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3. The warrant upon which plaintiff was arrested showed upon its face that it was issued to apprehend the accused for an offence over which the justice had no jurisdiction, and the officer was bound to know its invalidity. It affords no protection to him in making the arrest. Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101. The plaintiff was entitled to judgment upon the verdict for the amount of the damages found, with costs.

By the COURT.-The judgment of the Superior Court of Milwaukee is reversed, and the cause remanded with directions to award judgment in favor of the plaintiff in accordance with this opinion.1

1 [PROBLEMS:

A statute gave to the defendant magistrate jurisdiction of the offence of possessing in "any boat" on the Thames goods stolen from any "ship or vessel in the said river." The plaintiff and his "boat" were attached and convicted by the defendant magistrate for an offence under this statute. In a suit for trespass, the plaintiff proposed to show that his vessel was not a "boat" under the statute, being a decked vessel of thirteen tons burthen. Is this allowable? (1819, Brittain v. Kinnaird, 1 B. & B. 452.)

Action against a justice of the peace for false imprisonment. A statute gave the defendant jurisdiction of the offence of carrying off any "corn, wheat, rye, barley, oats, or grain of any kind, . . . or any trees, herbage, growing grass, hay, or other vegetables,” etc. On complaint against the defendant for carrying off "400 bundles of corn-stalks," the defendant issued a warrant, and committed the plaintiff to jail; he was afterwards discharged. Is the defendant liable? (1882, Grove v. Van Duyn, 44 N. J. L. 654.)

The plaintiff was arrested and charged with a misdemeanor on a warrant issued by the defendant justice of the peace. The plaintiff pleaded not guilty, offered bail, and claimed to be set free on binding over for appearance before the grand jury. The defendant refused, tried the plaintiff, found him guilty, and sentenced him. The conviction was reversed on appeal. The defendant had unquestioned jurisdiction to issue warrants and bind over to the grand jury on bail for such offences, but not to try and convict after offer of bail. But this latter point had not been declared law until a ruling by the Court of Appeals after the plaintiff's trial. Is the defendant liable? (1891, Austin v. Vrooman, 128 N. Y. 229.)

The declaration alleged that the defendant justice of the peace maliciously issued a warrant against the plaintiff for trespass, and maliciously refused the plaintiff a fair opportunity to obtain witnesses or counsel, and maliciously fined him two dollars and imprisoned him till payment. Is this demurrable? (1848, Pratt v. Gardner, 2 Cush. 63.)

The law required at least ten days' interval between the issuance of a summons for certain misdemeanors and the time for the defendant's appearance to answer the charge. The defendant justice issued on Sept. 20 a summons to the plaintiff to appear on Sept. 30, and on his failure to appear held the trial, found him guilty, and fined him. Is the defendant liable? (1840, Mitchell v. Foster, 12 A. & E. 472.)

The defendant, a justice of the peace, made a certificate that the married woman, grantor in a deed, had been duly examined before him and had stated that she acted freely without compulsion from her husband, such examination being by law required for a married woman's deed. The certificate was false, and the deed was therefore void. The plaintiff, being injured thereby, sues the justice. Is he liable? (1898, McLendon v. Mortgage Co., 119 Ala. 518, 24 So. 721.)

SUB-TOPIC C. ERROR IN ISSUING UNLAWFUL PROCESS PRELIMINARY TO JURISDICTION

[The cases are set forth under Topic 2, Sub-topic A, Section 1 (c), post, Nos. 1045-1059.]

Topic 2. Sheriffs, Police, and Other Ministerial Officers of Justice

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1024. SIR MICHAEL FOSTER. Report of Crown Cases, and Discourses upon Crown Law. (1762. 2d ed., p. 308, c. VIII, § 1.) . Ministers of justice, while in the execution of their offices, are under the peculiar protection of the law. This special protection is founded in great wisdom and equity, and in every principle of political justice. For without it the publick tranquillity cannot possibly be maintained, or private property secured; nor in the ordinary course of things will offenders of any kind be amenable to justice. . . . Nor is this special protection of the law confined to cases of a mere criminal nature, where the publick peace is broken or endangered. The ministers of justice in civil suits, under proper limitations which shall be considered, are intitled to the same protection for themselves and followers, and upon the same principles of political justice.

1025. HENRY SIDGWICK. The Elements of Politics. (1891. p. 463.) . . . We may note the need of rules reducing within the narrowest possible limits the power of the executive to imprison private citizens before trial. The most important provisions under this head are that no one shall be arrested except on a definite charge of having committed a certain offence; that the person arrested shall be brought as soon as possible before a judicial functionary who shall decide whether the charge is made on grounds prima facie reasonable, and whether the offence charged is sufficiently grave to render it needful to keep the accused in confinement until the trial; that if the charge is of this grave kind the accused shall be brought to trial as soon as possible, and that if it is of a lighter kind, he shall be set at liberty on bail.

