Hall, Justice.
1. The first question to be considered in this case is, whether the amended plea of the defendant, filed and allowed during the progress of the trial, is a plea in justification of the plaintiff’s arrest and imprisonment, or is merely an amplification of the general issue of not guilty? [258]*258Without this plea, could the defendant, under the general issue, have introduced the evidence by which it sought to justify the plaintiff’s arrest and imprisonment ? The only count in the declaration on which the trial was had alleged that the defendant, on the day named therein, wrongfully and unlawfully imprisoned and detained the plaintiff in the police barracks of the city of Savannah, falsely pretending that he was guilty of the crime of larceny from the vessel; and that by reason thereof he was deprived of his liberty for the space of twenty-six hours, and was greatly harassed and oppressed, subjected to trouble and expense, deprived of employment, his character and reputation seriously damaged, and he was put to great suffering.
Now, what did the plea of not guilty put in issue, and what proof was admissible thereunder? “ In trespass to the person, personal or real property, the defendant, under the general issue of not guilty, can give in evidence matter which directly controverts the fact of his having committed the acts complained of; as in trespass for assault and battery, with a tearing of clothes, a plea of not guilty of the assault modo et forma, was held to operate as a denial of the battery and laceravit as well as the assault.” i Chitty’s Plead., 534, 535. So our Code, §3458, after defining what a plea of the general issue is, provides that no other evidence is admissible under such plea, except such as disproves the plaintiff’s cause of action, and other matters in satisfaction (confession?) or avoidance must be specially pleaded. See upon this section 44 Ga., 199, which is fully in point with the present case.
In all such cases Mr. Chitty, 1 Plead., 535, says, “matters in discharge or confession and avoidance of the action must be specially pleaded.” Again, “the plea of not guilty, therefore, is proper in trespass to person, if the defendant committed no assault, battery or imprisonment; but in trespass to person son assault demesne, the moderate correction of servant, molliter manus imposuit to pre[259]*259serve the peace, or a justification in defence of the possession of real or personal property, by authority of law without process, as a private individual, must always have been pleaded specially.” Ib., 535, 536.
“A plea,” he says, “justifying an arrest of the plaintiff upon the ground that a felony had been committed, and that there was reasonable ground to suspect and accuse the plaintiff, must distinctly state the specific reasons for suspecting the plaintiff. And a plea justifying assault and imprisonment on the ground of a breach of the peace committed by the plaintiff, must show that the breach of the peace was continuing, or show facts from which a renewal of the breach was to be apprehended, and as little as possible should be left to inference.” Ib.
“These are positive rules of law, in order to prevent surprise on the plaintiff at the trial by the defendant then assigning various reasons and causes for imprisoning the plaintiff, of which he had no notice, and which consequently, he could not be prepared to meet at the trial on a plea of not guilty on fair and equal terms with respect to the evidence and proof of facts.” Ib., 536, 537.
A striking instance of the application of this rule is afforded by the case of Brooks vs. Ashburn et al., 9 Ga., 297, which was an action of trespass on the case for killing a slave, to which the defendants filed the plea of the general issue and sought to justify themselves thereunder by showing that they were acting as patrol when the slave was killed; they relied upon the act of 1770, which declared that “ if any person shall be, at any time, sued for putting in execution any of the powers contained in the act, such person shall and may plead the general issue, and give the special matter and this act in evidence;” but this was not allowed by the court for two reasons: because this was a common action of trespass; the defendants were not sued for putting in execution the powers contained in the act of 1770, and could only avail themselves of the proof under a special plea of justification. This, the court [260]*260ruled, was requisite under the 9th section of our judiciary act of 1799, which required the defence to be plainly, fully and distinctly set forth.
The plea in the case before us comes substantially up to these requirements. It sets forth that the plaintiff was at the time one of the defendant’s servants, who, with others, had custody of the goods stolen on the vessel; that he and his associates could alone have been guilty of the theft, and particularizes each and all the circumstances that gave the defendant reasonable and probable grounds to suspect the guilt of this party and to cause his arrest, imprisonment and detention, and it avers that he was not detained in custody an unreasonable length of time. We hold this a good plea in justification of the conduct of the defendant, and it gave him the right to open and conclude the argument of the case to the jury.
2. In every case of tort, if the defendant was authorized by law to do the act complained of, he may plead the same as a justification ; by such plea he admits the act to be done, and shall be entitled to all the privileges of one holding the affirmative of the issue. Code, §3051. Among these privileges, and perhaps the most important of all of them, is that of opening and concluding the argument of the case to the jury. This privilege was denied him because, as it was said, the plea was not filed until the plaintiff had made out his case and closed his evidence., This objection is fully met and answered by this court in Ransone vs. Christian, 56 Ga., 354.
