2 Abb. Pr. 468 | N.Y. Sup. Ct. | 1856
The defendant having jurisdiction to issue warrants for the apprehension of persons, for violating the provisions of the “ act to prevent intemperance, pauperism, and crime,” could not be made liable in a civil action for deciding that a warrant should issue on insufficient evidence. In determining whether there was sufficient evidence to authorize the issuing of a warrant, he acted judicially; and he is not liable while thus acting even, if he erred in judgment. (Horton v. Auchmoody, 7 Wend., 200; Tompkins v. Sands, 8 Wend., 462, 19 Wend., 56, 1 Den., 537, 540, and 590; Payne v. Barnes, 5 Barb., 467, 3 Den., 117, 1 Kern., 573). But in making the warrant and delivering it to the officer he acted ministerially. (Rogers v. Mulliner, 6 Wend., 597 & 603, 8 Wend., 462; Van Rensselaer v. Whitbeck, 3 Seld., 521; Houghton v. Swarthout, 1 Den., 589.) “ Where ministerial duty is violated, the officer, although for most purposes, a judge, is still civilly liable for such misconduct.” (Wilson v. Mayor of N. Y., 1 Den., 599, Barb. Cr. Tr., 429 cb 430, and eases cited). *
The main question to be decided is whether the warrant is void on its face. If it is, then it will not protect the defendant, although he acted in good faith, and was authorized by the evidence before him, to issue a valid warrant. The defendant was bound to see that his process was valid on its face. Good faith does not excuse him for causing the plaintiff’s arrest on a process that charged him with no offence against the laws of his country. I do not think the cases in 6 Wend., 597, 7 Ib., 200, 8 Ib., 462, and 1 Den., 589, establish a contrary proposition. The officer who executes process must see that it is valid on its face, or he is liable for his acts under it. “ The law does not throw any protection round the person who attempts to arrest by an illegal warrant.” (Housin v. Barrow, 6 Durn. & E., 122.) “ The writ or warrant must not be deficient in the frame of it.” (Barb. Cr. Tr., 34 & 35, Ib., 82 & 83, Ib., 464 & 465). “ It must be lawful on the face of it.” (Sandford v. Nichols, 13 Mass. R., 285.) It would be unjust to hold the officer liable for executing an illegal warrant, and excuse the magistrate who issues it. The latter is presumed to be more capable of judging of the validity of the process he issues than the former who merely executes it.
It was necessary in this case that the offence charged on the plaintiff should be stated in the warrant, for it was triable before the defendant as a magistrate holding a court of special sessions. (Laws of 1855, 343, § 5). After a court of special sessions is organized for the trial of an offender, “ the charge made against the defendant as stated in the warrant of arrest, or commitment, shall be distinctly read to such defendant, who shall be required to plead thereto. (2 Rev. Stats., 712, § 7, Barb. Cr. Tr., 458).
The warrant in this case does not state the place, where the plaintiff sold intoxicating or alcoholic liquors, which it should have done. (Howell v. The People, 2 Hill, 281). A court of special sessions can only “ try charges for crimes arising within their respective counties.” (2 Rev. Stats., 711, § 1, Barb. Cr. Tr., 550). If the town where the offence arose had been stated it would have been sufficient. (Van Derwerker v. The People, 5 Wend., 530; Wood v. Randall, 5 Hill, 265, & 271). The place where the offence was committed was a material part of the accusation against the plaintiff. (2 Hill, 281, Payne v. Barnes, 5 Barb., 465, 5 Wend., 530; Bradstreet v. Ferguson, 23 Wend., 638; Blasdell v. Hewitt, 3 Cai. 138, Barb. Cr. Tr.,
The general allegation in the warrant that the plaintiff sold “ intoxicating or alcoholic liquors,” was insufficient. More certainty is required. (Blasdell v. Hewitt, 3 Cai. 138 ; Houghton, v. Strong, 1 Ib., 485; 1 Greenl. Ev., § 78, § 79). The warrant was very loosely drawn. It shows it was issued on the mere belief of the witnesses who were examined before the defendant; whereas they testified to facts showing a sale of liquor within the town of Lansing, contrary to the law of 1855, and the kind of liquor sold. It seems singular that a warrant could be drawn containing so few facts essential to its validity, when enough to make a valid one were proved before the magistrate who drew it. But so it is, and the defendant must be held liable for its defects. They are so glaring that it is void on its face; and it affords no protection to the defendant or the officer who executed it.
The defendant claims a new trial, on the ground that the plaintiff was not entitled to damages for the time spent and expenses incurred by him in procuring his discharge by the writ of habeas corpus. It is insisted that the habeas corpus was wholly unnecessary, for the reason that the plaintiff was allowed to go where he pleased without restraint, as soon as the issue was joined before the defendant on the 26th of July, and that he could not have been retaken and carried before the defendant on the adjourned day. This is not entirely certain. The defendant was accused of a misdemeanor. At common law a defendant might be tried for a misdemeanor, in his absence, after he had once appeared. (4 Black. Com., 375; The People v. Wilkes, 5 Bow. Pr. R., 107). The common
The defendant having acted in good faith, it is to be regretted that he did not act legally in all he did; and thus save himself from all liability. The action is technical, and is sustainable only by reason of mistakes in the form, or rather substance of the.warrant, issued by the defendant; but from such mistakes a cause of action has accrued to the plaintiff. The plaintiff is therefore entitled to judgment on the verdict.