SUB-TOPIC A. ARREST OR ATTACHMENT UNDER A JUDICIAL

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WARRANT

1026. SIR JAMES STEPHEN. History of the Criminal Law of England. (1883. Vol. I, c. VII, p. 192.) Between the fourteenth and seventeenth centuries, summonses and warrants superseded the old hue and cry, which practically fell into disuse. The history of this substitution is curious. Justices of

ESSAYS:

Ardemus Stewart, "The Irresponsibility of the Judiciary." (A. L. R., XXXIV, 383.)

Van Vechten Veeder, "Absolute Immunity in Defamation: Judicial Proceedings." (C. L. R., IX, 463, 600.)

NOTES:

"False imprisonment: unconstitutional ordinances: immunity of judges and officers." (C. L. R., VI, 586, 598.)

"Public officer's liability: judicial act." (C. L. R., VII, 435.)]

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the peace were first instituted in 1326. Their duties were described in the most general terms. They were by 1 Edw. III, c. 16, "assigned to keep the peace." By 34 Edw. III, c. 1 (1360), they were empowered "to take and arrest all those they may find by indictment or suspicion and put them in prison.” . . . The statutes above quoted give them no other authority for the apprehension of offenders than was by the common law inherent in every constable and indeed in every private person. By degrees, however, the practice of issuing warrants came into use. The general authority of the justices in all matters relating to crime and indeed to the whole, internal government of the country was firmly established by a great variety of statutes, and it would be natural that their directions should be taken when a crime was committed. It would also be more natural for the justice to authorize the constable to undertake the actual arrest of the offenders than to do it himself, and it might often be convenient, if a suspected person was to be searched for in more directions than one, to give written authority to various persons for the purpose. This would be specially convenient in the case of a hue and cry. If offenders were to be followed from township to township, the different constables of each being required to join, a written authority from a known public officer like a justice of the peace would be a great convenience. The phrase "grant a hue and cry" was apparently in common use in the seventeenth century for granting a warrant. But the granting of warrants was afterwards recognized by various statutes, and was finally set upon an indisputable statutory foundation in 1848 by 11 & 12 Vict. c. 42, ss. 1, 2, 8, etc. The effect of these provisions is that, where a complaint is made to any justice that any person has committed any indictable offence, the justice may issue a summons to such person, or, if he thinks it necessary, and if the charge is made on oath and in writing, a warrant for his apprehension.

The power of the justices to issue such process was however disputed for centuries. In Hawkins' Pleas of the Crown, many authorities upon the subject are referred to, and a very qualified and hesitating conclusion is reached, that "perhaps it is the better opinion at this day that any constable or private person to whom a warrant shall be directed from a justice of the peace to arrest a particular person for felony or any other misdemeanor within his jurisdiction may lawfully execute it, whether the person mentioned in it be in truth guilty or innocent, and whether he were indicted of the same offence or not, and whether in truth any felony were committed or not." This hesitation is explained by the difference of opinion between Coke and Hale upon the subject. Coke maintained that, before the statutes of Philip and Mary authorizing justices to examine witnesses when a person was arrested for felony, "a justice of the peace could not make a warrant to take a man for felony unless he be indicted thereof." . . . Hale, referring to this passage, says that Coke "hath delivered certain tenets which, if they should hold to be law, would much abridge the power of justices of the peace, and give a loose to felons to escape unpunished in most cases." He then proceeds to refer to the statutes of Edward III, and argues in substance that as at common law a private person might and a constable ought to arrest supposed felons upon suspicion without warrant, the justice might do so a fortiori, in virtue of the general terms of the statutes; and that he might also "issue a warrant, to apprehend a person suspected of felony though the original suspicion be not in himself, but in the party that prays his warrant, and the reason is because he is a competent judge of the probabilities offered to him of such suspicion." . . . However this may be, the whole subject is now set on a perfectly plain foundation by the statutes already referred to.

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1027. REGISTRUM BREVIUM. (1595. Judiciale, fol. 2.) Writ of Capias. Rex vicecomite salutem. Praecipimus tibi quod exigi facias R. de comitatu in comitatum, quousque secundum legem et consuetudinem regni nostri Angliae utlagetur, si non comparuerit. Et si comparuerit, tunc eum capias et salvo custodiri facias, ita quod corpus eius habeas coram justitiariis nostris apud Westmonasterium in octavis sancti Hillarii ad respondendum I. de placito etc., et unde tu ipse mandati justitiariis nostris apud Westmonasterium in octavis sancti Michaelis, quod praedictus R. non est inventus nec aliquid habet in balliva tua per quod potest attachiari. Et habeas etc.

