judgment of a competent Court, he is protected." 1 Addison, Torts, 151.... Error, as thus applied, consists in non-conformity to the rules of procedure in an action which the Court is authorized to hear, but not affecting any jurisdictional fact which can be taken advantage of only by appeal or motion in the original action. It will be found, on examination of well-considered cases, that where the Courts have, in a case akin to this, held that no action for damages for arrest and false imprisonment will lie, it was predicated of the fact that the arrest was made under legal process issued by some Court or officer of the law invested with judicial power in the first instance to pass upon and decide whether or not the jurisdictional facts are presented in the application to warrant the issuance of the writ. . . . Miller v. Munson, 34 Wis. 579; Murdock v. Killips, 65 Wis. 622, 28 N. W. 66; Loder v. Phelps, 13 Wend. 46; Bowman v. Russ, 6 Cow. 234; Hauss v. Kohlar, 25 Kan. 644. . ... ... Applying these established rules of law to the case under review, how can the conduct of the defendant in pursuing the plaintiff as he did be justified in law? An examination of the Constitution and statutes of Kansas satisfies us that the clerk of the District Court who issued the warrant of arrest was not clothed with any judicial power. His functions in this matter were simply ministerial. . . . Bryan v. Congdon, 54 Kan. 109, 37 Pac. 1009. Mr. Justice BREWER said: "The clerk performs no other function than that of approving and filing the bond, filing the affidavit, and issuing the order of arrest. The control of proceedings, so far as discretion is concerned, is with the judge." Therefore, the issuance of the writ by the clerk of the District Court is merely a perfunctory act on his part, and he is neither required nor expected to bring to bear upon it the eye of judicial investigation. . . . The conduct of the defendant in pursuing the plaintiff, as disclosed by the petition, is entitled to little sympathy, as he manifested the spirit of revenge, if not of persecution. As if himself aware that the first writ of arrest was insufficient to justify the imprisonment of the plaintiff, he swore out another warrant, charging him with embezzlement of the same property for which he had obtained judgment, and had him brought from jail to answer thereto. And, when he had placed upon plaintiff the burden of furnishing a bond to prevent his recommitment to jail, he pursued him further by inducing the sheriff, without any new process of law, to go upon the plaintiff, and again subject him to the ignominy of incarceration in jail, and compelled him to incur the trouble and expense of applying to the Supreme Court of the State for protection by the writ of habeas corpus. Since the concession of Magna Charta it has been one of the canons of personal privilege of the citizen that the sovereign himself shall neither "go upon nor send upon" him without due process of law. Certainly this vital principle has lost none of its virtue in the progress of Anglo-Saxon civilization. The judgment of the Circuit Court is reversed, and the cause is remanded for further proceedings in conformity with this opinion. 994. FELD v. LOFTIS SUPREME COURT OF ILLINOIS. 1909 240 IU. 105, 88 N. E. 281 WRIT of error to the Appellate Court for the First District; heard in that Court on writ of error to the Circuit Court of Cook County; the Hon. JOHN GIBBONS, Judge, presiding. This writ of error was prosecuted to reverse a judgment of the Appellate Court reversing a judgment of the Circuit Court of Cook County for $1,500, recovered by the plaintiff in error against defendants in error for false imprisonment. The declaration consisted of three counts, each alleging that the defendants caused the plaintiff to be seized and imprisoned for twenty-four hours against her will and contrary to law. The last two counts averred the imprisonment to have been in the county jail of Cook County, and alleged special grounds of damage. The transcript shows an action of replevin begun against Mrs. Joseph J. Feld by the filing of an affidavit of the plaintiffs, the issue of the writ, the return of personal service on the defendant, the goods mentioned in the writ not being found, a continuance of the case, appearance by plaintiffs only, issue of venire at plaintiff's request, trial by jury, verdict and judgment against defendant for $27.50 for the wrongful and fraudulent conversion of the goods of the plaintiffs. Thereupon an execution issued against the body of the defendant, who was taken and delivered to the keeper of the Cook County jail and was afterward discharged on habeas corpus. . . Besides the general issue the defendants in the present suit filed pleas justifying the imprisonment under an execution against the body, issued upon a judgment which the defendants had recovered against the plaintiff before a justice of the peace. Two replications were filed, one being nul tiel record, but concluding to the country; the