repeatedly held that an action would lie | fendant, which in equity and good conagainst a party receiving money under such a contract, upon a promise, implied by law to refund it. Thus, in Smith v. Bromley, 2 Dougl. K. B. 697, note, Lord Mansfield said: 'If the act is in itself immoral, or a violation of the general laws of public policy, there the party paying shall not have this action. But there are other laws which are calculated for the protection of the subject against oppression, extortion, deceit, etc. If such laws are violated, and the defendant takes advantage of the plaintiff's condition or situation, there the plaintiff shall recover.' Lord Mansfield said in Browning v. Morris, Cowp. pt. 2, p. 790: "It is very material that the statute itself, by the distinction it makes, has marked the criminal, for the penalties are all on one side, upon the office keeper." This view of the case is not in conflict with what was decided in Edwards v. Goldsboro, 141 N. C. 60, 4 L.R.A. (N.S.) 589, 8 Ann. Cas. 479, 53 S. E. 652, as in that case there was an illegal agreement which was contrary to public policy, if not contra bonos mores, and the action was for the recovery of money actually paid to carry out the illegal transaction, which was not only forbidden by law, but injurious to the public, and the parties were in pari delicto. In this case the defendants have acquired the plaintiff's timber at an undervalue, upon a promise which they refuse to perform, and seek to shelter themselves behind its alleged illegality. There is nothing contravening public policy in permitting plaintiff to recover at least what he had lost by not receiving a fair and full price for his property, not exceeding the amount named in the contract. Bond v. Montgomery, 56 Ark. 563, 35 Am. St. Rep. 119, 20 S. W. 525; White v. Franklin Bank, 22 Pick. 181; 1 Pom. Eq. Jur. § 403; Sykes v. Beadon, L. R. 11 Ch. Div. 170, 48 L. J. Ch. N. S. 522, 40 L. T. N. S. 243, 27 Week. Rep. 464; 9 Cyc. 546; Bishop, Contr. §§ 628 et seq.; Prescott v. Norris, 32 N. H. 101; Parkersburg v. Brown, 106 U. S. 487, 27 L. ed. 238, 1 Sup. Ct. Rep. 442. The case of Morville v. American Tract Soc. 123 Mass. 129, 25 Am. Rep. 40, is much like the one at bar, and the court there said: "The money of the plaintiff was taken and is still held by the defendant under an agreement which it is contended it had no power to make, and which, if it had power to make, it has wholly failed on its part to perform. It was money of the plaintiff, now in the possession of the de science it ought now to pay over, and which may be recovered in an action for money had and received. The illegality is not that which arises when the contract is in violation of public policy or of sound morals, and under which the law will give no aid to either party. The plaintiff himself is chargeable with no illegal act, and the | corporation is the only one at fault in exceeding its corporate powers by making the express contract. The plaintiff is not seeking to enforce that contract, but only to recover his own money and prevent the defendant from unjustly retaining the benefit of its own illegal act. He is doing nothing which must be regarded as a necessary affirmance of an illegal act." The case of Jaques v. Golightly, 2 W. Bl. 1073, was an action to recover back money paid for insuring lottery tickets. The defendant kept an office for insurance, contrary to the statute (14 Geo. III. chap. 76). It was urged that the plaintiff, being particeps criminis, and having knowingly transgressed a public law, was not entitled to relief, but the action was sustained by the unanimous opinion of the court. Blackstone, J., said: "These lottery acts differ from the stockjobbing act of the 7 Geo. II. chap. 8, because there both parties are made criminal and subject to penalties." See also Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dec. 132. The plaintiff offered to show that the defendants purchased the timber at a greatly reduced price because of the promise to construct the railroad, which evidence the court excluded, and afterwards intimated that the plaintiff could not recover, and compelled him to submit to a nonsuit. We think there was error in both rulings, and a new trial is ordered. There are facts stated in the complaint sufficient, if established, to authorize a judgment in favor of the plaintiff for the difference between what he received for the timber and its true value. NORTH CAROLINA SUPREME COURT. Messrs. Mason & Worrell and Murray Allen for appellant. Messrs. S. T. Stancell, Peebles & Har J. W. DOLES, Admr., etc., of Frank Brown, ris, and Gay & Midyette for appellee. Deceased, A (September 11, 1912.) PPEAL by defendant from a judgment of the