
    LYMAN H. BALDWIN, Plaintiff in Error, vs. WILLIAM H. HAMILTON, et al., Defendants in Error.
    ERROR TO CALUMET CIRCUIT COURT.
    A justice of the peace has no jurisdiction in actions for malicious prosecution.
    An affidavit to authorize the issuing of a warrant by a justice of the peace, in a criminal case, must be at least colorable; there must be some approach at least, towards charging- a criminal offence.
    In cases where the justice is totally without jurisdiction, he is liable for all acts done by him, and for all then- direct and necessary consequences.
    When the process shows on its face that the justice issuing it, has no j urisdiction ■ of the subject matter, the officer is not protected in executing it.
    Malicious prosecution, is not a criminal offefice in this State, not having been made so bystatute.
    Sec. 8 of chap. 105 of the Revised Statutes, does not contemplate cases of malicious prosecution as understood at common law; but the causing of a person to be proceeded against in law or equity by another, without his consent, ov where there is no such person known.
    This was an action of trespass for assault and bat tery, <fec., commenced by the plaintiff in error agáinst the defendants in error, in the Circuit Court of Calumet county. Plea, the general issue, and notice of justification, that one of the defendants, Mod-lin, was a justice of the peace for the county of Calumet ; that Marygold, another of the defendants, personally came before him, and on oath made complaint against the said plaintiff, as follows :
    “ John Marygold being duly sworn and examined, makes complaint and says, that Lyman H. Baldwin did on the 2d day of May, A. D. 1853, at the town of Manchester, in said county, willfully and maliciously and with intent to vex him, the said John Marygold, cause and procure upon him, the said John Mary-gold, j°ined with, one Patrie 'Donahoe, a prosecution at law to be earned and conducted against the form 0£ g^u^e jn g^p cage mac[e and provided, and aga^g^- peace and dignity of the State of Wisconsin, and prays that the said Lyman LI. Baldwin may be arrested and dealt with according to law.”
    To which he, the said John Marygold, subscribed his name, and was by this defendant, Modlin, then and there duly sworn ; upon which complaint this defendant then and there in due form of law as such justice, issued a warrant for-the apprehension and ar-‘ rest of this said plaintiff, Baldwin, which warrant was delivered to a proper officer for execution.
    That the defendant Petit was deputy sheriff of said county, and that by virtue of the said warrant, he arrested the plaintiff and took him before the said justice, who proceeded to hear and examine the complaint, and adjudged that there was probable cause to believe the plaintiff guilty of the said charge, and required him to enter into recognizance for his appearance before the Circuit Court of said county. That thereupon the plaintiff entered into such recognizance, and was discharged from custody. The other defendants joined in a similar notice, and the case proceeded to trial at.the May term, 1854, of the Circuit Court.
    On the trial the plaintiff proved the.arrest, by the defendant Petit, who took him before the justice, where he was detained some two or three hours. Evidence was also given tending to implicate the other defendants,
    The defendants offered in evidence the affidavit, a copy of which is heretofore given, and also the war rant issued thereon, and by virtue of which the arrest was made, which is as follows :
    “ Calumet County, ) Town of Stockbridg.e. $
    
      lo the sheriff or any constable of said county :
    
    In the name of the State of Wisconsin, you are hereby commanded to take the body of Lyman H Baldwin, if to be found within your county, and him bring forthwith before the undersigned, one of the justices of the peace in and for said county, at my office in said town, to answer unto John Marygold? plaintiff in a plea of trespass for a .malicious prosecu tion, to his damage one hundred dollars or under, and you are commanded to give due notice “thereof to the plaintiff. Hereof fail not at your peril.
    Given under my hand at Charleston, this 26th day of May, A. D. 1853.
    ' Henry Moulin, Justice of the Peace.”
    And also the return thereon as a justification, which was objected to by the plaintiff, but the objection was overruled, and exception taken.
    Upon this evidence the court instructed the jury that the writ on its face did not disclose any want of authority in the magistrate, and as an officer Petit was bound to obey it, and was protected by it. That as to the defendant, Modlin, the affidavit was clearly sufficient to authorize him to issue the warrant That as to the defendant, Marygold, this being a criminal prosecution, Marygold was a witness for the State, and that he was not liable for the affidavit unless it was false. To all of which the plaintiff ex. cepted. The jury returned a verdict of “ Hot Guilty,’ • and judgment was -[rendered thereon for the defendants. '
    
      
      ^a^0ni ^01' the plaintiff in'error.
    
      ■&' & O^on, t°r the defendants in error.
   ^ ^ Court,

Whitow, C. J.

. There can be no doubt that the judgment.in this case is erroneous and must be reversed. The affidavit which was made before the justice, by Marygold, appears to have been intended by him as the commencement of a civil suit; an action to recover damages which he had sustained in consequence of the prosecution of him by Baldwin, maliciously, and with intent to vex and trouble him.

The justice appears to have taken the same view of the case, as he issued a warrant complying in form to the Revised Statutes. (Rev. Stat, chap. 88, § 33.)

If a justice of the peace bad j urisdiction to try and determine such an action, we should think that the proceedings before Modi in, the justice who issued the warrant, were a sufficient protection for him and for all who acted in obedience to his process in good faith. But this" is not the case. By section 10, of chapter 88, of the Revised Statutes, actions of this nature are expressly excepted from those of which a justice has jurisdiction.

As the justice was totally without jurisdiction to entertain the case, we do not see how he, or the party who procured the issuing of the process, or the officer who executed it, can be protected, unless the proceedings can be sustained as the commencement of a criminal prosecution.

The judge before whom this cause was tried, considered the proceedings before the justice to be of this nature, as appears .by the bill of exceptions ; but we think that this, view of them is erroneous.

The warrant commands the officer to take the body of Baldwin and bring bim forthwith before the justice, “ to answer unto John Mary gold, plaintiff; in a plea of trespass for malicious prosecution, to his damage one hundred dollars or under.”

We do- not think that this can be considered a warrant in a criminal prosecution. But even if i( should be so treated, it would be difficult to sustain it, for the .reason that it describes no offence. We are not aware of any rule of the common law, which punishes criminally the offence of malicious prosecution, and we have no statute which changes the common law in this respect.

Our attention was called at the argument, to section 8, of chapter 105, of the Bevised Statutes; but upon examination we find that it punishes the offence of causing a?persona<to be proceeded against, by any pi’ocess or proceeding in law or equity,, in the name of another without his consent, or when there is no such person known. x This statute can have no application to the case before us

We are aware that courts have gone far -to pro tect judicialofficers who appear to have honestly in tended to discharge their duty, but who have failed to comply with the rules of law in proceedings had before them. {

But it is essential that in cases of this nature, the affidavit should be at least colorable; that some approach should be made towards charging a criminal offence. In this case the attempt is not made apparently, to charge any criminal offence, but a civil injury, and one which could not be the foundation of any action which the justice could entertáin. We must therefore hold that the charge of the circuit judge was incorrect, and for this reason reverse the judgment. Judgment reversed.  