Opinion bt
It appears from the evidence in this case that a writ of possession was given to one of the defendants, John H. Fuellhart, the sheriff of Warren county, directing him to deliver possession of the premises described in the writ, and then in the possession of the plaintiff, to one Ralph Carrier. Anticipating the issue of the writ, Mulberry, the plaintiff, called upon the sheriff, and said that he would kill any man who came to put him off the place. And when the deputy sheriff attempted to execute the writ, he did resist the officer with so much wilfulness and violence that it was necessary to place him under arrest, and on the evening of the same day he was lodged in the county jail.
For his conduct in thus obstructing the execution of legal process, he was deserving of prompt prosecution, and he should have been taken before a magistrate and an information made against him as soon as the circumstances would permit. The sheriff, however, seemed to doubt the mental soundness of the plaintiff, and was loth to prosecute. Instead of taking the plaintiff before a magistrate the next morning, and making a formal accusation against him, he called in two physicians, and requested them to make an examination as to the mental soundness of the prisoner. This proceeding was for the sheriff’s guidance alone, and seems to have been based upon his considera*577tion for the plaintiff. The physicians made the examination, but owing to the time which they took for consideration were not ready to report until the next morning, and even then were; not clear in their opinion, but expressed themselves as not satisfied that the man was insane.
The appellant had then been confined in the jail two nights and one day, and the sheriff testifies that he then went in and had a conversation with the prisoner, who expressed his regret at the trouble with the deputy, and said that he did not want to be prosecuted, and that he would go home and behave himself if the sheriff would let him out and not prosecute him. He made no request, however, at any time to be taken before a magistrate for a hearing, or to be allowed to furnish bail. Accordingly the sheriff released him, after having been under arrest from Wednesday until Friday morning.
• The plaintiff apparently did not appreciate the leniency of the sheriff in declining to prosecute him, but after waiting eighteen months began this action to recover damages for false imprisonment. The result of the trial was a verdict for the defendants.
In the first assignment of error the plaintiff complains of the refusal of the trial court to instruct the jury that the release of the plaintiff without making a charge against him before a magistrate, made the defendants guilty of a trespass against the person of the plaintiff, for which the jury must award damages. This point as framed was properly declined, for it ignored the evidence that the plaintiff was released without prosecution, at his own request, and with his own consent. The jury were instructed that the sheriff could not detain the plaintiff an un-; reasonable time in confinement, but that it was his duty to give him a hearing as soon as the circumstances of the case would, permit. They were also instructed that if they found from the evidence that the plaintiff was detained for an unreasonable time, or if they found that a hearing might have reasonably been had before a justice of the peace without lodging him in jail, then there might be a recovery of damages.
The verdict must be taken as settling the fact as to both of these points in favor of the defendants. If there was any question of fact whatever in the case for the determination of the jury, the plaintiff cannot fairly complain of the manner of *578its submission. After having been told substantially the same thing in the charge, the jury were definitely instructed by the affirmance of the plaintiff’s second point, that “ It is the duty of an officer, after making an arrest with or without a warrant, to take his prisoner with no unnecessary delay before a committing magistrate for a hearing. If he is guilty of unreasonable delay in so doing, or releases the prisoner after detaining him an unreasonable time, without granting to him the privilege of a hearing, he is guilty of a trespass, even if the original arrest were justifiable.”
But the appellant is not satisfied with this, and now contends-that the failure of the sheriff to prosecute rendered him a trespasser ab initio, and that for this reason the plaintiff was entitled to binding instructions in his favor.
Undoubtedly there are cases where an act in the first instance lawful, becomes afterwards a trespass ab initio. For instance^ where a lawful levy is made, but goods are sold without the notice required by the statute. Or where goods are distrained upon for rent, and sold without having been appraised and advertised in accordance with the act of assembly. But in such cases, as we understand the line of distinction, when the action taken is lawful, it cannot be made illegal ab initio, unless by some positive act incompatible with the exercise of the legál right to do the first act. The propriety of the arrest in this case is not questioned. Neither was the detention malicious nor wilful; it resulted rather from the clemency of the officer. If the sheriff instead of relenting had proceeded to prosecute the plaintiff when the physicians reported that they could not certify to the existence of insanity, there would have been no reasonable ground for complaint. Nor does the conduct of the sheriff in seeking to make sure that he was not pursuing a man of unbalanced mind, call for serious censure. His mistake or his fault then, lay, not in the arrest, nor in the detention for what under the circumstances was not an unreasonable time. It consisted merely in his failure to prosecute. This was at most an omission or a neglect to do, what the plaintiff after the arrest was once made, had perhaps a right to demand of him.
But it has been well said that “ not doing a thing, cannot make a party a trepasser ab initio, because not doing is no trespass.”
*579In Averill v. Smith, 17 Wallace, 91, it is said that: “ Extended argument to show that a mere omission of duty, or neglect to do what another has a right to exact, or any other mere nonfeasance, will not amount to such an abuse of authority as will render the party a trespasser ab initio, is quite unnecessary; as the proposition is not controverted, nor can it be, as it is supported by the highest judicial authority.”
The failure therefore of the sheriff to proceed with the prosecution was not a direct and positive act, such as is required to v. convert a legal into an unlawful action, and thus make him a trespasser ab initio. Particularly is this true in view of the fact, as shown by the evidence, and determined by the verdict of the jury, that the plaintiff consented to his discharge and the termination of the proceedings against him.
The assignments of error are overruled, and the judgment is affirmed.