Superior Court of Northampton County in plaintiff's favor in an action brought to recover damages for the death of his intestate, which was alleged to have been caused by defendant's negligence. Affirmed. The facts are stated in the opinion. Walker, J., delivered the opinion of the court: It is not necessary to make an extended statement of the facts in this case. The plaintiff's intestate, Frank Brown, was killed at Suffolk, Virginia, while, as alleged, he was boarding the defendant's passenger train at that place, bound for Margaretsville, in this state. The plaintiff's testimony tended to show that the intestate purchased a ticket for his passage from Suffork to his destination, and was in the act of getting upon the passenger coach just after the conductor had given the call, "All aboard!" when the train was started, "at once after who was unable to gain a foothold because the signal was given," and the intestate, of the speed of the train and the crowded condition of the steps and platform of the car, was knocked under the cars by a truck of the Southern Express Company, which had been left on the platform at the station, within a few feet of the passing train, and killed. One witness testified that the train started with a jerk and "with full force," while passengers were trying to alight from the train and the intestate was attempting to get on the steps, and that plaintiff could have been seen by the engineer and the porter, who called for passengers to get aboard. On the contrary, there was evidence tending to show that the train started Note. The correctness of the above de- I was dismissed was the immediate cause cision that one of two joint tort feasors who of the injury. In such circumstances there are jointly sued cannot complain of a non- might have been, in some jurisdictions at suit on the evidence in favor of the other, least, a right to contribution or indemnity, seems very clear. Not only was the action and of course in such jurisdictions the disbased upon the actual and active negligence missal of the action as to such defendant of both defendants, but the evidence showed would be prejudicial error as to the other; that as between the two, the active and since the dismissal, being upon the merits, dominant cause of the injury was the actual would be conclusive upon the latter. negligence of the defendant who objected to general discussion of the question whether the dismissal of the other from the action. the rule denying contribution between joint But even assuming the parties to have been tort feasors is affected by the question of in pari delicto, the case furnishes an appli-proximate cause, in the note in 36 L.R.A. cation of the rule, stated in 22 Cyc. 99, that there can be no contribution or indemnity between joint tort feasors who are in pari delicto, and this would in itself seem to defeat any objection to the dismissal of the action. But as stated, the case presents the additional fact that the negligence of the objecting defendant was the dominant cause of the injury, and this fact would seem to leave no room for the objection whatever. But another question might have been presented had the facts in the case been otherwise; that is, had it appeared that although the negligence of each defendant was a contributing cause as between themselves, the negligence of the defendant who A (N.S.) 583, shows that there is a difference of opinion on the point, and indicates that the New Hampshire cases, at least, make an exception to the rule against contribution, holding that one actual wrongdoer may recover over against another if, by the application of the doctrine of last clear chance, the other's negligence is found to have been the proximate cause of the injury. But in jurisdictions taking the contrary view it would seem that a defendant could not be heard to object that the action was dismissed upon the merits as to his cotortfeasor. See notes in 40 L.R.A. (N.S.) 1147, 1158, 1165. L. A. W. fendant. It appeared that Churchill left his hatchway in an unsafe condition. Defendant's servant, in the performance of his master's business, interfered with it, so that it became more dangerous-that is, the danger already existing by the fault of Churchill was increased-and Mrs. Meston fell into the hatchway, and was thereby injured, at its usual speed, and that intestate was leaving the car, and jumped on the truck, and was killed. There was also evidence that he was warned not to leave the car by the porter, who told him that he would have the train stopped, so that he could get off safely. It may be said, generally, that some of the evidence tended to show negli gence on the part of the defendant, which | and recovered damages of Churchill. It