(b) a general warrant of arrest, i. e., not naming or otherwise describing the specific person ordered to be arrested; 1 (c) a general warrant of search for goods to be attached, i. e., not describing the specific goods and the criminal charge with which they are connected; or otherwise prescribing an unreasonable search and seizure.2 (d) a detention, with or without warrant, for an unreasonable time, without giving an opportunity for a judicial hearing.3 § 332. Action under a Valid Warrant. Where the order (warrant, writ) is a valid one, the officer's excuse, under the general rule of § 327, ante, is complete, in so far only as he obeys precisely the express terms of the order, and the appurtenant implied powers. He is therefore not excused in the following cases: § 333. Same: (a) Mistake as to Person or Property. He is not excused if he arrests a person or attaches property other than that named or otherwise described in the order, even though [(1) the description in the order was meant by the judge or the complainant to be executed as the officer did it; or] (2) the officer's belief as to the application of the description was honest and reasonable.1 § 334. Same: Goods in Dispute as to Title. Where an attachment is levied upon goods described as those of a party to the suit and found in his possession, and a third person claims and shows title by a transfer from the party made prior to the levy, the writ does not protect the officer, except as follows: (1) Where the transfer was a mortgage on which the mortgagee has not yet a right to possession because of default, the writ protects the officer in seizing and selling the mortgagor's interest.5 (2) Where the transfer was one voidable by a creditor for fraud or otherwise, the officer's writ does not of itself furnish an excuse; but it does if he further shows that the writ issued on behalf of such a creditor, i. e., by proving the debt owed by the attached party to the plaintiff." and the transfer is voidable, so that This is because, if there is a debt, if avoided the title would revest in the debtor, the writ's direction, to attach goods of the debtor, is now colorably fulfilled, and the officer is not concerned with the merits of the issue whether the creditor is entitled on the facts to avoid the transfer. If there is no debt, the goods cannot possibly, in that suit, be deemed the goods of the debtor. 1 Leach v. Money, No. 1052; Com. v. Crotty, No. 1056; Tidball v. Williams, No. 1057. Entick v. Carrington, No. 1058; Newberry v. Carpenter. 3 Cases cited post, §§ 342-4. 4 McMahan v. Green, No. 1063 (person); Blocker v. Clark, No. 1064 (person); Com. v. Kennard, No. 1066 (property); Pike v. Colvin, 1068 (property). Buck v. Colbath, No. 1067, merely shows how the rule of obedience may apply differently under different forms of warrants. 5 Pike v. Colvin, No. 1068. 6 Mills v. Phelps, No. 1069. 7 Semayne's Case, No. 1070. 8 Kelley v. Schuyler, No. 1072. (2) He has power to break inner doors in both civil and criminal cases.1 § 337. Same: Possession of Warrant. The officer's power is [not] dependent on his possession of the warrant at the time of service of it.2 § 338. Same: Trespass Ab Initio. An officer who exceeds his power under a warrant loses its excuse, not only for the act done in excess, but for all acts done under the warrant.3 A ministerial SUB-TOPIC B. ARREST WITHOUT A WARRANT § 339. Felony. A ministerial officer of justice is excused for an arrest made without a warrant on a charge of felony, in the following cases only: (1) If the felony is being attempted or has been in fact committed by the plaintiff; or, (2) If the felony has in fact been committed by some one, and the plaintiff is reasonably suspected by the officer to be the doer of it; or, [(3) If the felony is reasonably suspected by the officer to have been committed by some one, and the plaintiff is reasonably suspected by the officer to be the doer of it.]* Par. (3) is recognized by the orthodox common-law rule; but not in some American States, a statute having often bungled the rule. Par. (2) is the orthodox common-law rule for private persons also (ante, §8, 306); and thus Par. (3) represented the special privilege for officers. (1) If the misdemeanor is in fact committed by the plaintiff, and the officer is present at the act or its impending renewal; and (2) If the arrest is made (a) immediately, or (b) in fresh pursuit.5 [§ 341. Anomalous Rule. An officer is excused for an arrest made without a warrant on a charge of any criminal offence, if (1) The offence has been in fact committed, and (2) The plaintiff is reasonably suspected by the officer to be the doer.] 6 This rule, obtaining by statute in some States, is narrower, for felonies, than the orthodox common-law rule, but is broader for misdemeanors. It is a substitute for §§ 339, 340. SUB-TOPIC C. DETENTION, AFTER ARREST, WITHOUT INSTITUTING JUDICIAL PROCEEDINGS arrest must be followed, as soon as feasible, by a judicial hearing initiating the investigation, and by some judicial order made thereon. Hence, § 342. General Principle. Since the power of punishment is in the judicial department only, and since arrest is in no way authorized except as a necessary preliminary means of securing the presence of a person for the purpose of vindicating him or of punishing him according as, upon investigation, he is found to be innocent or guilty, every able time without giving a judicial 1 Kelley v. Schuyler, No. 1072. 