#### John Flack, Plaintiff in Error, v. Wiley O. Harrington, Defendant in Error.

ERROR TO JACKSON.

If a magistrate officiously and without any complaint on oath or of his own knowledge, issues his warrant to apprehend a person, he will be liable in an action of trespass.

This was an action of trespass, assault and battery, and false imprisonment, brought by Harrington against Flack, a justice of the peace, and one Johnson, who was deputed by Flack to serve a warrant on plaintiff below.

The first count of the declaration states that Flack, as justice of the peace, irregularly and illegally issued a warrant against the plaintiff below and others, to answer the complaint of the people of the state of Illinois, for a breach of the peace said to have been committed on the body of one Edward Valentine, without any affidavit having been made before him, the said Flack, by any person against the said Harrington, and without any personal knowledge of the transaction above mentioned and complained of, or other legal information or accusation, whereon to have predicated his said warrant so issued as aforesaid, and whereby to justify his said proceedings. He the said Flack having no reasonable or lawful cause whatever to suspect that the said Harrington had been guilty of the said supposed breach of the peace, which warrant was delivered to Johnson, and the plaintiff below arrested on it by the advice and request of Flack. The second count is similar to the first.

To this declaration Flack and Johnson demurred, which was overruled by the court below, whereupon they severally plead not guilty; and Johnson plead in addition, a special plea of justification.

On the trial, Johnson was acquitted and Flack was found *214guilty, and judgment rendered against him for damages and costs.

Opinion of the Court by

Justice Lockwood.

This case is clearly distinguishable from the case of Flack and Johnson v. Ankeny, decided this term. The allegation here is, that Flack officiously and without any complaint on oath, issued his warrant for the apprehension of Harrington. And these allegations are found true by the verdict of a jury upon a plea putting the facts directly in issue. Will the law tolerate such conduct in its officers ? This is clearly not a case of error in judgment in a case legally before the justice.

In fact, there was nothing before the justice to authorize him to act at all, for he made the case and then adapted his process to the assumed facts. A justice in issuing a warrant for the apprehension of a person for a criminal offense, acts ministerially, and can not, of his mere motion, institute such a proceeding, unless in particular cases, where he is present at the commission of the offense.

If he voluntarily acts, he is liable to an action, and trespass will lie. The law appears to be well settled on this point, as will appear from the following authorities. In Swift’s digest, page 800, the law on this subject is stated as follows :

If a justice of the peace, without complaint or information, should issue a warrant, and cause a person to be arrested, trespass would lie against him, for though he. is excused when he issues a warrant on a false accusation, yet it is otherwise where he issues his warrant without accusation. Swift cites Cro. El., 130. In the case of Wallsworth v. Mcullough, 10 Johns., p. 93, this was an action of false imprisonment; on the trial the following facts appeared. That the plaintiff was arrested by virtue of a warrant issued by defendant as a justice of the peace, on the complaint of the overseers of the poor, setting forth the examination of the mother, &c. The overseers, however, testified that they never made complaint, nor did they request the justice to issue the warrant.

They also stated that one Garley was occasionally employed by them to do their business, but they had not employed him in this case, and on whose application the warrant liad actually issued. The overseers appeared before the justice on the examination and agreed to the proceedings. The warrant issued without authority, because it was not issued upon the complaint of the overseers of the poor, or either of them. The justice, acting ministerially in this case, was responsible for issuing the warrant without the application required by the statute. The subsequent consent of one of the overseers, that the proceedings might go on, would not deprive the plain*215tiff of the action for the previous arrest, upon a warrant irregularly issued. And the same court in the case of Jones v. Percival, 2 Johns. Cases, 49, held, “ trespass for a false imprisonment lies against a justice of peace who voluntarily and without the request or authority of the plaintiff in an action before him, issues an execution against the body of the defendant who is privileged from imprisonment, who claims his privilege, and is taken on the execution.” The errors assigned are altogether technical and relate to form, and do not appear to require any examination. The judgment must be affirmed with costs, (a) , (1)

Cowles, for plaintiff in error.

Eddy, for defendant in error.

Judgment affirmed.

(a)

Vide Flack v. Ankeny, ante, page 187.

(1)

See note to Moore v. Watts, ante, p. 42.