Kennedy v. Barnett

The opinion of the court was delivered,

by Thompson, C. J.

— It is not to be doubted that the defendant, a justice of the peace, had jurisdiction of the cause of complaint against the plaintiff, viz., assault and battery, with intent to kill, and that the warrant he issued on that complaint was legal and regular, and that he had full power to hold to bail, or commit the prisoner, for want of bail, on return of the writ. He was, therefore, not answerable in trespass, even if he was in error in holding the defendant, and committing him, for want of bail. If he maliciously or wantonly injured the plaintiff, by excess in any way, in the execution of his power as a magistrate, case was the remedy, not trespass. In Sommer v. Wilt, 4 S. & R. 19, the doctrine of liability is thus stated: “ When the act is an immediate wrong against all form of law, trespass vi et armis is the proper action; but when the process is legal, but is used in an oppressive manner, trespass on the case.” So in Barnett v. Reed, 1 P. F. Smith 190, in the opinion of the court by Strong, J., it is said: “If the judgment against Reed, the plaintiff below, and the execution thereon, sued out against him by the defendant, were not void, case, rather than trespass, was manifestly the remedy.” In Kramer et al. v. Lott et al., 14 Wright 495, this distinction is maintained. The learned judge did not err, therefore, in holding that the action of trespass vi et armis did not, under the facts of the case, lie against the magistrate in this case. Nor did the evidence establish any act of trespass as magistrate, in which character he was sued, outside of the acts referred to above, and the charge of the court, that, “ upon the whole case, the plaintiff was not entitled to recover,” was entirely proper.

Judgment affirmed.