was proximately caused the intestate's death, while there was other evidence which tended to prove that the intestate's death was caused entirely by his own fault in jumping from a rapidly moving train. held that Churchill was not entitled to indemnity or contribution from the defendant Holt, whose servant interfered with the hatchway. With respect to the right of indemnity, upon the facts presented, the court said: "In such a case, both parties, whether they act with a common purpose or independently, aid in creating the danger or nuisance, and it is impossible to apportion the degree of their respective negligence, or to determine by whose individual negligence the injury was caused. They are both wrongdoers, whose unlawful acts contribute to produce the injury. They are in cover indemnity or contribution of the other. The plaintiffs contend that they had the right to go to the jury upon the question whether the sole cause of the injury The court submitted the case to the jury in a charge which fully explained every phase of the evidence and clearly set forth the law applicable to the facts as they might find them to be. The charge of the court was in accordance with the principles laid down in Roberts v. Atlantic Coast Line R. Co. 155 N. C. 79, 70 S. E. 1080, and the essential facts of the two cases cannot well be distinguished. That case must control | pari delicto, and therefore neither can reour decision in this one on all the points raised by the defendant, except the contention that the court should not have entered a nonsuit upon the evidence as to the Southern Express Company. The defendant ob- | to Mrs. Meston was the negligent acts of jected to this ruling of the court, and relies upon Gregg v. Wilmington, 155 N. C. 18, 70 S. E. 1070, to sustain his objection. But we do not see the analogy between the two cases. In that case, Wolvin's negligence was active and the efficient cause of the injury, while the negligence of the city of Wilmington was merely passive, in allowing the dangerous condition, brought about by Wolvin's negligence, to exist in one of its streets. The city did not actually co-operate with Wolvin in committing the wrong to the plaintiff's intestate. In the Gregg Case, approving what is said by Judge Cooley in his treatise on Torts, 3d ed. p. 254, we stated the general rule to be according to the maxim that no man can make his own misconduct the ground for an action against another in his own favor. If he suffers because of his own wrongdoing, the law will not relieve him. The law cannot recognize equities as springing from a wrong in favor of one who was concerned in committing it. 155 N. C. 24, 70 S. E. 1070. Where two or more persons have participated in the commission of a wrong, the general rule undoubtedly is that a right to contribution or indemnity will not arise in favor of the one held responsible by the injured party. 38 Cyc. 493. There are exceptions to the rule, but this case is not in cluded in any of them. The case of Churchill v. Holt, 131 Mass. 67, 41 Am. Rep. 191, seems to be a strong authority against the contention of the de the defendant's servant. We must presume that proper instructions were given as to other aspects of the case; but, in the aspect of the case supposed in the instruction we are considering, that is, if the jury found that the plaintiffs negligently left the hatchway in a dangerous condition, and that the acts of the defendant's servant merely made it more dangerous, it is imposible for the jury to find that the fault of the plaintiffs did not contribute to the injury. It is like the case of a man injured by falling into a hole dug partly by one person and partly by another. The acts of both aid in creating the danger which causes the injury, and it cannot be ascertained whether the acts of one excluding the acts of the other would have caused the same injury. If the acts are unlawful, both are wrongdoers in pari delicto, and, though each would be liable to the person injured, neither could recover indemnity or contribution of the other." Ibid. When the same case was before the court on a former appeal (127 Mass. 165, 34 Am. Rep. 355), it was said: "The rule that one of two joint tort feasors cannot maintain an action against the other for indemnity or contribution does not apply to a case where one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability. In such case the parties are not in pari delicto, as to each other, though as to third persons either may be held liable." But that is not our case. Here the express company left the truck near the track of the railroad company, and, if this was a negligent act, it would not have harmed the intestate if the defendant had not also been