13 Ga. 260 | Ga. | 1853
delivering the opinion.
Holroyd, J. is reported to say, “ if the warrant issued without due authority on the part of the Magistrate, that would be trespass in the Magistrate; but it by no means follows that it is trespass in the party who, by laying the information before the Magistrate, is the cause or instrument on which the Magistrate acts in granting his warrant. He lays a statement before the Magistrate, of a suspicion of the goods being stolen, and that they were carried to the premises of the plaintiff, an d there concealed, and he prays a search warrant to examine the plaintiff’s premises. He does not, from anything that appears oh the face of the declaration pray this specific remedy by warrant for the apprehension of the plaintiff. Now, if the declaration had stated that the defendant had gone before the Magistrate and prayed for a search warrant on a specific charge of felony, then there might be some color for arguing that the declaration ought to have been in trespass.” 1 Dowling and Ryland, 97. 16 Eng. C. L. E. 19. In the case before us, the objection to the affi
So much being settled, several exceptions to the evidence are easily disposed of. Whatever facts and circumstances which tend to sustain his defence of probable cause for making
Under all these circumstances, Johnston made the'information upon which the search warrant for the papers before described, issued, and which gave rise to the case now under review. Now, it will be seen at a glance, that in showing probable cause, the first thing for the defendant to establish, was the identity of Riley with Williams, who had transferred the forged bonds to R. Johnston & Co. at Philadelphia. It was indeed, the fact upon which the defence rested, for the papers were delivered to a man calling himself Williams, and if Riley is identified as the man thus calling himself Williams, they were delivered to Riley, and proof of having delivered them to Riley, is a reasonable cause — a probable cause, for believing that they were still in his possession. To prove the identity, it was necessary to exhibit the transaction as it occurred in Philadelphia ; the acts, sayings and appearance of the man Williams. To this end the testimony of Drexel, Cromlein and Moss, was rightly admitted.
To this end also, was correctly admitted, that part of the evidence of Governor Towns, and the testimony of Smith and Patton, which detailed facts and circumstances in relation to Riley, which seemed to connect him with the transaction in Philadelphia. The testimony of Nisbet was legal, to prove the bonds forged, and when proven not to be genuine, they also were admissible, as part and parcel of the -illegal transac
At the same time, it is but just to say, that by unimpeached and unimpeachable witnesses, it was proven that on the very day when the bonds were transferred to Johnston in Philadelphia, Riley was in Georgia. The case really presents one of those rare anomalies which seems to confound the wisdom of Judges, and deny the potency of general laws, to insure the attainment of justice. Whilst this case must be determined by those rules of the Common Law, which govern any other case of malicious prosecution in causing a search warrant to be issued, (for the causing of this warrant to issue was not a necessary part of the duty of the defendant as agent, to secure the arrest of Riley as a fugitive from the justice of the State of Pennsylvania,) yet inasmuch as it is in fact connect
There are some exceptions to the evidence, which stand upon different grounds, and which I now proceed to notice. The testimony of Parker and Bloom was excepted to. They prove that some years ago, Riley was employed by them to grant reverted lands upon shares, and that a number of the grants taken out by him were pronounced spurious at the departments in Milledgeville. To these grants, the seal of the State, impressed on wax, was attached, which seal Col. Parker says was purloined. To the forged bonds, the seal of the State in wax, was also attached. This circumstance was calculated to show that Riley was the perpetrator of the fraud in Philadelphia, under the name of Williams, and on that account, the testimony in relation to the illegal grants was admissible.
Let the judgment be affirmed.