
    Marshall Shaw versus Solomon Reed.
    One who sues an action before a justice of the peace, on which the defendant is arrested, is not liable in trespass for false imprisonment, because, from the absence of the justice at the return day, the action is not entered.
    Trespass for an assault and battery, and false imprisonment. Trial on the general issue in the Common Pleas. The defendant brought an action against the plaintiff, for a certain demand of three dollars, before a justice of the peace, and caused him to be arrested and held to bail. The officer made due return of the writ, and, at the day and hour appointed therein, the parties appeared at the dwelling-house of the justice, who was absent from home, although he had been notified of the action. Having waited more than an hour from the time set in the writ, and the justice not returning, the defendant * caused the plaintiff" to be [*451 ] again arrested, and held to bail for the same cause of action, upon another writ, returnable at a then future day before the same justice; upon which last writ he obtained judgment.
    •Upon these facts, the plaintiff contended at the trial, that the first writ was a void process, never having been entered or made matter of record with the justice. But the Court below were of a contrary opinion, and instructed the jury accordingly. '
    
      Beal, for the plaintiff.
    
      Wood, for the defendant.
   Per Curiam.

Trespass does not lie in this case, for the writ being good at the time it was served, the arrest was not tortious. The justice had jurisdiction of the cause, and it was only by reason of an event subsequent to the service of the writ, that it became inoperative. The plaintiff’s remedy is by an action of the case against the defendant, if the justice’s absence arose from his negligence ; or against the justice, if he was notified of the process, and voluntarily or negligently absented himself.  