
    Isaac Edmondson v. Thomas Frean.
    
      Before Mr. Justice Earle, at Newberry, Spring Term, 1834.
    Where a warrant which was allcdgcd to be illegal, was pla> eedin the hands of an officer at the instance of the party against whom it issued in order that he might be arres, ted, and he was arrested,it seems that this is no imprisonment to sustain an ao
    A justice of the peace may issue a warrant for abusive words in relation lo his office and threats of per aonal injury to himself, require ing the party to give security for his good beha-viour.
    Trespass for assault and false imprisonment. The plaintiff with several others had been indicted for a riot and assault and battery by two women in the neighborhood, and the defendant who is a justice of the peace, had issued the warrant. The plaintiff and two others of those indicted, before their arrest, called at the defendants house and inquired if the warrant could be taken up and the prosecution dropped. The defendant replied it was not in his power to drop it, and if it were, it should not be dropped. The plaintiff then said to the defendant, “Why did you tell me a lie about it 1 You said you would not issue the warrant against me, and then did issue it; you are a mean man ; you are the cause of our being indicted. The old women said you went to them, and made them take out warrants, and if I ever catch you out of your plantation, and you give me a chance, I will give you a whipping.” Immediately after the plaintiff’s departure, the defendant issued the following warrant:
    State op South Cakolina, Newberry District.
    
      To any lawful Constable.
    Whereas, Isaac Edmundson hath this night come lo my house, and in a violent and threatening attitude, swore he would beat me when he got me from home, because I would not consent to make up with the rocking party; (of which he is one,) and whereas I am afraid the said Isaac Edmundson will do me some bodily hurt or injury, and wish security for the peaceable conduct of said Isaac. These are therefore to command you immediately on receipt hereof, to bring the said Isaac Ed-mundson before me or some other Justice of the peace, that he may find security for his appearance at the next Court of Common Pleas, and also for his peaceable conduct in the mean time towards all the said people of this State, and particularly, towards myself.
    Given under my hand and seal this 5th day of February, 1833.
    (Signed,) Thomas Fkean, j. ft. [u,]
    
      This warrant, the defendant, instead of placing in the hands of a constable and ordering it to bo executed, deposited in the hands of Wra. Gillam, abrother justice, without specific instructions, but as it was inferred, with the view of having it executed under his sanction. Gillam had other warrants against the plaintiff, who, on being informed of this fact, entered into recognizance in the other cases, but refused to do so on the defendant’s warrant, saying that Frean had acted illegally in issuing it, and he would be arrested in order to have it tried. Gillam then put the warrant, at the instance of the plaintiff, in the hands of the deputy sheriff, who was at hand, the arrest was instantly made, and "the security given.
    The presiding judge nonsuited the plaintiff for the reasons stated in his report:
    “In the first place there was no imprisonment, no delivering in custody against the will of the plaintiff. The arrest was by his own procurement; the short period of his being nominally in custody was voluntary, to enable him to sustain this action. “Where one, on being shewn a magistrate’s warrant, voluntarily and without compulsion attend the constable to the magistrate, it is no imprisonment to sustain an action.” 3 Stark. Ev. 1449, cites New Rep. 211. Here the case is stronger against the plaintiff, for he procured the warrant to be placed in the hands of the officer in order that he might be arrested ; volenti non fit injuria. Had it been otherwise, I conceive that the warrant was strictly legal, and consequently that the arrest and imprisonment were likewise legal. The objection insisted on most strongly, was that the magistrate could not be a judge in his own case; that the principle is universal and inflexible that no one can be. The mistake is in supposing this to have been the justice’s own case. It was the cause of the public peace. The justice had no private or individual interest in it. He could in no wise be benefited by the proceeding in a pecuniary point of view. The object was to ensure the preservation of the public peace, and to secure the protection of the law to himself as a citizen and a magistrate. It would be a bad case if his official character divested him of the power to enforce the laws in a case where their violation was threatened in his own person. It was his duty as a conservator of the peace to issue his warrant, requiring the plaintiff to give security for the peace, on good cause shewn in relation to another, or known to exist in relation to himself. Slanderous or abusive words spoken of a justice, in relation to the execution of his office, have ever been held good cause to require security for good behaviour. 2 Salk. 697; 3 Salk. 190 ; 1 Str. 421. Here then was not only gross abuse of the justice in relation to his official conduct, but a threat of actual personal violence on that account. I think there Can be no doubt that the justice had a right to issue his warrants without regard to the fact that no other justice was present, to require the plaintiff to find security for the peace, 2 Bay, 1 & 2; Bum’s Just. 580, 581. For abusive words while out of Court, relating to his judicial character, a justice may issue a warrant requiring the party to find surety to the peace and to be of good behavior. Richmond v. Dayton, 10 John. Rep. 393.”
    The plaintiff appealed and now moved to set aside the non-suit on the grounds:
    1. That there was sufficient evidence of an arrest to have sent the case to the jury.
    2. That the warrant being issued by a party complaining and without sufficient cause, was illegal and void, and the ar* rest consequently a trespass.
    
