Bartholomew v. Langsdale. sum, unless there was an express agreement to pay for the same." This instruction ignores the fact that there is such a thing as an implied obligation. A man may by implication create as strong a liability as he can by an express promise. Take the case under consideration as an illustration. There were seven cases pending against Hereth and Langsdale. It was expected that the cases would be appealed to the Supreme Court. Hereth and the plaintiff both swear that Hereth employed the plaintiff in those cases for the sole and express purpose of taking down the evidence so that it could be embodied in bills of exceptions, and agreed to and did pay him one hundred dollars for such services. The plaintiff further testifies that the defendant came to his office, after the cases had been tried in the court below, and wanted him to prepare the cases for the Supreme Court; that he informed the defendant of the nature and extent of his employment in the cases by Hereth, that his employment had terminated, and that he could render no further services in the cases unless he was paid therefor; and thereupon, the defendant had told him to go ahead and do the work. But suppose he made no promise and never agreed to pay him for such services, would it be seriously insisted, under such a state of facts, that defendant would not be liable for such services? And yet there would be no express agreement to pay, but there would be a very strong implied obligation. We do not wish to be understood as saying that the above are the facts in this case; for the plaintiff says that there was an express promise on the part of the defendant to pay him, while the defendant contradicts the plaintiff in nearly every essential particular. But suppose that both the plaintiff and the defendant had sworn that the facts were as above stated, would not the jury have understood from the above instruction that the defendant would not have been liable? that there being no express agreement to pay, he was not liable for services rendered under the facts and circumstances above stated? The State v. Echert. The instruction was well calculated to mislead the jury; and from the evidence in the record, we are forced to the conclusion that it injuriously affected the rights of the plaintiff. We think there should be a new trial in this cause. The judgment is reversed, with costs, and the cause is remanded, with directions to the court below to grant a new trial, and for further proceedings in accordance with this opinion. F. Hanna and F. Knefler, for appellant. B. K. Elliott and C. L. Holstein, for appellee. THE STATE V. ECHERT. APPEAL from the Wayne Criminal Circuit Court. DOWNEY, C. J.-The appellee was indicted for a nuisance, was tried, and acquitted, in the criminal court. The case is brought to this court, we suppose, by the prosecuting attorney, under sec. 119, 2 G. & H. 420. No errors are assigned, and we cannot therefore regard the case as properly here for any purpose. The appeal is dismissed. B. W. Hanna, Attorney General, for the State. W. H. Coombs and W. H. H. Miller, for appellee. Blizzard v. Phebus. Blizzard v. PHEBUS. PRACTICE.—Affidavits.—Bill of Exceptions.—Affidavits filed during the progress of a cause can only be made a part of the record by a bill of exceptions. APPEAL from the White Circuit Court. BUSKIRK, J.-The record in this case presents no question for the decision of this court. The cause originated before a justice of the peace, and was appealed to the circuit court, where it was tried by a jury, resulting in a verdict for the defendant. The plaintiff below, and appellant here, moved the court for a new trial, assigning as a cause that one of the jurors had formed and expressed an opinion as to the merits of the cause, prior to his being called as a juror, which fact was unknown when he was accepted on the said jury. A motion of this kind must be supported by affidavit. The clerk has copied into the record affidavits in support of the motion, and also affidavits on the part of the defendant, to the effect that the juror in question was sworn as to his competency as a juror, and stated that he had both formed and expressed an opinion, and that the plaintiff accepted him as a juror, with full knowledge that he had formed and expressed an opinion as to the merits of the cause; but the affidavits are not made a part of the record by a bill of exceptions. It has been so long and repeatedly decided by this court that affidavits filed during the progress of a cause can only be made a part of the record by a bill of exceptions, that it is hardly worth while to refer to such decisions, but we will refer to a few of the later decisions. Round v. The State, 14 Ind. 493; Leyner v. The State, 8 Ind. 490; Taylor v. Fletcher, 15 Ind. 80; Cochran v. Dodd, 16 Ind. 476; Murphy v. Tilly, 11 Ind. 511; Wilson v. Truelock, 19 Ind. 389; Merritt v. Cobb, 17 Ind. 314; Hasselback v. Sinton, 17 Ind. 545; Horton v. Wilson, 25 Ind. 316; Whiteside v. Adams, 26 Ind. 250; Bell Colter v. Lower and Others. v. Rinker, 29 Ind. 267; Fisher v. Ewing, 30 Ind. 130; Potter v. Stiles, 32 Ind. 318. The judgment is affirmed, with costs. W. H. Blizzard, for appellant. E. Hughes, for appellee. COLTER V. LOWER and Others. FALSE IMPRISONMENT.-Pleading.—An action for false imprisonment can be maintained without alleging in the complaint that the imprisonment was malicious and without probable cause. SAME.-Distinguished from Malicious Prosecution.-If an imprisonment is under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious prosecution. If it has been extra-judicial, without legal process, it is false imprisonment. APPEAL from the Warren Circuit Court. DOWNEY, C. J.-Colter sued the appellees, alleging in his complaint that the defendants, on the 16th day of November, 1867, falsely, wrongfully, and unlawfully seized and arrested the plaintiff in the said county of Warren, and took and confined him in unlawful imprisonment at the town of West Lebanon, in said county, for the space of twelve hours, and continued said arrest and false imprisonment by taking said plaintiff into the county of Tippecanoe, in the State of Indiana, and there unlawfully and falsely imprisoned him in the county jail of that county for twelve days, when he was discharged, no cause for said arrest and imprisonment nor charge of any kind having been at any time preferred against him in any court; that by reason of said false imprisonment he was not only deprived of his liberty, but was compelled to and did undergo great mental suffering, anguish, and humiliation and bodily pain and suffering, and was prevented from attending to his daily affairs for a long space of time, to wit, one month, and was compelled to expend dollars 35 285 159 288 Colter v. Lower and Others. for costs and counsel fees in and about his said false imprisonment, by means of which he has been damaged five thous and dollars; wherefore, &c. There was a demurrer to this complaint, for the reason that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled, and the complaint held to be sufficient. Robert Anderson, one of the defendants, filed his separate answer, consisting of seven paragraphs. The plaintiff demurred to the second, third, fourth, fifth, sixth and seventh paragraphs thereof, and the court, another judge presiding, on this demurrer adjudged the complaint insufficient. The other defendants then again demurred to the complaint, and their demurrer was sustained; the plaintiff excepted, and final judgment was rendered in favor of the defendants. The only question for our decision is as to the sufficiency of the complaint, for the court did not pass on the sufficiency of the answer, and therefore that question is not before us as a court of error. It is insisted by the appellees that the complaint is bad for the reason that it does not allege that the imprisonment was malicious and without probable cause. It must be conceded that if the approved precedents in the best works on pleading are to be received as evidence of what the law is on this subject, the allegation in question is essential. 2 Chit. on Plead. 857, et seq. That the allegation is essential in an action for malicious prosecution, is well understood, and is recognized as the rule by this court; Wilkinson v. Arnold, 11 Ind. 45; Ammerman v. Crosby, 26 Ind. 451; Stancliff v. Palmeter, 18 Ind. 321. But we do not think it essential in an action for false imprisonment, such as the one in question. There is a marked distinction between malicious prosecution and false imprisonment. At common law, the former was the subject of an action of trespass on the case, while, for the latter, trespass vi et armis was the remedy. 1 Chit. Plead. 133, 167. If the imprisonment is under legal process, but the action has been commenced and carried on maliciously |