Livingston v. Burroughs

• Decision Date: 18 April 1876
• Court: Michigan Supreme Court
• Parties: Philip C. Livingston v. George H. Burroughs

33 Mich. 511

Philip C. Livingston v. George H. Burroughs

Supreme Court of Michigan

April 18, 1876

Submitted on Briefs January 19, 1876

Error to Wayne Circuit.

Judgment reversed, and a new trial ordered.

George H. Prentis, for plaintiff in error.

Moore & Moore, for defendant in error.

OPINION

Marston, J:

This was an action on the case for false imprisonment. Defendant in error made complaint before Caleb J. Barlow, a justice of the peace, upon which a warrant was issued, and plaintiff in error arrested thereon, at the city of Detroit, December 13 1873. The plaintiff testified on his own behalf that he was taken before the justice on the evening of the same day that he was arrested, and that he "stayed with the said justice from that time (Saturday, December 13, 1873) until Monday morning, December 15th, when the said defendant Burroughs appeared, and on his motion the examination was adjourned until December 30th, although the plaintiff was ready and asked that the examination should be had at that time, and said plaintiff was allowed to go upon his own recognizance from said 15th to said 30th day of December;" that on the 30th the parties again appeared and such proceedings were thereupon had that the plaintiff was discharged.

It seems to have been conceded on the trial in the court below, and also in this court, that neither the complaint made before the justice, nor the warrant issued thereon, alleged any offense known to the law, and that the arrest and imprisonment thereunder were consequently illegal.

The defendant was examined as a witness on his own behalf; and after testifying that he made the complaint and caused the warrant to be issued, he further testified that he did so "under the advice of one William E. Warner, who was not an attorney, but who sometimes gave advice to his neighbors in the country for pay; and also upon the statements of Myron Ellis and one or two others, that the said plaintiff Livingston, intended to cheat him, Burroughs, out of what he, Livingston, owed him." He also testified to statements made to him by the plaintiff, and also by several other parties, as to conveyances of certain lands for the purpose of cheating him. This evidence was all objected to, but upon what ground does not appear. After all the evidence in the case was introduced, and before the case was submitted to the jury, counsel for the plaintiff moved to strike out all this evidence on the ground that it was incompetent, irrelevant and immaterial. The motion was overruled, counsel excepted, and error is assigned thereon.

Counsel for defendant in error now insist that this evidence was introduced in mitigation of damages, for the purpose of showing that defendant had reasonable or probable cause for making the complaint, and that he was not actuated by malice.

Evidence had been introduced on the part of the plaintiff tending to show that Burroughs was induced to cause plaintiff's arrest at the instance of one Ellis, who wanted to get plaintiff out of the way, so that he could not be a witness in a certain cause then pending at the time of his arrest. Defendant had undoubtedly the right to prove by any...