3. It is claimed, moreover, that the plea is defective, in that it does not admit all that is charged against the defendant in the declaration ; it does not of course admit, as was insisted that it should admit, that the imprisonment was wrongful and unlawful; that, instead of being a plea of justification, would have amounted to a confession of judgment to the plaintiff. All that the defendant' was required to admit by its plea was the imprisonment and the manner thereof as charged in plaintiff’s declaration. 49 Ga., 491.
[261]*2614. The defendant in the court below insists that inasmuch as the evidence in the case shows that the damages awarded by the verdict were made up of counsel fees paid and promised by the plaintiff, and of costs paid by him to the magistrate, and as it had not been shown that defendant acted in “ bad faith,” or was “ stubbornly litigious,” or caused plaintiff unnecessary trouble and expense, the verdict was wrong, and should be set aside.
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Hall, Justice.
1. The first question to be considered in this case is, whether the amended plea of the defendant, filed and allowed during the progress of the trial, is a plea in justification of the plaintiff’s arrest and imprisonment, or is merely an amplification of the general issue of not guilty? [258]*258Without this plea, could the defendant, under the general issue, have introduced the evidence by which it sought to justify the plaintiff’s arrest and imprisonment ? The only count in the declaration on which the trial was had alleged that the defendant, on the day named therein, wrongfully and unlawfully imprisoned and detained the plaintiff in the police barracks of the city of Savannah, falsely pretending that he was guilty of the crime of larceny from the vessel; and that by reason thereof he was deprived of his liberty for the space of twenty-six hours, and was greatly harassed and oppressed, subjected to trouble and expense, deprived of employment, his character and reputation seriously damaged, and he was put to great suffering.
Now, what did the plea of not guilty put in issue, and what proof was admissible thereunder? “ In trespass to the person, personal or real property, the defendant, under the general issue of not guilty, can give in evidence matter which directly controverts the fact of his having committed the acts complained of; as in trespass for assault and battery, with a tearing of clothes, a plea of not guilty of the assault modo et forma, was held to operate as a denial of the battery and laceravit as well as the assault.” i Chitty’s Plead., 534, 535. So our Code, §3458, after defining what a plea of the general issue is, provides that no other evidence is admissible under such plea, except such as disproves the plaintiff’s cause of action, and other matters in satisfaction (confession?) or avoidance must be specially pleaded. See upon this section 44 Ga., 199, which is fully in point with the present case.
In all such cases Mr. Chitty, 1 Plead., 535, says, “matters in discharge or confession and avoidance of the action must be specially pleaded.” Again, “the plea of not guilty, therefore, is proper in trespass to person, if the defendant committed no assault, battery or imprisonment; but in trespass to person son assault demesne, the moderate correction of servant, molliter manus imposuit to pre[259]*259serve the peace, or a justification in defence of the possession of real or personal property, by authority of law without process, as a private individual, must always have been pleaded specially.” Ib., 535, 536.
“A plea,” he says, “justifying an arrest of the plaintiff upon the ground that a felony had been committed, and that there was reasonable ground to suspect and accuse the plaintiff, must distinctly state the specific reasons for suspecting the plaintiff. And a plea justifying assault and imprisonment on the ground of a breach of the peace committed by the plaintiff, must show that the breach of the peace was continuing, or show facts from which a renewal of the breach was to be apprehended, and as little as possible should be left to inference.” Ib.
“These are positive rules of law, in order to prevent surprise on the plaintiff at the trial by the defendant then assigning various reasons and causes for imprisoning the plaintiff, of which he had no notice, and which consequently, he could not be prepared to meet at the trial on a plea of not guilty on fair and equal terms with respect to the evidence and proof of facts.” Ib., 536, 537.
A striking instance of the application of this rule is afforded by the case of Brooks vs. Ashburn et al., 9 Ga., 297, which was an action of trespass on the case for killing a slave, to which the defendants filed the plea of the general issue and sought to justify themselves thereunder by showing that they were acting as patrol when the slave was killed; they relied upon the act of 1770, which declared that “ if any person shall be, at any time, sued for putting in execution any of the powers contained in the act, such person shall and may plead the general issue, and give the special matter and this act in evidence;” but this was not allowed by the court for two reasons: because this was a common action of trespass; the defendants were not sued for putting in execution the powers contained in the act of 1770, and could only avail themselves of the proof under a special plea of justification. This, the court [260]*260ruled, was requisite under the 9th section of our judiciary act of 1799, which required the defence to be plainly, fully and distinctly set forth.
The plea in the case before us comes substantially up to these requirements. It sets forth that the plaintiff was at the time one of the defendant’s servants, who, with others, had custody of the goods stolen on the vessel; that he and his associates could alone have been guilty of the theft, and particularizes each and all the circumstances that gave the defendant reasonable and probable grounds to suspect the guilt of this party and to cause his arrest, imprisonment and detention, and it avers that he was not detained in custody an unreasonable length of time. We hold this a good plea in justification of the conduct of the defendant, and it gave him the right to open and conclude the argument of the case to the jury.
