
    
      Hezekiah Miller vs. W. H. Grice.
    
    In an action on the case against a magistrate, for issuing a warrant, for an assault and battery committed in another State, under which the plaintiff was arrested and imprisoned, it is only necessary to shew that the defendant knew the fact^ when he issued the warrant, that the offence was committed out of his jurisdiction. Want of malice or corrupt motive, and error of judgment as to the defendant’s jurisdiction over the matter, though they may be used in mitigation of damages, will not justify the defendant.
    As a general rule, the costs of a first action should always be paid, before the plaintiff should he permitted to proceed with a second action for the same cause. The matter, however, is within the discretion of the circuit Judge.
    
      Before Butler, J. at Marion, Fall Term, 1845.
    The report of his Honor the presiding Judge is as follows.
    
      “ This was an action on the case, brought by one of several persons, against the defendant, for having them arrested under a warrant issued without the sanction of law, and with a knowledge that the defendant had no jurisdiction over the offence covered under the warrant. The history of the facts connected with the case, will present its merits. By a recital in the warrant, dated the 28th of October, 1841, it appears that one James Gaddy made oath that on the 19th of June, William Miller assaulted and beat him, and that the plaintiff aided and assisted him. The place where the beating took place, was not mentioned. The warrant was directed, as usual, to have the parties arrested, and brought before a justice, to be dealt with according to law. The sheriff of the district, to whom it was delivered, gave it to John D. Shaw, one of his deputies, to have it forthwith executed. Shaw immediately apprehended the persons, and had them brought before one McMillan, a justice; not being able, at the time, to find the present defendant. McMillan wrote a commitment, and the plaintiff, with his brother, were put in jail, where they remained for two or three days. They were brought before Judge Earle on a habeas corpus. The judge declined to interfere, but referred the matter to the defendant, with an intimation that it was competent for him to discharge the persons charged, if it should appear that their offence had been committed in North Carolina, as it was alleged. The defendant forthwith caused the plaintiff to be brought before him, and made an order for his discharge, with an indorsement something to this effect:
    
      “ ‘That the party having been brought before Judge Earle, on habeas corpus, and the matter being referred to him, he discharged the parties in the warrant, as it appeared that their offence had been committed in North Carolina.7
    “As facts that were conceded, it may be proper to state that Gaddy lives in Robeson County, a few hundred yards from the South Carolina line — and that the present plaintiff and his brother were citizens of South Carolina, residing in the neighborhood of Gaddy; that while in North Carolina, they had a fracas with Gaddy, the circumstances of which did not come out; and. that after they had their rencoun-ter, in which it was alleged that Gaddy was beaten, the other party returned to their homes, where they remained until their arrest. Immediately after their discharge, they commenced an action of trespass against the defendant, and recovered a verdict of fifty dollars ; which, however, was set aside, on the ground that the plaintiff had misconceived his remedy. Since that decision this action was commenced. When it was called for trial, the defendant’s counsel moved to have it staid until the costs of the former suit were paid up. Although it appeared from the execution issued for the costs, that nulla bona had been returned by the sheriff, I refused the motion to stay the proceeding on this suit, holding that, prima facie, the costs were in fact due the officers of court; and, further, I thought that, from the fact that plaintiff had recovered a verdict for fifty dollars, he might have merits in his cause of action, notwithstanding he had mistaken his remedy. The further evidence on the part of the plaintiff was as follows.
    
      f< Barfield Moody said that he had been applied to as a justice, to issue a warrant against the ■ Millers, but that he declined to act, and sent word to Gaddy that he had no authority to act. This was before any warrant was issued by the defendant. After the suit was commenced against Grice, the witness said he met him in the street, and told him, rather playfully, not to mind the suit; that he might plead ignorance that the beating- had been committed in North Carolina. Grice seemed touched, and said he could not do that; for that Gaddy had stayed at his house, and had communicated with him fully on the subject. This witness said that Gaddy and Grice were intimate, and were distantly connected by marriage. In another conversation, plaintilf did not pretend that he was ignorant that the affray took place in North Carolina; and spoke of the Millers as bullies and trifling characters, that deserved little countenance — spoke of the beating of Gaddy in terms of indignation — and that the Millers ought not to escape punishment.
    