1028. ANON. The Attorney's Practice in the King's Bench. (1750. 3d ed., vol. II, p. 439.) . Warrant of Arrest for Debt. And hereupon the said P. comes before our lord the king at Westminster in his proper person, and prays the King's writ of capias ad satisfaciendum against the said D. to satisfy the said P. for the debt and damages aforesaid, to be directed to the sheriff of the said county of -; and it is granted unto him; whereby the sheriff of the said county is commanded, that he take the said D, if he is to be found in the bailiwic, and that he keep him safely, so that he have his body before the lord our king at Westminster on to satisfy the said P. for his debt and

damages aforesaid.

next after

1029. THOMAS FIDELL. A Perfect Guide for a Studious Young Lawyer, both delightfull and profitable for any Gentleman. (1654. p. 259.) ... Warrant of Arrest for Misdemeanor. For as much as T. H. Gentleman hath made complaint unto me, that I. H. and G. B. have done and committed divers misdemeanours in cutting down, taking, and carrying away the corn of the said T. H. and a set net with fish in it, all which misdemeanours were done in the night time, And for as much also as I am informed, that the said parties do keep Conydogs, Heyes, and Nets, whereby they take and kill conies, contrary to the law and statutes of this realm; and that they unlawfully shoot and kill doves with guns. These are therefore to will and require you, and in the name of the keepers, &c. straightly to charge and command you, that forthwith upon sight hereof you apprehend the said I. H. and G. B. &c. and bring them before me to my house at H. on Thursday next, being the 29. of September, by eight of the clock of the forenoon of the same day, to answer the premisses and such other matters as then and there on the behalf of the said keepers shall be objected against them; And further, to find sureties for their appearance at the next general quarter Sessions to be holden for the said county, there to be proceeded against according to law and justice; and hereof faile you not, as you and every of you will answer the contrary at your uttermost perills. Given under my hand and seal &c.

1030. JOSEPH STORY. A Selection of Pleadings in Civil Actions. (1829. 2d ed., p. 574.) . . . Plea of Justification for Arrest under a Warrant. As to the force and arms, beating, and bruising, and evil-treating, not guilty. And to the residue of the said trespass, assault, and imprisonment above supposed to be done, the said D. says, (actio non,) because he says, that before the time when the said trespass, assault, and imprisonment is above supposed to be done, to wit, on &c., at &c., B. C. Esq., one of the justices of the peace within and for said county, made his certain warrant under his hand and seal, bearing date, &c., and the tenor of which is as follows, to wit, (here insert the warrant,) which

warrant was then and there delivered to one E. D., then deputy-sheriff of said county, under G. H. Esq., sheriff of the same county, by virtue of which the said E. D., by his command, afterwards, to wit, on &c., at &c., gently laid his hands on and attached and apprehended the plaintiff, to bring and convene him before the said justice, and did accordingly then and there, with the consent of the said plaintiff, convene him before the said justice, and the plaintiff was then and there detained before the said justice and in the custody of the said E. D. and D. his assistant, by virtue of the said warrant, while the plaintiff was examined before the said justice touching the complaint mentioned in the said warrant, and until the plaintiff was discharged from the custody of the said E. D. and D. by order of the same justice, to wit, for the space of five hours, as complained of in the plaintiff's declaration, as it was lawful to do for the cause aforesaid, which is the residue of the said trespass, assault, and imprisonment, whereof the plaintiff complains against the said D.; and this the said D. is ready to verify: Wherefore, &c.

1031. THOMAS FIDELL. A Perfect Guide for a Studious Young Lawyer, both delightfull and profitable for any Gentleman. (1654. p. 268.) Mittimus. I send you herewith the body of G. B., servant to T. R. of Martins in the Fields, for purloyning certain goods from his master; These are therefore in the name of the keepers &c. straightly to charge and command you, him the aforesaid I. B. to take into custody, and give him due correction according to the rules of your House, and there to keep him at labour untill he shall be delivered by due course of Law: hereof faile not; And this shall be your warrant under my hand and seale the 1. of Feb. &c.

1032. JOSEPH STORY. A Selection of Pleadings in Civil Actions. (1829. 2d ed., p. 582.) . . . Plea of Justification for Imprisonment under a Mittimus. . And for further plea, as to the said assaulting &c., he the said D., by leave &c., according to &c., says (actio non) because he says, that before the said time when &c., to wit, at a court &c., the plaintiff was in due form of law committed by the said court, so then and there holden as aforesaid, to the said house of correction at &c., to be there imprisoned for one year then next following, and then discharged; and the said plaintiff was thereupon then and there delivered into the custody of the said D., then and from that time hitherto being keeper of the said house of correction, and was then and there carried and conveyed by the said D., to the said house of correction, under and by virtue of the said commitment, and was then and there kept and detained in such custody, under and by virtue of the said commitment, from thence until, and at, and after the said time when &c., his said imprisonment under the said commitment not being then expired, as he lawfully might for the cause aforesaid, which are the same trespass in the introductory part of this plea mentioned, and whereof the said plaintiff hath above thereof complained against him; and this &c.: Wherefore &c., if &c.

1033. REGISTRUM BREVIUM. (1595. fol. 298b.) Writ of Levari facias. Rex vicecomiti S. salutem. Quia I., filius C., solvisse debuit M. de B. 29 lib., videlicet, in festo sancti Michaelis, anno regni domini Edwardi nuper regis Angliae avi nostri decimo, centum solidos, et in feste Paschae tunc proxime sequenti octo libras, sicut constat nobis per inspectionem rotulis Cancellariae dicti

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