2. In every case of tort, if the defendant was authorized by law to do the act complained of, he may plead the same as a justification ; by such plea he admits the act to be done, and shall be entitled to all the privileges of one holding the affirmative of the issue. Code, §3051. Among these privileges, and perhaps the most important of all of them, is that of opening and concluding the argument of the case to the jury. This privilege was denied him because, as it was said, the plea was not filed until the plaintiff had made out his case and closed his evidence., This objection is fully met and answered by this court in Ransone vs. Christian, 56 Ga., 354.
3. It is claimed, moreover, that the plea is defective, in that it does not admit all that is charged against the defendant in the declaration ; it does not of course admit, as was insisted that it should admit, that the imprisonment was wrongful and unlawful; that, instead of being a plea of justification, would have amounted to a confession of judgment to the plaintiff. All that the defendant' was required to admit by its plea was the imprisonment and the manner thereof as charged in plaintiff’s declaration. 49 Ga., 491.
[261]*2614. The defendant in the court below insists that inasmuch as the evidence in the case shows that the damages awarded by the verdict were made up of counsel fees paid and promised by the plaintiff, and of costs paid by him to the magistrate, and as it had not been shown that defendant acted in “ bad faith,” or was “ stubbornly litigious,” or caused plaintiff unnecessary trouble and expense, the verdict was wrong, and should be set aside. While we may entertain an opinion as to the manner in which the jury reached the amount of their verdict, we cannot say certainly, from anything that appears in the record, that the result was attained in the mode specified; and even if it had been, we are not prepared to hold that “ bad faith,” or “ stubborn litigiousness,” or “ unnecessary trouble and expense,” caused by the defendant to the plaintiff, should concur with other things in order to make the items specified proper ingredients to enter into a computation of damages in such a case; if such expenses were the immediate and necessary consequences of the act complained of, they should, in any view, be taken into consideration in estimating the damages. In all cases, necessary expenses consequent upon the injury done are a legitimate item in the estimate of damages. Code, §3068.
Again, it is urged that there was no allegation in the only count contained in plaintiff’s declaration on which the case was tried, that authorized the admission of these items in evidence. To that it has been replied, and we think successfully, that the evidence was admitted without objection ; that if objection had been made when it was offered, the declaration could have been amended so as to let it in, and no motion having been made to rule it out, the judge properly charged the jury as to its effect and influence.
5. The court did not err in refusing to non-suit plaintiff on the first count in his declaration for false imprisonment. There was sufficient evidence to carry the case on that count in the declaration to the jury.
[262]*2626. Nor was the judge’s charge wrong in relation to the responsibility of the party causing the arrest; it having been admitted that the first arrest was legal, of course the party causing it to be made was not responsible for things done by the officer, or person in charge of the prisoner, after the arrest, unless it could be shown to have been done by his authority or that he caused it. Whether there is testimony in this record to authorize the qual fication as set forth in the last paragraph of this charge, we will not now decide. For obvious reasons this would be improper.
7. The judge’s charge upon the effect the plea of justification would have, if not proved, upon the damages, was substantially correct; it only went so far as to instruct the jury that they might in that event consider it as authorizing them to give additional damages.
8. There is no allegation in either count of plaintiff's declaration, either general or special, which authorized any proof as to the hársh treatment of the plaintiff while confined in the police barracks, or while under arrest upon the warrant issued, and while being carried before the magistrate issuing the warrant; and without such allegation, the objection made by the defendant to the testimony should have been sustained. The allegata and probata, by an amendment, could have been made to correspond, but no amendment was offered or made. This can be done on another hearing. See 56 Ga., 61.
9. That it was the duty of the party making or causing the arrest to convey the person arrested without delay before the most convenient officer authorized to receive an affidavit and issue a warrant, is too plain to admit of cavil or dispute. This results from the language of the Code: “ Wherever the arrest is made by a private citizen who is present át the commission of. the offence and sees it committed, or who acts upon reasonable or probable grounds of suspicion in making,, the arrest, the duty is not discharged by turning the party over and committing [263]*263him to the custody of a police officer .who has no authority to take an affidavit and issue a warrant. The imprisonment under such an arrest would not be legal, beyond a reasonable time allowed for procuring a warrant.” Code, §§4724, 4725. And this is always a question for the jury, under proper instructions from . the court. 56 Ga., 61. Time is not given to make an investigation of the facts of the transaction, but to procure the warrant. After the warrant is issued and the accused is under arrest, reasonable time would doubtless be allowed, and should be, for the purpose of making the investigation and procuring the evidence in the case by the magistrate before whom the accused is carried for examination. The arrest is allowed only for the purpose of carrying the party before a magistrate. 12 Ga., 318; 56 Ga., 61.
Judgment reversed.