other what is called a replication de injuria, but concluding with a verification. The latter set up proceedings in habeas corpus, resulting in the discharge of the plaintiff from the imprisonment complained of. . . . James R. Ward, for plaintiff in error. Mayer, Meyer & Austrian, for defendants in error. Mr. Justice DUNN delivered the opinion of the Court [after stating the facts as above]: The Appellate Court did not remand the cause, and recited in its judgment the following finding of facts, viz.: "That the plaintiffs in error were not guilty, either as principals, participants, or assistants, in the arrest and imprisonment of the defendant in error. Their only connection with the same was as plaintiffs in a suit before a justice of the peace, in which an execution against the body of the defendant in error was issued to and served by a constable of the county of Cook. The process thus issuing furnished a justification of the arrest and imprisonment." The ultimate fact in this finding is that the defendants had no connection with the arrest and imprisonment of the plaintiff except as plaintiffs in the action before the justice of the peace in which the execution against the body issued. As such plaintiffs, they had the right to enforce the judgment by legal process, and the finding that they did no more than that is such a finding as exonerates them from liability in this case. Imprisonment under legal process of a court having jurisdiction of the subject-matter cannot be made the basis of an action for false imprisonment. When a justice of the peace is applied to for a writ, where he has general jurisdiction of the subject-matter, he has the authority to act officially and decide upon the sufficiency of the affidavit. If he errs in his judgment as to its sufficiency and issues a writ which was not authorized in the particular case, the plaintiff is not responsible for the error. Process, under such circumstances, constitutes full justification, not only of the officer who serves the process, but of the magistrate who issues it and of the party or complainant at whose suit it is issued. (Bassett v. Bratton, 86 Ill. 152; Outlaw v. Davis, 27 Id. 467; Von Kettler v. Johnson, 57 Id. 109; Booth v. Rees, 26 Id. 45; Barker v. Stetson, 7 Gray, 53; Langford v. Boston & Maine Railroad Company, 144 Mass. 431; Gifford v. Wiggins, 50 Minn. 401; Murphy v. Walters, 34 Mich. 180; Rush v. Buckley, 100 Me. 322.) The declaration in this case counts only upon an arrest and imprisonment without authority of law. To such a complaint the judgment and process of the Court is a complete answer. If the suing out of the process was malicious and without right the defendants would be answerable for such action. But that is not the case made by the declaration. . . . The justice had jurisdiction of the subject-matter of the replevin of goods. An application was made to him for a writ of replevin and an affidavit presented. He had jurisdiction to issue the writ upon proper affidavit, and, when the affidavit was presented to him, he had authority to act officially thereon and to judge of its sufficiency. Whether his judgment was right or wrong, the plaintiffs had a right to rely upon it. . . . Since the affidavit itself is not shown, the transcript is insufficient to show that the justice. acquired jurisdiction in the case or was authorized to issue the writ. It does show, however, that some sort of affidavit was filed which the justice adjudged to be sufficient to authorize the issuance of the writ. In such cases the suitor is not responsible for the correctness of the justice's judgment. Outlaw v. Davis, supra. ... If it be granted that the plaintiff in error was discharged from cus tody because the justice of the peace erroneously held that the affidavit was sufficient to authorize the issuing of a writ of replevin and therefore was without jurisdiction to issue the writ, and his judgment and the execution issued thereon were void, yet all this does not reach the issue in this case. It merely goes to the extent that the justice in the particular case exceeded his jurisdiction. But we have already held that mere excess of jurisdiction, where the magistrate has general jurisdiction of the subject-matter, will not make either magistrate or party liable. Having applied in good faith to a magistrate having jurisdiction of the subject-matter and filed an affidavit which the magistrate adjudged to be sufficient to justify the issuing of the writ, plaintiffs are not liable for the subsequent arrest, even though the magistrate erred in his judgment as to his authority to issue the writ, and on account of such error the defendant was entitled to be discharged from arrest upon habeas corpus proceedings. The judgment of the Appellate Court will be affirmed. Judgment affirmed.1 1 [PROBLEMS: Trespass for an assault and false imprisonment. The defendant pleaded that an evil-disposed person, to the defendant unknown, had obtained goods from him on false pretences; that the plaintiff