Landt v. Hilts , 19 Barb. 283 ( 1855 )

By the Court,

Johnson, P. J.

I am clearly of opinion that the plaintiff should have been nonsuited, upon the trial. The imprisonment complained of was upon an order of the countj judg.’.of Herkimer county, requiring the sheriff to arrest the plaintiff and hold him to bail. The order was made upon application and affidavit, presented to the judge in a case in which he had jurisdiction to grant an order of that description.

It is contended by the plaintiff’s counsel that the affidavit presented to the county judge showed no cause whatever for granting the order of arrest. It may be conceded that it was not sufficient to authorize the granting of the order; but that it did present a state of facts which called upon the officer to pass judicially upon the question, and to determine whether a case for an order was made out or not, cannot, I think, be questioned. It presents, to say the least, a colorable case, and that is enough to protect the officer who issues it. Granting as the plaintiff’s counsel claims, that the affidavit only makes out a cáse of a breach of contract against the plaintiff, who was the defendant in the suit in which the order was made, enough is set forth to call upon the officer to ‘determine whether a case of tort, or only a breach of contract, was shown by the affidavit. The agreement that the owner of the farm should hold the cheese made upon it, as security for the rent, and that the plaintiff should not sell or otherwise dispose of it till the rent should he paid, the removal of it without the consent of the landlord, and without the payment of the rent, and the abandonment of the premises by the plaintiff and the inability of the landlord’s agent to find the property, or the place to which the plaintiff had removed, are all positively sworn to. It makes no difference that the judge decided wrong in holding that the removal of the property under such circumstances was tortious. If he was called upon to make a determination upon the question, that is enough. The decision and the order protect the party applying for it, and the attorney and all persons acting in obedience to the order, as well as the officer who makes it, in all cases where the officer has jurisdiction of the subject matter and it becomes his duty to act judicially. This was held in the case of Stanton v. Schell, (3 Sandf. S. C. R. 328.) That was a case of imprisonment by virtue of a warrant of arrest under the non-imprisonment act, and the action was brought against the party applying for .the warrant. This court held the same doctrine several terms since, in the case of Pardee v. Pardee, not reported. That was a case where the plaintiff in the action had been imprisoned in proceedings under the non-imprisonment act. The proceedings were before the recorder of the city of Rochester, and the party was adjudged guilty, and it became the duty of the recorder to commit him to jail, unless he should tender the bond required by the act. He did tender a bond which was probably sufficient, but the recorder held that it was not a full compliance with the requirements of the act, and committed him to jail. The action was brought against the creditor, who instituted and carried on the proceedings. We held that the action could not be maintained, as it was the duty of the •recorder to pass upon the question of the sufficiency of the bond, and that his decision, though erroneous, would protect the party.

The plaintiff’s counsel contends that as the order in this case was set aside before this action was brought, it cannot operate as a protection to the parties who were' engaged in procuring and enforcing it against the plaintiff, and that they are trespassers by relation. The case of Chapman v. Dyett, (11 Wend. 31,) is relied upon to sustain this position. But there is a manifest distinction between the two cases. That was the case of a ca. sa. irregularly issued in a case where bail had been put in and no fi. fa. had been previously issued. The ca. sa. had been set aside on motion, and the court held that it afforded no protection to the parties at whose instance it had been issued, in the action for the wrongful imprisonment. But there no judicial determination of the right to issue the ca. sa. had been had.' It was issued upon the mere volition of the plaintiff in the judgment, or. his attorney. It was, so far as the rights of the parties were involved, the act -of the party for whose benefit the writ was issued. , Hot so here. The order of arrest is the act of the officer of the court, and the right is judicially determined before it is issued, on application made and proofs. submitted. The order afterwards vacating this order of arrest was only correcting the judicial error of the officer by whom such order was issued. It is clear, I think, that the doctrine of trespass by relation could no more apply to such a case than it could to the case of a judgment reversed upon appeal, after it had been collected.

[Monroe General Term, March 5, 1855.

Johnson, Welles and T. R. Strong, Justices.]

The doctrine that the judicial officer is protected whenever he has jurisdiction and enough is shown to call upon him for a desision, even though he errs grossly, and even intentionally, has long been firmly established. (Weaver v. Devendorf, 3 Denio, 117. Harman v. Brotherson, 1 Id. 537. Easton v. Calendar, 11 Wend. 90. Horton v. Auchmoody, 7 Id. 200. Cunningham v. Bucklin, 8 Cowen, 178.) Upon the same principles of public policy, parties.who in good faith institute the proceeding and act under and in accordance with, the judicial determination, should be protected from accountability as trespassers whenever the officer is entitled to protection.

A new trial must be granted, with costs to abide the event.