      “ The defendant offered no evidence; but, by his counsel, contended that he was not answerable in this action. 1st. Because he issued the warrant without knowing where the offence was committed. But the main ground taken was that the plaintiff, as a justice of the peace, had a right, and was bound, to have the plaintiff arrested as a fugitive offender from another State. I charged the jury to the following effect: — that if the defendant issued his warrant in ignorance of the fact as to where the offence was committed, and in the ordinary discharge of his duty as a justice, the verdict should be in his favor. But I said, if he knew the offence was committed in North Carolina, the case assumed a different character. For that, in any point of view, if a justice in one State undertakes to have arrested a fugitive offender from another, he should do so in good faith, and with the purpose to detain such offender to be dealt with according to the true intent and meaning of the Constitution of the United States. It was very clear to my mind that such was not the purpose of the defendant in this case. The warrant was in the ordinary mode of proceeding, to have the party arrested, and to be dealt with according to law, that is, the law of South Carolina. The explanatory indorsement that the parties charged had been discharged upon information that the offence had been committed in North Carolina, would show that there was no design to proceed under the Constitution of the United States. I said, however, that if such had been the design, I would bold the law to be that, when a fugitive offender from another State, having flagrantly committed treason or felony, he might be justifiably arrested under the warrant of a justice of a different State. But that in cases of mere misdemeanor, such as assaults and batteries, it was never contemplated by the Constitution of the United States, nor sanctioned by the usages under the common law, that they should fall within the scope of a justice’s authority derived from a foreign jurisdiction. In connection with this subject, I said that there might be other crimes besides felony and treason, for the commission of which the Executive of the State offended might make a demand of the culprit. Crimes of deep moral turpitude, or' those of a political complexion, might fall within this class. The security against oppressive and vexatious arrests would, in such cases, be found in the discretion of the Sovereign Authority that would be called in to exercise it. The mischief would be great indeed, if justices of the peace were to undertake to arrest every one coming from another State, that might have been guilty or be charged with any offence of a petty misdemeanor. There was another view in this case; the parties charged were not, strictly speaking, fugitives from justice ; they had returned home, and were arrested while they were relying on the protection of their own laws, and when they did not think themselves guilty of the offence charged; for they were willing to so into evidence to shew that they were not in fault in the rencounter with Gaddy. I said to the jury, that in the points of view which I had taken, the defendant was not justified in causing the plaintiff to be arrested. I said, however, if he proceeded from an honest mistake of what was the law on the subject, and with a bona fide design to have punished the parties charged as lawless culprits, there was much to excuse him. His motives should give character to his acts, and that, however illegal, they might not be altogether without foundation. I was inclined to think that the defendant was not actuated from malice ; but rather thought that vanity had more to do with his judgment. The jury found a verdict of thirteen dollars for the plain tiff.”
    The defendant appealed, and now moved for a nonsuit or new trial, on the grounds,
    1. Because a civil action will not lie, the act being judicial.
    2. Because there was no proof of malice or corrupt motive.
    3. Because the defendant had jurisdiction, under the Constitution of the United States, to cause the plaintiff to be arrested as a fugitive from justice.
    Failing in this, then he renewed his motion to stay proceedings until the costs of the first action be paid.
    Miller, for the motion,
    contended that, the action cbuld not be maintained where there was mere error of judgment, and no proof of malice or corruption. 2 Bay, 1, 384; 2 N. & McC. 168.
    The defendant had a right to cause the plaintiff to be arrested under the 2d section of the 4th Article of the Constitution of the United States. The word “ crime,” in this section includes misdemeanor. 4 Bl. Com. 5; 4 Johns. Ch. R. 110 ; 1 Hill, 355 ; Act 1839, p 14 ; 1 Kent, 36 ; 3 Story, 575.
    On the motion to stay proceedings, he cited 6 T. R. 740; 8 T. R. 645; 4 East, 585; 2 T. R. 511; 2 Sel. Pr. 450; Bac. Abr. Costs.
    
      Thornwell, conti a.
    
      
       Vide 1 Rich. R. 147.
    
   Curia, -per Butler, J.

The defendant has been allowed all the advantages that are incident to the remedy by a special action on the case. Upon the merits of the case, the verdict of the jury has verified these facts, — that, at the time the defendant issued his warrant, he was aware of the fact that the subject matter of the warrant was wholly without the limits of South Carolina; and, therefore, in no wise within his jurisdiction; and that the arrest and imprisonment'of the plaintiff, were at least illegal, if not wilfully oppressive. If the defendant had commenced and conducted his proceeding under erronious information, or upon such grounds as would have induced a man of ordinary vigilance to believe that the offence was cognizable before the tribunals of South Carolina, he might have been justifiable — not according to strict law as it would be enforced in an action of trespass — but upon the liberal indulgence of courts, in regarding the true merits of a cause as they may be developed in a special action on the case. For, in general, the proposition is true, that when a party has been arrested by the illegal process of a justice, or other inferior officer, issued without competent jurisdiction, he has a right to hold the parties to the proceeding liable for false imprisonment. The exceptions to this general rule will be found to depend, frequently, on the fact whether the officer acted in ignorance of such facts as woi^ld have misled a reasonable man ; or whether he proceeded in spite of such knowledge to assume jurisdiction of the matter. Grice, the justice, in the case before the court, was not deceived or misled, as to the place where the offence charged against the plaintiff had been committed. Of this fact he was fully informed. His justification, if it can be sustained at all, must rest on a mistake of judgment, as to the extent of his judicial powers.