2 Cabell v. Arnold, No. 1073. § 343. Judicial Officer. When a judicial officer causes the detention of an arrested person for an unreason 3 Wood v. Graves, No. 984; Brock v. Stimson, No. 1095. 4 Samuel v. Payne, No. 1076; East, No. 1077; Stephen, No. 1079; Train, No. 1081; Burns v. Eden, No. 966; Com. v. Carey, No. 1082. Note the discrepancy between No. 1081 and No. 966. 5 Stephen, No. 1079; Coupey v. Henlay, No. 1078; Com. v. Carey, No. 1082; Snead v. Bonnoil, No. 1083. Statutes, No. 1084; Enright v. Gibson, No. 968. hearing and making à judicial order | tunity for judicial hearing, or conthereon, his excuse ceases.1 tinues the detention for a longer time than is reasonably necessary for bring§ 344. Ministerial Officer. When a ing the arrested person before a judicial ministerial officer, after an arrest, officer for a hearing, his power and his made with or without a warrant, dis- excuse cease; except some further charges the person without an oppor- | judicial order be made at such hearing. a trial; § 346. Perjury Causing an Unjust speaking as a witness in any stage of Verdict. A witness is excused for harm resulting to a party from an unjust verdict rendered in consequence of the witness' perjury in testimony given to the jury. (1) irrespective of whether the statement was true, or the witness believed it true, or had probable cause to believe it true; but This is unsound. None of the rea- ment is one having some reference or (2) provided the subject of the statesons given for it are valid. $347. Defamation. A witness is excused for harm caused by a defamatory statement made by him while pertinence to the cause on trial, though not strictly relevant in his testimony; and [(3) provided the motive of the witness is not malicious.] " Topic 5. Counsel and Attorney § 348. In Open Court. A counsel is excused for harm caused by a defamatory statement made by him while acting as counsel in open court at any stage of the trial; (1) irrespective of whether the statement was true, or the counsel believed it true, or had probable cause to believe it true; but (2) provided the subject of the statement is one having some reference or pertinence to the cause on trial, though not strictly relevant to the issue; 7 6 [and, (3) provided the motive of the counsel is not malicious]. 5 party as the same, as maintained in To regard the rule for counsel and for Hoar v. Wood, No. 1000, and McLaughlin v. Cowley, No. 1002, must be deemed unsound. § 349. Out of Court. An attorney is excused for harm caused by a defamatory statement made by him while acting as attorney-at-law out of court, Scavage v. Tateham, No. 1092; Edwards v. Ferris, No. 1093. 2 Brock v. Stimson, No. 1095; Leger v. Warren, No. 1096. 3 Floyd v. Barker, No. 1099; Dunham v. Powers, No. 1100. 4 Damport v. Simpson, No. 1101; Godette v. Gaskill, No. 1102. Ayres v. Sedgwick, No. 1103; Seaman v. Netherclift, No. 1104; McLaughlir. v. Cowley, No. 1002. Seaman v. Netherclift, No. 1104; Hunckel v. Voneiff, No. 1105. Brook v. Montague, No. 1107; Munster v. Lamb, No. 1108; Hoar v. Wood, No. 1109; Maulsby v. Reifsnider, No. 1110. 8 Munster v. Lamb, No. 1108; Hoar v. Wood, No. 1109; McLaughlin v. Cowley, No. 1002; Maulsby v. Reifsnider, No. 1110. subject to the limitations of par. (1), the attorney's position to the party's (2), and (3) in § 348. (ante, §§ 318-20) seems too strict; hence par. (1) should obtain. To asThere has been little or no attempt similate it to the counsel's seems too to work out this aspect. To assimilate | liberal, hence par. (3) should apply. SUB-TITLE (VIII): POLICIES SEEKING JUSTIFICATION IN THE NECESSITIES FOR INDEPENDENCE AND EFFICIENCY OF PUBLIC OFFICERS IN GENERAL § 350. General Principle. A public | merely on the existence of a specific officer, other than a judicial officer, is excused for harm caused by an act done officially in the exercise of a power (duty) pertaining to his office, if (1) the power is one validly granted by a constitutional law, and (2) the specific act is of a class within the scope of the power; subject to the following limitations. § 351. Executive and Administrative Officers in General. For a civil executive or administrative officer, doing officially an act of a class within the scope of his powers, (1) In any case, if his motive was malicious, the excuse is [not] lost.1 The negative rule is recognized only for libel, and in some courts. (2) If his power is ministerial only, i. e., is limited to doing a specific act in a specific way, and he does not do that act in that way, the excuse is lost, irrespective of his honest belief or probable cause.2 (3) If his power is discretionary, but the discretion is conditioned solely on the existence of a specific state of facts, and his act is done on any other state of facts, the excuse is lost, [unless he acted with honest belief and on probable cause.] 