
    STHRESHLEY & WOOLDRIDGE vs. FISHER.
    A commitment to jail td be tried by a called court, upon a charge or an intention to commit felony } is wholly illegal.
    A juftice of t]»e peace naa-king fuch illegal commitment, is liable to the injured party.
    
      STHRESHLEY arrestedFisher;andtook him before Wooldridge, á justice of the peace for Woodford county, and charged him with an intention to commit a felony. After hearing which charge, Wooldridge committed Fisher to jail, to be tried by an examining court, for an intention to commit a felony- Fisher was detained in jail some days ; and after procuring his discharge, brought an action of trespass, assault and batter}', and false imprisonment, against both Sthreshley and Wooldridge: they jointly put in the plea of not guilty.
    
      April 20th.
    
    On the trial, a motion was made to exclude the evidence as to the imprisonment, under the commitment ; alleging that they were not answerable for it. This motion was overruled, and an exception taken thereto.
    Sthreshley also moved for leave to introduce his co-defendant, Wooldridge, as a witness : this was likewise overruled .by-the court ; and an exception taken to this decision also.
    The jury found a verdict for the plaintiff, for about 477. damages ; and judgment was thereupon entered against the defendants. To reverse this judgment, a writ of error was prosecuted.
    
      Clay, for the plaintiffs in error.
    — These exceptions bring the question before the court, whether Wooldridge was liable to this action ; for if he was not liable, the inferior court erred. I contend that Wooldridge was not liable to an action of false imprisonment. He had jurisdiction of the offence with which Fisher was charged ; but I acknowledge he could not commit him to jail bylaw, tobe tried by an examining court. If, however, the conduct of Fisher was such as to amount to a misdemeanor, he might have committed him to jail, unless he had given bail to appear at the next circuit court, to answer for that misdemeanor. But whether his conduct was a misdemeanor or not, it is clear that the magistrate could have bound him to his good beha-viour ; and on his failing to find security therefor, might have legally committed him to jail. The magistrate therefore had clearly jurisdiction of the offence with which Fisher was charged.
    Now I contend that if the magistrate has jurisdiction of the offence, no action of false imprisonment will lie against either of the parties. If the man committed to jail is injured, he must bring his action for a malicious prosecution, not an action in this form. There is, however, no pretence that the magistrate acted in this in-stance, from improper motives. It was therefore the case of an erroneous proceeding of a magistrate, in a case completely within his judicial functions ; and no judicial officer, how low hisstation may be, is amenable, while acting in the sphere of his judicial powers. For the correctness of this position, I will refer the court to Cro. Eliz. 80, 397 — 2 Mod. 218 — 12 Mod. 388s 391— 1 Ed. Raym. 465 — -2 ibid 767 — Salk 397 — -and 1 Mod. 184. In the latter of which cases, it is said, no action will lie for an erroneous commitment, any more than for an erroneous judgment.
    If Wooldridge was not liable for what he did, the court ought to have permitted him to have given evidence for Sthreshley ; and having refused so to do, their judgment must be reversed.
    Talbot, for the defendant in error.
    — There is notrror assigned in this cause, which will authorise the question, to be now made, whether an action for a malicious prosecution should not have been brought, in preference of an action in the present form. I shall therefore confine my remarks to the question, is the magistrate liable ?
    This is a ease depending upon authority, not upon general reasoning. If the latter were to settle it, much might be said on either side. I contend that this action will lie, where the proceedings are regular, but the defendants in the suit have been actuated by malicious motives; or where the magistrate or judge commits by an illegal warrant. If the bare having jurisdiction over this man, and an offence he has committed, would screen the ofhter from responsibility, it would exonerate a magistrate, who, for a contempt offered to him, should commit a man to jail for felony : a case too monstrous to admit of doubt.
    The doctrine which I contend for, is to be found in Esp. Ni. Pri. 330, 331, 332 — Loft’s Rep. 241, 243 — 1 Stra. 710 — 3 Haw. Pleas of the Crown, 84 — and 1 Bur. 602; In the latter, the magistrates had jurisdiction, but committed by an illegal warrant. So in this case, the warrant is illegal.
    The cases cited by Mr, Clay, are believed to be cases where the judges have acted in court; and not where a magistrate, or an officer of the like kind, has acted improperly out of court.
    If, however, upon any principle, the jury might have found Wooldridge guilty, the court should not. have permitted him, to be uspd as a,witness. The modern practice is, tq send.the jury out, and let them find first as?to that defendant; and if hf is discharged, then to. permit him to come in as a witness.
    Clay, in reply,
    — The practice of sending out the jury ⅛ find as to one defendant first, has never been used in this country, and certainly cannot supersede the old practice j especially, if the defendant, Wooldridge, is, as I contend, not liable on principles of law,
    April 21th.
    I will admit, that where the party is not liable at all to be confined to jail for the act, as executors, for not paying the debt of their testator, the action of false imprisonment will lie ; but it will not, where it is owing to a particular privilege, as that of a witness attending court. Here, if there is any exemption claimed, from, imprisonment, it is an exemption from commitment, by this form of proceeding ; not on the man’s general standing. In the case from 1 Bur. 610, it will be found, that it turned on the particular statutes affecting the case ; not on general principles.
    Mr. Talbot’s distinction between a court and a single magistrate — that the former are not liable to an action for their errors, while the latter is; must be without foundation. Surely there is more excuse for a magistrate, for an error by him committed, in the country, than for a court, who are aided by the arguments of counsel, mutual consultations and deliberations. The distinction is not warranted by law or reason.
   Edwards, Ch. J.

delivered the of ' court: — If both the defendants were liable, the coned, as well as the original imprisonment, with all the equences of it, was proper evidence to go to the ju-md this leads to the inquiry, as to the liability of dridge, the magistrate ; of which, a majority of irt have no doubt ; as a commitment to jail, to tnec. ^ ⅛" a called court, upon a charge of intention to be tn felony, is wholly illegal, unprecedented, and £°|¾⅞> ''' ^ ’ as weH bY the spirit of our constitution, as Pr which provide individual redress for all unjust , Vg. s of personal liberty and security. yicnajouj. tbv , tint com rv; ■ Vicol the cot  