Booth v. Kurrus

• Decision Date: 08 June 1893
• Citation: 55 N.J.L. 370,26 A. 1013
• Parties: BOOTH v. KURRUS et al.
• Court: New Jersey Supreme Court

26 A. 1013

55 N.J.L. 370

BOOTH

v. KURRUS et al.

Supreme Court of New Jersey.

June 8, 1893.

(Syllabus by the Court.)

Action by Joseph A. Booth against Adolph Kurrus and others. Heard on demurrer to declaration.

Argued February term, 1893, before BEASLEY, C. J., and REED and MAG IE, JJ.

Bedle, Muirhead & Mngie, for plaintiff.

H. S. Terhune and Hawkins & Durand, for defendants.

BEASLEY, C. J. This is an action by Booth against Brinley, a justice of the peace, and Kurrus, prosecutor, alleging the arrest and false imprisonment of the plaintiff by virtue of a warrant issued by the justice on the complaint of the other defendant. The declaration is in l he usual form in actions for false imprisonment, and to it the defendant Brinley put in a special plea, to the effect that he was a justice of the peace, and that, on the day named, Kurrus made a complaint, under oath, before him, as such justice, setting forth that on, etc., the plaintiff, in the language of the pleader, "did, willfully, maliciously, and with intent to injure the said defendant Adolph Kurrus, erect a board fence adjoining the said defendant Adolph Kurrus' property about twenty feet high, and that said fence was a nuisance, and that said fence was erected in a frail manner, and endangered the life of the defendant Adolph Kurrus and other persons going to and from said premises," etc. The plea then averred that thereupon a warrant was issued by him, under which the plaintiff was arrested, etc., and which are the supposed trespasses complained of. To this plea a demurrer has been interposed, raising the first of the issues to be decided.

The argument in support of this demurrer is, in effect, that the justice was without jurisdiction in the affair in question, inasmuch as the affidavit on which be founded his judicial action "did not disclose any crime or indictable offense on the part of Booth." It is urged that a private, and not a public, nuisance was thus exhibited, and that, therefore, the issuance of the warrant was unjustifiable. Granting this position, the argument is without any legal force. It is obvious that the principle on which it can alone be rested is that the justice is liable to a suit in every case in which he mistakes the law with regard to his duty, either in granting or refusing a warrant when a criminal complaint is before him. If this justice be suable in this instance, it is not easy to imagine any legal error committed by him in a proceeding of this character...