negligent. The two acts concurred in producing the injury, and, upon the assumption that the express company was negligent, it and the railroad company were joint tort feaŝors as to the plaintiff and as between themselves, and there is no right of indemnity or contribution. It may also be said that the defendant's wrong was the active and dominant cause of the injury, without which it would not have occurred, and it therefore has no ground whatever upon which to base a claim for compensation against its codelinquent. Lexington v. Ætna Indemnity Co. 155 N. C. 219, 71 S. E. 214. We find no error in the record. city in its corporate capacity, but in the interest of the public. A city is therefore not liable for the acts of its officers in attempting to enforce such regulations, and further because police officers can in no sense be regarded as servants or agents of the city. Their duties are of a public nature. Their appointment is devolved upon cities and towns by the legislature as a convenient mode of exercising a function of government; but this does not render the cities and towns liable for their assaults, trespasses, or negligent acts. Police wrongful arrest liability. 2. Policemen, as such, were unknown to statute, and can exercise only such power the common law. They are creatures of and authority as has been granted by legislative enactment; yet, the office being authorized by statute, the policeman is a conservator of the peace, and has the right to arrest violators of the laws, ordinances, and police regulations, without warrant, as provided by statute; but he is not exempt from civil liability when he acts in a wrongful, oppressive, and illegal manner, and the general doctrines of the law touching personal liability for torts apply to policemen. Liability of an officer for mak- | question in any case, so far as the present ing an arrest. This note is intended to cover only cases decided since the preparation of the note on the same question in 51 L.R.A. 193. As to the liability of an officer for using criminal process to collect a debt, see the note in 24 L.R.A. (N.S.) 301. As to the liability of a sheriff, marshal, or constable for his deputy's tort in making an arrest, see note in 12 L.R.A. (N.S.) 1019. As to the liability of the sureties on the bond of an officer for an illegal arrest, see the note in 33 L.R.A. (N.S.) 275, supplementing subdivision VI. of the note in 51 L.R.A. 193. inquiry is concerned, is whether the arrest or detention is to be deemed unlawful on the part of the officer, and its answer, of course, depends upon whether he had a valid warrant, or whether the circumstances were such as to justify an arrest without a warrant, and upon other attendant circumstances. An action for false imprisonment cannot be based upon an arrest under a warrant which was fair on its face. Schnider v. Montross, 158 Mich. 263, 122 N. W. 534. In other words, an officer is not liable in an action for false imprisonment for mak As to municipal liability for torts of police officers, see note in 12 L.R.A. (N.S.)ing an arrest under a process regular on 537. And more specifically as to the liability of a municipality for acts which are not essentially police functions, but which are connected therewith, see the note in 17 L.R.A. (N.S.) 741. It is said in 19 Cyc. 332, that normally any and every natural person, including legislators. irrespective of his public or private character or his personal status, is liable in an action for false imprisonment, whenever such person appears unlawfully to have detained another. This being true, the real its face issued by a court having jurisdiction, he having no notice or knowledge of any irregularity in the proceedings or in the process. Rowe v. Reneer, 30 Ky. L. Rep. 545, 99 S. W. 250. So a governor's extradition warrant which is fair on its face will protect a sheriff in an action for malicious prosecution if he proceeds according to law, although he may in fact bear malice toward the fugitive. Regan v. Jessup, 34 Tex. Civ. App. 74, 77 S. W. 972. In Campbell v. Hyde, 92 Ark. 128, 122 S. Mr. Charles C. Black, for plaintiffs in error: The arrest was not such an act as the city under any circumstances could be held liable for. 4 Dill. Mun. Corp. 5th ed. § 1656; Marth v. Kingfisher, 22 Okla. 602, 18 L.R.A. (N.S.) | 1238, 98 Pac. 436; Peters v. Lindsborg, 40 Kan. 654, 20 Pac. 490; Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949; Bartlett v. Columbus, 44 L.R.A. 795, and note, 101 Ga. 300, 28 S. E. 599; Cook v. Macon, 54 Ga. 468; Gullikson v. McDonald, 62 Minn. 279, 64 N. W. 812. Mr. W. E. Earl for defendant in error. W. 99, in which it appeared that the warrant was valid upon its face and was pro- | cured by the