Gainey v. Parkman

Chapman, C. J. 1. The provision of the Gen. Sts. c. 86, § 40, which requires that an officer, who has without a warrant arrested a person who is found in a state of intoxication in a public place, or in any other place, committing a breach of the peace or disturbing others by noise, shall take him before a magistrate and make a complaint against him, is substantially and sufficiently complied with by procuring another person to make the complaint and being present to testify at the trial of the complaint. 2. The plaintiff claimed the right to recover on two distinct grounds. The first was, that the arrest and the whole of the imprisonment was illegal on the part of both the defendants. The second was, that, admitting the arrest and imprisonment to be legal, yet the defendant Parkman, while the plaintiff was in custody, committed an assault and battery upon him for which he was separately liable. As the declaration contained but one count, it was proper for the presiding judge to require the plaintiff to elect which of these two separate torts he intended to rely upon, for he could no1' under one count prove these separate causes of action. Exceptions overruled„