facto. but de jure.13 § 3627. Waiver of right of action. The right of action for false imprisonment may be lost by a waiver thereof. Thus, where the plaintiff was arrested upon an execution improperly issued, and instead of being discharged from execution by the defendant, after three months' confinement, obtained his liberation under the act for the relief of debtors, it was held that he thereby waived the error and affirmed the execution.14 So where a defendant in an action was arrested under a judge's order, and offered bail to the plaintiff's attorneys, and induced them to examine and accept bail, it was held a waiver of any objection to his having been held to bail.15 An agreement not to bring an action for false imprisonment if founded on a good consideration is binding.16 § 3628. Justification of arrest upon suspicion of a felony. Form No. 856. [TITLE.] The defendant answers to the complaint: I. That immediately before the time mentioned in the complaint a felony was committed [briefly state the felony and causes of suspicion against the plaintiff]. II. That thereupon the defendant, who was then and there sheriff of the county of... having reasonable cause to suspect the plaintiff of having committed such felony, arrested him and brought him before J. P., a justice of the peace of ... [or other magistrate], to be dealt with ac cording to law. III. That the above acts are the same of which plaintiff complains.17 § 3629. Defense. It is a good defense for assault and battery that the complainant had committed petit larceny, and 13 Newman v. Tiernan, 37 Barb. 159. See, as to necessity of a full and special plea of justification, when interposable, Brown v. Chadsey, 39 Barb. 253. 14 Reynolds v. Church, 3 Cal. 274; see Fuller v. Bowker, 11 Mich. 204. 15 Dale v. Radcliffe, 25 Barb. 333. 16 See Wentworth v. Bullen, 9 Barn. & Cress. 840. |