      Herndon, for the motion,
    contended that there was, technically, an arrest, 2 Saund. on Plead, and Ev. 193, marginal page, 658. The justice had no power to issue a warrant in his own case ; although not technically a party, he is in fact interested, and could lawfully compound the office and controul it on indictment; that it is contrary to the principles of the law that one should be a judge in his own case, or when a personal outrage has been inflicted on him. It cannot be pretended that this was for a contempt, for the justice was not, at the time of the supposed dffence, acting in his official character. The warrant is of an extraordinary character ; it is not founded on affidavit, charges no offence, and on the ground of fear of personal injury requires the plaintiff to be brought before the party in dread of the injury, to give security for the peace “towards all the good people of this State, and particularly towards myself” the defendant, who is himself to judge of the amount and sufficiency. And he insisted that if this proceeding were sanctioned, the liberty of the citizen would be placed at the mercy of the petty magistracy of the county; and he cited and commented on 2 Salk. 697-8; Grimke’s Justice 359, 462; Bum’s Justice, 360; Chitty Cr. Law, 17,33; 10 John. 393 ; 3 Cranch, 447 ; 2 M’C. 110.
    
      Fair, contra,
    insisted that there was no imprisonment against the plaintiff’s will, he was, at his own instance, taken before the justice on this warrant, and cannot by his otra act create a cause of action for himself. As to the second ground — the justice had a right to commit, and if he could commit he could issue his warrant. He may, whenever a fact occurs in his view, issue a warrant without affidavit; and as a conservator of the peace, he had a right to prevent a breach of the peace on his own person, as well as on that of others ; and he cited ID John. 393; 1 Bl. Com. 354; 11 St. Trials, 170 ; 5 John. 283.
   Harper, J.

We are inclined to agree with the presiding judge, with respect to both the grounds on which he rests his decision. As to the first, it may be remarked that it does not appear that the warrant in question ever would have been executed but for the procurement of the plaintiff’. The judge reports that the warrant was deposited with William Gillam, another justice, “without specific instructions, but doubtless with the view of having it executed under his sanction.” The ‘view’ with which defendant deposited the warrant must be merely matter of inference. It is not usual, so far as I know, for one justice to place his process in the hands of another in order to its being executed. Mr. Gillam was by no means bound to have this warrant executed, and it must be merely matter of surmise that he ever would have placed it in the officer’s hands, but at the plaintiff’s instance.

But on the second ground there can be no doubt. The argument and authorities relied on by the judge are entirely conclusive, and the cases go further than the present. The cases, Regina v. Langly, Salk. 697, and Richmond v. Dayton, 10 Johns. 393, were of abusive words merely spoken to the magistrate not then in Court or discharging any official duty, respecting his conduct in office, without any threat of personal violence. The argument that no man shall be a judge in his own cause would apply with much greater force when a Court punishes for a contempt committed in its presence. The justice would not properly have discharged his duty had he acted otherwise than he did. It is more than questionable whether the threatening to assault and beat the magistrate for his conduct in the discharge of his official duty, did not constitute an indictable offence.

The motion is dismissed.

Johnson and O’Neall, Js. concurred.  