The case being reduced to this simple question, it will be unnecessary to notice many of the topics that have been brought into discussion by the counsel for the defendant. No constitutional question is involved. The defendant did not pretend to act under the constitution, when he arrested the plaintiff, or when he discharged him. The warrant was in common form, to have the party charged apprehended, so as to make him answerable to the tribunals of South Carolina, for an,offence committed in North Carolina. The defendant knew as much before he issued his warrant as afterwards when he made an order to discharge the plaintiff. He knew, from the beginning, that the offence had .been committed without the territorial limits of his jurisdiction. His remark, on the back of the warrant, that he had discharged the parties, on the ground that their offence had been committed in a foreign jurisdiction, might go to shew a covert purpose in not making that fact appear in the original proceedings. In any point of view, it will go conclusively to shew that he was not acting either under the Constitution of the United States, or frpm a regard to the comity of nations. I am, at all times, willing that any party shall avail himself of the constitution, as a shield of protection, when he is entitled to it, by acting in good faith under its authority ; but I am unwilling that it shall be made a cloak to hide reckless ignorance or absurd mistake, much less to disguise the purpose'iof wilful oppression. I will go further, and say that innocent mistakes committed by justices of the peace in reference to matters arising out of the laws of the State from which they derive their authority, may well be justified under the benignant spirit that pervades the judgment of the court, in the case of Reid vs. Hood & Burdine, 2 N. & McC. 168. I am willing to be to their faults a little blind,” but not to shut my eyes to the illegality of proceedings originating in' inconsiderate folly, or dictated by the caprice and conceit of a speculative theorist on the comity of nations.

According to the argument of his counsel, Grice contends that he has a right to erect himself into a judicial sentinel, for the purpose of apprehending all persons coming from other States, and to make them answerable for petty misdemeanors, no matter how trivial, which they may have committed before they came to South Carolina. ' That is, he has a right to put them in jail, till his judgment can be enlightened on the merits of their cases. There is something revolting in the extravagance of the proposition. It goes so far as this, that an inferior magistrate, in South Carolina, can assume extra-territorial jurisdiction, so as to take cognizance of matters beyond the limits of the government from which he derived his authority ; or at any rate, that he is not answerable for wilfully assuming jurisdiction to that extent. That he has no such authority is conceded. But the question is, whether he can be justified for a mistaken judgment on the subject. No matter how absurd it may appear to others, it is contended it mav not have appeared so to him; and that he ought not to be made liable for an opinion formed in the discharge of his judicial functions. To this it may be answered, at once, that he never was invested with any judicial authority to decide upon the criminal liabilities of parties originating in North Carolina. His authority, as a justice, was confined to the limits of his own State; and within these limits he has a prescribed jurisdiction, both as to the subject matter and the mode of proceeding. Even here, his jurisdiction is limited and defined, and, in no case, has he a legal right to transcend the limits of his authority. If he were to do so wilfully, and with a corrupt design, he would be answerable, in all cases, for the consequences. But a mistake of judgment, in respect to jurisdiction, honestly made, in the discharge of judicial functions, may be justified, upon the ground that an error of judgment is incident to the position in which he was required to act by the laws of his country.

