Bardsley

The defendant in error, claiming to have been arrested and unlawfully assaulted by a deputy sheriff of an Idaho county, brought this action for damages against the surety upon the sheriff’s official bond. There was a verdict for $5,500 and from the judgment thereon the defendant brings error. Two assignments have been argued, one involving instructions given and refused upon a certain point, and the other admissions of evidence touching the amount of damages.

Inasmuch as admittedly the evidence was sufficient to take the ease to the jury, an extended statement thereof is unnecessary. Without a warrant, the officer arrested plaintiff while both of them were attending a public dance, upon the theory, presumably, that by being boisterous, profane, and quarrelsome he was committing a breach of the peace. In making the arrest or immediately thereafter he struck the plaintiff upon the head with his revolver, knocking him down and seriously injuring, if not wholly destroying, one of his eyes. Defendant’s contention is that the case was tried upon the theory that the only issue was the reasonableness of the force employed by the officer, and that therefore the court erred, in its…