
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1808.
    Perrin v. Calhoun.
    • A justice of peace, from a mistaken notion of duty, Wrote his ríame on the back of a warrant. issued by a justice of peace in Georgia, against a person complained of as a felon; and an arrest was made in this State under the pretended warrant of the indorsing magistrate. In this case, it was adjudged that the indorsing magistrate was to be considered in the light of a principal trespasser, though he might think he' was acting legally.
    Motion for a new trial. The action was for false imprisonment, tried in Abbeville district, before Brevard, J. The evidence given at the trial was as follows. One witness pfoved that the defendant, in a conversation with him, mentioned that certain men, from the State of Georgia, had applied to him, (the defendant) as a jus. tite of peace in Abbeville district, to bach a warrant which they had against the plaintiff, to apprehend him for a crime committed in Georgia ; and expressed a wish that the application had been made to some other magistrate, as there was some misunderstanding between the plaintiff and himself. Another witness said, that the plaintiff was brought to his house a prisoner by certain persons from Georgia, who were conducting the plaintiff from Abbeville toWards'Georgia; and that they shewed a-warrant, which purported to be issued in Georgia by a justice of peace, there to apprehend ‘the plaintiff for horse stealing; which warrant had the following words mdorsed thereon in the handwriting of the defendant, viz.: “ State of South Carolina. Abbeville district. Ezekiel Calhoun, J. P.” It was objected, on the part of the defendant, that parol evidence was not admissible to prove the contents of this warrant and indorsement, but that the writing ought to be produced, or proof given, that it could not be obtained. Whereupon another witness was examined, who proved that he went into Georgia, and applied to the court, to which the plaintiff was taken on the charge aforesaid, while the court was sitting, and applied for the warrant, which could not be found, although careful and diligent search was made for it, under the direction of the court. Another witness said, that the defendant acknowledged to him that he had backed the warrant. The judge, in charging the jury, stated to them two questions, for their consideration. 1. Whether, in fact, the defendant did back the warrant; and 2. Whether, if he did so, the act was done to countenance, or sanction, the apprehension and imprisonment of the plaintiff. That if the defendant did not indorse the warrent for the purpose of giving a legal color to the trespass committed on the plaintiff, the defendant was not liable. Hut if the defendant had indorsed the warrant, for the purpose of giving such color to the business, then it would become necessary to inquire into, and consider the motives of the defendant in doing the act, whether he was influenced by malice or other impure motive, or through mistake, believing he was authorized, as a magistrate, to indorse the -warrant, which would, under the circumstances of the case, authorize the arresting of the plaintiff, and the carrying him into Georgia for trial. It appeared, in evidence, that the practice of backing warrants in this way, had been common in that part of the country for a long time past. The judge said that the practice was unlawful, and ought to be discouraged ; but that if the de» ^en(^an*; had been misled by it, and had been actuated not by ill de-slgnJ but by a mistaken sense of duty, it would go far in mitigation of damages. On the contrary, if the jury believed the defendant acte(j from oppressive and malicious motives, they ought to give a verdict for high and exemplary damages. But if they believed, as seemed most probable, that the act was done heedlessly, and under a belief that it was lawful, the damages ought to be very low, even though the defendant might know the use intended to be made of the indorsement, if he thought the use intended to be made of it was not unlawful. And that if the jury should believe the defend, ant had no intention in backing the warrant, to give any color to' the arrest and imprisonment of the plaintiff, or that he did not indorse the warrant, then they ought to find for the defendant. Ver. diet for the plaintiff for small damages, $25.
    Bowie, for the defendant,
    contended on the motion for a new trial, that the parol evidence given of the warrant, and indorsement,, was not admissible ; and, if it was, yet the act of indorsement, under the circumstances of the case, did not subject the defendant to damages, as a principal trespasser.
    Yancey, contra,
    
    quoted Runn. 472, and answered the argument of Bowie.
   Waties, J.,

declared the opinion of the'court instanter, all the judges present, except Grimke, J. That the best evidence ap. peared to have been given, which the nature of the case admitted of; and that the question of law, arising on the facts given in evidence, had been properly left to the jury ; and although the judge in his report, had stated it as his opinion, that the facts given in evi« dence did not seem to warrant the jury in believing that the defendant had any ill motive in what he had done ; yet, as it might have happened, that in consequence of this officious act of the de. fendant, the plaintiff might have suffered the illegal capture and-imprisonment complained of, there was sufficient evidence to warrant the verdict against the defendant, as a principal in the trespass* aiding, and encouraging.

Motion discharged.  