The whole subject of liabilities growing out of the proceedings and sentences of courts of inferior jurisdiction, is fully and elaborately considered in the case of Gwinne vs. Poole, which may be found reported from 2 Lutw. in the 3d vol. of Phill. on Ev. by C. <fc H. 991. The action was false imprisonment against the party, magistrate and officer, for arresting the plaintiff by a capias issued from an inferior court. It appeared that the cause of action arose out of the territorial jurisdiction of the inferior court, although that fact did not appear in the proceeding. Powell, J. remarks, in the conclusion of his learned judgment: — “But, in the case in question, the court hath jurisdiction of the action, inasmuch as it is an action of debt; and that action being transitory in its nature, arises in point of law in all places, because it is a debt in every place. It is true that it arose not, in fact, within the jurisdiction of the court, which it ought to do, to entitle the court to hold plea thereof; but the judge and officer could not know it, unless by the plaintiff or defendant in the action; and till they know it, the rule shall be in this case, as well as in others, ignorantia facti excusat.” The entire reasoning of his judgment is made to turn on the question of knowledge as to where the cause of proceeding had originated. All inferior magistrates, having a local jurisdiction, are liable or not, with this difference, “where it appears, or may reasonably appear, to them that the cause arose out of their jurisdiction, and yet notwithstanding, they proceed, they are liable to an action ; but it is otherwise where it doth not appear, or cannot reasonably appear, whether the cause arose out of their jurisdiction or not; for then,” says the judge, “I am of opinion that no action will lie against them, unless they proceed after they are informed or know that the cause of action arose out of their jurisdiction.” Let the case before the court be subjected to this test, and how does it stand 'l The defendant knew, and was informed, that the subject matter of his warrant was beyond the jurisdiction of this State. The English Judges were not so tender as to put the justification of the officer on a mistake of judgment, but on a knowledge of facts that should regulate and control his judgment. I think this is the safest and only practicable rule, because it is the only tangible rule. What may be a mistake of judgment, where the jurisdiction is territorial, allows a latitude without limits, and is calculated to make all inferior tribunals irresponsible ; naked usurpation might always cloak itself under mistake. Now, where the magistrate has jurisdiction in part of any matter, either as to the mode of proceeding, or in respect to the subject that may fall within his jurisdiction, as whether it be matter ex contractu or ex delicto, a mistake of judgment may well be made without liability for its consequences. The rule, in such case, arising from the obscurity of the law, or the confusion of the facts, should be error legis excusat, in contradistinction to scientia facti non excusat. In this point of view, the case of Reid vs. Hood & Burdine may well stand with authority. It is not in accordance with the tenor of the New York decisions. I, however, not only acquiesce in that decision, but adopt it as good law. The justice had authority to issue the attachment, and only erred in giving a judgment himself, instead of returning the proceedings to the court for its adjudication. It was an error as to law and not fact. So of the case of Young vs. Herbert, 2 N. & McC. 172, note a, where the justice committed the plaintiff to jail, because he could not give security for the maintenance of a bastard child. The complaint against the justice was, that he had committed an error in law, and for that, he was properly held not to be liable. This can scarcely be the case where the, question of jurisdiction depends on the fact as to where the cause of proceeding arose. It is said, however, that the defendant in the case before the court, may have supposed, from his opinion of the law, that he could have the plaintiff punished in South Carolina, for an assault and battery committed in North Carolina. In other words, he may have conceived it his duty to make an effort to preserve the peace and supervise the public justice of the United States. This is a large view of the subject, not apt to be indulged in but by very few.. I rather suppose that the defendant is the first justice who ever undertook to make culprits of another State liable to the tribunals of the State in which he held his commission. If there had been any ground to believe that he was ignorant as to where the offence was committed, the verdict should have been in his favor; but that fact being brought home to him, he must abide by the consequences. He has committed the fault of one who has taken rather too large a view of his duties. I would have been very sorry to have seen him mulct for too large an amount, for it may be that he was governed by worthy motives, and at most has only been guilty of ostentatiously exhibiting the amplitude of his authority in the pursuit of justice. There is, however, much more safety in adhering to the certainty of strict common law and definite jurisdiction, than to undertake to supervise the more enlarged province of speculative justice. A majority of the court think the instructions below were correct, and, therefore, refuse to interfere with the verdict of the jury.

As it regards the motion to stay the proceedings in this case until the costs of the former action were paid, it may be proper to remark, that no inflexible rule has been acted on in. this State. The general rule is, that where the same matter is brought into controversy more than once by successive actions, the costs of the first action should be paid before the others should be allowed to proceed. To make the rule fair, such motion should be made at as early a period as practicable, to prevent surprise and an unnecessary accumulation of costs. In this case, the course pursued is affirmed.

Evans, Wardlaw and Frost, JJ. concurred.

O’Neall, J.

dissenting. The case of Millers vs. Grice & McMillan, 1 Rich. 147, ruled that the fact that the offence was committed in North Carolina, did not make the defendant liable as a trespasser. That case holds that the defendant could only be made answerable in case. Assuming that the former case was rightly decided, it is now to be examined whether in case the defendant, a magistrate, is liable for mere error of judgment. For the Judge below ruled that his mistake in this behalf would make him liable if he knew the fact that the offence was committed in North Carolina. It seems to me that it was necessary, not only to shew this, but also that the magistrate acted maliciously or corruptly. The leading case of Gwinne vs. Poole, 2 Lutw. 1560 to 1572, states the rule correctly; to make a justice liable for a matter out of his territorial jurisdiction, it must be shewn that he knew the matter, and that he proceeded for mere purpose of vexation ; and then that the action is case and not trespass. This makes him liable, not for mere error of judgment, but for the evil intent with which he acted. In Reid vs. Hood & Burdine, and Young vs. Herbert, it is plainly and fully decided that a magistrate is not liable, unless he acted from malicious or corrupt motives.