officer on his own affidavit, the court said in a general way that if the warrant is valid upon its face, the officer is protected, even though it was improvident or wrongfully issued, and then added that the person who procures the issuance of a writ though he act maliciously, is not liable for false imprisonment, but is liable, if at all, in an action of malicious prosecution. It appeared in this case that the officer acted in good faith upon statements made to him by other persons. A constable who sends a justice's warrant to another county, and subsequently receives the prisoner from the sheriff of that county, and the sheriff who makes the arrest, are liable for false imprisonment where the sheriff made the arrest without obtaining the indorsement of a justice of the peace of his own county, as required by statute. Sneed v. McFatridge, 43 Tex. Civ. App. 592, 97 S. W. 113. jurisdiction of issuing court. Where the court issuing the invalid process is without jurisdiction in the cause, the process affords no protection to an of ficer making arrest, no matter with what good faith he may act in the premises; and this is especially true where the writ shows lack of jurisdiction on its face. Stephens v. Wilson, 115 Ky. 27, 72 S. W. 336. So an officer is not protected from liability in an action for false imprisonment, where the warrant showed upon its face that it was issued to apprehend the accused for an offense over which the justice had no jurisdiction. Heller v. Clarke, 121 Wis. 71, 98 N. W. 952. And a warrant is insufficient to relieve an officer from liability for arresting a tax debtor under it, where, though issued by the tax collector in pursuance of a statute authorizing its issuance to distrain the person or property of any person delinquent in paying his taxes, "after the expiration of the time fixed for payments by vote of the town," the warrant does not show that the town had voted upon the matter, or that the collector had issued the summons required Robertson, C., filed the following opin ion: The defendant in error, James G. Harkins, filed his petition in the district court of Comanche county on September 30, 1907, and, among other things, charged that John Lantznester, one of the plaintiffs in error, was, on August 6, 1907, a police officer of the city of Lawton, charged with the duties as such, to "enforce the laws and ordinances of such city, and keep the peace, arrest all violators of the laws and ordinances of the city, and the disturbers of the peace of said city, and bring them before the police judge, and file complaint against the by law. Jacques v. Parks, 96 Me. 268, 52 Atl. 763. And an officer is liable in an action for false imprisonment for arresting a person upon a warrant which is void because the complaint upon which it is based was signed by a person not authorized by statute to sign it. Goodell v. Tower, 77 Vt. 61, 107 Am. St. Rep. 745, 56 Atl. 790. But a distinction is to be observed between entire lack of jurisdiction and excess of jurisdiction. An officer is protected in making an arrest under a warrant issued by a magistrate having authority to issue process in case of a violation of a particular ordinance, where, although the ordinance may be invalid, its invalidity has not been judicially determined. Bohri v. Barnett, 75 C. C. A. 327, 144 Fed. 389. Indeed the invalidity of an ordinance under which a magistrate acts in issuing the warrant will not render the officer who serves it liable for false imprisonment, where the magistrate has general jurisdiction over the subject-matter, and the process is not void on its face. Rush v. Buckley, 100 Me. 322, 70 L.R.A. 464, 61 Atl. 774, 4 Ann. Cas. 318. So an officer is justified in arresting one engaged in peddling without obtaining the license required by an ordinance, under a warrant issued by a magistrate having power to issue it, although the peddler is authorized to ply his trade under a state license. Bohri v. Barnett, supra. And a judgment of a municipal court authorizing the enforcement of the payment of a fine by labor upon the street, though void for want of authority of the municipality thus to enforce the payment of a fine, will protect an officer in arresting the defendant, if he acted in good faith in attempting to execute the judgment. Williams v. Sewell, 121 Ga. 665, 49 S. E. 732. As said in Weigel v. Brown, 194 Fed. 652, an officer is protected by process emanating from a court having general jurisdiction in the premises, although in the particular case and for a particular reason its command may be in excess of its jurisdiction; but where the mandate on its face commands that which the court has no authority to order, an officer is not protected in its execution. |