was pointed out to him by the defendant's servant as the person who had so obtained the goods, whereupon the defendant, having probable cause of suspicion, and believing that the plaintiff was the person who had committed the offence, gave charge of him to a peaceofficer, to take and keep him in custody till he should be carried before a justice. Was this plea good? (1832, Fox v. Gaunt, 3 B. & Ad. 798.) The declaration alleged that the defendant had made a charge of assault and battery against the plaintiff, falsely, maliciously, and without probable cause, whereby the magistrate was induced to convict the plaintiff thereof, and there was by law no appeal from the magistrate's conviction. On demurrer, was this declaration good? (1867, Basebé v. Matthews, L. R. 2 C. P. 684.) The defendant caused the plaintiff to be indicted for perjury. The defendant acted on information from M.; but M. told him there was not sufficient ground for an indictment; whereon the defendant replied that even if there was not, the indictment would tie up the plaintiff's mouth for a time. The jury found that the defendant did not in fact believe there was probable cause. Is he liable, regardless of whether there was probable cause? (1848, Haddrick v. Heslop, 12 Q. B. 267.) The defendant in a suit for malicious prosecution had submitted affidavits as to the plaintiff's misconduct to a bail commissioner, who had passed on them and ordered the plaintiff's arrest. Was this per se probable cause? (1895, Truax v. R. Co., 58 N. J. L. 218, 33 Atl. 278.) The defendant, in the name of T. B., caused a suit with attachment to be begun against the plaintiff, which suit was afterwards nonsuited, T. B. not having in fact given the defendant any authority to act for him. Is the defendant liable, regardless of probable cause to believe that the plaintiff owed T. B., or that T. B. had given such authority? (1844, Bond v. Chapin, 8 Metc. 31.) The defendant caused a bill of indictment of the plaintiff for assault to be presented to the grand jury, but the grand jury returned it "Not found." Is the defendant liable for malicious prosecution? (1813, Byne v. Moore, 5 Taunt. 187.) The defendant, having an execution against the plaintiff, caused him to be arrested under it; part of the judgment had been paid, but the defendant THIS was an action of slander. The words were, "She is a thief, and tried to rob me of part of her wages." The defendant pleaded: maliciously and without probable cause indorsed a direction to buy for the whole amount; the plaintiff was afterwards released on paying the amount actually due. Is the defendant liable? (1857, Jenings v. Florence, 2 C. B. N. S. 467.) The plaintiff owed money to the defendant. The defendant made affidavit that the plaintiff had absconded in fraud of creditors, and obtained a writ of attachment and seized the plaintiff's goods. In fact, the plaintiff had not absconded, and the defendant knew this. Is the defendant liable? (1839, Tomlinson v. Warner, 9 Ch. 104.) The plaintiff and the defendant were partners, and the plaintiff refused to withdraw from the firm at the defendant's request. The defendant, to force him to do so, procured creditors of the firm to attach its goods for debts owing and to proceed to cause them to be sold, and to avoid a sacrifice sale, the plaintiff then withdrew from the firm, by reason of which he lost expected profits. Is the defendant liable? (1876, O'Callaghan v. Cronan, 121 Mass. 114.) The plaintiff owned a vessel, mortgaged to the defendant; the defendant, in order to obtain the ship's register, without which the plaintiff could not go to sea, arrested the plaintiff by a capias for the debt, and the plaintiff, being unable to pay, was obliged to surrender the register to obtain his freedom, having in the meantime lost four voyages. Was this actionable? (1838, Grainger v. Hill, 4 Bing. N. C. 212.) C. died; A, his sister, was appointed administrator. Wages of $21 being owed to C., A. gave a power of attorney to the defendant to collect the money, which he did, and paid it over to A. Afterwards, C.'s will was found and probated, and the plaintiff was executor under it. Is the defendant responsible to the plaintiff? (1706, Pond v. Underwood, 2 Ld. Raym. 1210.) NOTES: "Abuse of process: sufficiency of complaint." (C. L. R., IV, 77.) "Malicious prosecution: probable cause: prior conviction." (C. L. R., VI, 469.) "Malicious prosecution - discharge upon examination after arrest." (C. L. R., XI, 184.) 'Wrongful attachment Want of malice." (C. L. R., XI, 294.) "Termination before verdict in criminal action." (H. L. R., XIV, 223.) "Probable cause: court or jury: which determines the issue." (H. L. R., XIII, 60; XIV, 234.) "Discharge by mayor from arrest." (H. L. R., XVII, 496.) "Probable cause: continuing prosecution after knowledge of innocence." (H. L. R., XX, 500.) "Malicious prosecution what termination necessary to support action." (M. L. R., IV, 313.) "Malicious prosecution want of probable cause.' (M. L. R., IV, 660.)] |