3 (4) If the power is discretionary, and the discretion is conditioned, not state of facts, but also on the reasonableness or necessity of some action in consequence of such facts, and no such reasonableness or necessity existed, the excuse is lost, [unless he acted with honest belief and on probable cause.] * 4 The Courts are as yet, not only at variance in their solution of these particular points, but also unclear as to the general lines of distinction for reaching these solutions. The above summary attempts merely to suggest a classification which fairly recognizes the opposing policies, while indicating the precise points of dissension. Some Courts speak of the rule of par. (4) as if it were based on the rule for judicial officers (ante, § 322); but this is an error, for malice would not take away a judge's privilege. § 352. Military Officers. For a military (including naval) officer, doing officially an act of a class within the scope of his powers, (1) If his motive was malicious, the excuse is lost.5 (2) In so far as his power included discretion to act upon a specific state of facts, or upon the reasonableness or necessity of some action in consequence of such facts, and no such facts existed, or no such reasonableness or necessity, the excuse is still valid, [in spite of a] [unless in case of a] lack of probable cause for his honest belief. 7 1 Mostyn v. Fabrigas, No. 1123; Donahoe v. Richards, No. 1128; Chatterton v. Secretary of State, No. 1127; Royal Aquarium Soc'y v. Parkinson, No. 1145. 2 Miller v. Seare, No. 1124; Ferguson v. Kinnoull, No. 1125. 3 Van Deusen v. Newcomer, No. 1129 (two judges); Fields v. Stokley, No. 1130; Donahoe v. Richards, No. 1128; Miller v. Horton, No. 1131; Pearson v. Zehr, No. 1133; Valentine v. Englewood, No. 1134. 4 Raymond v. Fish, No. 1132. 5 Wall v. McNamara, No. 1136; Dawkins v. Paulet, No. 1137; Wilkes v. Dinsman, No. 1138. 6 Wilkes v. Dinsman, No. 1138; Statutes, No. 1140. 7 Mitchell v. Harmony, No. 1139. 6 Distinguish here (a) the refusal of a | cipal's command does not excuse an civilian Court to take jurisdiction of a agent. claim against a military officer which has been already adjudicated in a military tribunal; (b) the excuse, for a military inferior, of an express order by a superior to do the specific act (Statutes, Nos. 1140, 1141); this is settled in judicial law also (Ford v. Surget, 97 U. S. 594; Re Fair, 100 Fed. 149), and is analogous to the excuse of ministerial officers of justice acting under a warrant (ante, § 327). In general, however, a prin § 353. Legislative Officer. For a legislative officer, doing officially an act of a class within the scope of his powers, the excuse is not lost (1) by a malicious motive, nor (2) by a lack of facts or law or reasonableness or necessity as a basis for the act, nor (3) by a lack of honest belief or probable cause therefor.1 SUB-TITLE (IX): POLICIES SEEKING JUSTIFICATION IN § 354. English Rule. Harm done by a private person while exercising a power to act given to him by express enactment of the Legislature is excused; 2 provided (1) the particular act causing the harm was expressly authorized in the enactment, and (2) the harm is unavoidable in any reasonable mode of doing the act.3 by a private person while exercising a power to act given to him by express enactment of the Legislature is excused, provided (1) the particular act causing the harm is expressly authorized in the enactment, and (2) the harm is unavoidable in any reasonable mode of doing the act, and (3) the harm is of a class not protected from legislative action by some §355. American Rule. Harm done constitutional guarantee. 1 Coffin v. Coffin, No. 1143; Kilbourn v. Thompson, No. 1144. 2 British C. P. Mfrs. v. Meredith, No. 1147; The King v. Pease, No. 1148; Vaughan v. Taff Vale R. Co., No. 1149. 3 Hammersmith & C. R. Co. v. Brand, No. 1150; Attorney-Gen'l v. Colney H. L. Asylum, No. 1151; Metropolitan D. Asylum v. Hill, No. 1152. 4 Cogswell v. N. Y. N. H. & H. R. Co., No. 1154; Towaliga F. P. Co. v. Sims, No. 1156. 5 Radcliff's Ex'rs v. Mayor, No. 1153; Towaliga F. P. Co. v. Sims, No. 1155. Radcliff's Ex'rs v. Mayor, No. 1153; Cogswell v. N. Y. N. H. & H. R. Co., No. 1154; Sawyer v. Davis, No. 1155; Towaliga F. P. Co. v. Sims, No. 1156. |