No other rule can be safely adopted against magistrates. For if they be liable for mere error of judgment, as to territorial jurisdiction, they will be harrassed by hundreds of cases, where the party has no merit, and can only stand on the point of law. But if the party be required to shew facts, from which it may be concluded that the justice, knowing that he had not jurisdiction, yet assumed it, to harrass an innocent man, or for the sake of gain, then justice will be done to both. The magistrate will be protected from vexatious suits, and a wrong done by him will be redressed.

Originally, the courts in this State held that an action on the case would not lie against a justice of the peace, for any act done virtute officii; but if there was any just cause of complaint, he should be indicted for corruption or oppression; The State vs. Johnson, 1 Brev. 155; Lining vs. Bentham, 2 Bay, 1; and I am not prepared to say that it would not have been wise to have always adhered to that decision. But it has been departed from, and instead of an indictment, the action on the case has been held to lie for exactly the same causes for which an indictment might have been sustained. No one would contend that a magistrate, for causing the perpetrator of a flagitious misdemeanor in a neighboring State to be arrested, would be guilty of such a crime as would subject him to punishment. The evil intent is wanting. For every one says it is perfectly right that such an offender should be punished; nothing saves him but a nice law 'point, upon which many a Judge might commit the very error which Grice committed.

The case of Perrin vs. Calhoun, 2 Brev. 248, was trespass against a magistrate for illegally countersigning a warrant from Georgia, and causing the defendant to be arrested. In that case it was held, even where he had no shadow of authority to do the act he did, that yet his motives would, if pure, go far in mitigation. If that action had been case, which proceeds upon the special circumstances and the very right of the case, the Judges would have held that the magistrate was not liable, if he acted from good motives. But as his countersigning the warrant was wholly illegal, and no exercise of any powers belonging to a justice, he was a trespasser, as much so as if he had seized the defendant himself; and hence his whole excuse was in mitigation.

In Armstrong vs. Campbell, 2 Brev. 259, the Judges recognise a plain distinction, that when a magistrate acts ministerially he is liable, if he does not follow the law; but if he acts judicially, that he is not liable, unless he acts from evil motives.

Richardson, J.

I have - considered the opinion of my brother O’Nball, and entirely concur in its legal princi-pies. The question before the magistrate was strictly judicial and not ministerial. If his decision was free from corrupt motive — which is admitted — he is no more to be connected with the imprisonment that followed, than a judge with the consequences of an attachment he has erroneously ordered. But, that the false imprisonment of Miller was not altogether palpable, would seem from the forbearance of Judge Earle instantly to set free the prisoner upon the habeas corpus. Upon this head permit me to quote, from 1 Rich. 149, the words of the judge who delivered our decision in the former case of Millers vs. Grice & McMillan. He says, “it is far from clear, that when an offence, such as that committed by the plaintiffs, is committed in one State, and they are found in another, they may not be apprehended and held, until the Governor of the State whose laws have been violated, may demand them.” How easy and often is it, that judges are charged with the usurpation of authority? Corporations do it continually and with personal impunity. The most unerrable authority assures us, that boni judiéis est ampliare jurisdictionem. It is the proper leaning of judicial tribunals, in order to do justice. Once lay aside the distinction between judicial judgments, if incorrupt, which are necessarily irresponsible, and the responsibility of ministerial officers, and you strike fatally at the essential independence of judges and juries, and all officers whose office consists in judgments and not in their administration under a warrant.

But let it be conceded, that in this very case the usurpation of authority by the magistrate may have been so palpable as to indicate corruption ; still in that case the verdict should have turned entirely upon that question, and the admitted incorrupt motive should have amounted to a full justification, and not merely to extenuation. It is a case turning upon a great principle of the common law. For such reasons, my opinion is, that the case should go back, in order to try distinctly whether the motive was corrupt, or the judgment of the magistrate only erroneous, the verdict to turn entirely upon the conclusion of the jury upon the question of corruption, without which, I know of no judicial officer having ever been mulct in damages, however erroneous his judgment. Are we not then sacrificing a great principle in a small case, and allowing the sine qua non of such a verdict, corrupt motive, to be legally substituted by the mere vanity and giddiness of a judicial officer, who has erred ón a question of law 'l 
      
       Broom’s L. M. 36.
     