22 Kan. 101 | Kan. | 1879
The opinion of the court was delivered by
This was. an action for false imprisonment, malicious prosecution, and libel. Each cause of action was set forth in the petition in a separate count, and all were founded upon a criminal prosecution commenced before a justice of the peace by the defendant as complainant against the plaintiff, for an alleged larceny of a steer belonging to the defendant. The defendant answered, setting up two defenses: First, a general denial; second, new matter purporting to constitute a defense to the whole of the plaintiff’s petition, and to each count thereof. The plaintiff demurred to the second defense of the answer, on the ground that the facts set forth therein were not sufficient in law to constitute any defense to the plaintiff’s action. The court overruled this demurrer, and of this ruling the plaintiff now complains. ¥e think the court below erred; for while the second defense of the defendant’s answer professes to be á full and complete defense to the whole of the .plaintiff’s petition, yet it is certainly no ■defense to the third count thereof, which sets up a cause of action for libel. But the main question discussed by counsel — the question upon which the defendant at least seems to think the decision of the case in this court must turn, and therefore the question to which we shall give our especial attention, and really the only one we shall decide in the case — is the question whether the defendant had a right when he commenced said criminal prosecution to rely upon the opinion, decision and advice given him by the justice of the peace before whom such prosecution was commenced. It will be remembered that all of the ‘plaintiff’s supposed causes of
We do not think that the opinion, decision or advice given-by the justice to the defendant is a good defense to this action, nor that it is a good defense even to the second count of the petition, which sets forth a cause of action for malicious prosecution. Straus v. Young, 36 Md. 247, 256; Olmstead v. Partridge, 16 Gray (Mass.), 381, 382. See also, in this connection, the following authorities: Murphy v. Larson, 77 Ill. 172; Beal v. Robeson, 8 Ired. (N. C.) 276; Stanton v. Hart, 27 Mich. 539; Burgett v. Burgett, 43 Ind. 78; Wilkenson v. Arnold, 11 Ind. 45; White v. Tucker, 16 Ohio St. 468.
It is not claimed that the justice was a lawyer, or that he had any special education in the laws of the country; hence his opinion or his advice upon this subject is not entitled in-law to any greater consideration than that of the defendant himself, or that of any other person. Besides, a justice of the peace is not the proper officer to give advice concerning
Of course, whatever was said or done by the justice, or by the defendant, or by his herdsman, at the time said affidavit was made and warrant issued, would be competent evidence on the trial of this case as a part of the res gestee. Eor what was then said and done is a part of the transactions out of which these supposed causes of action arose, and will tend to explain and qualify the same. The things then said and done may in fact show, when fully proved to the jury, that the plaintiff has no cause of action against the defendant. But what we wish here to say is, that the advice given by the justice, or his opinion or decision, cannot constitute any defense to any action which the plaintiff might have against the defendant, except for such advice, opinion or decision.
The judgment of the court below will be reversed, and cause remanded for further proceedings.