Riley v. Johnston

• Court: Georgia Supreme Court
• Writing for the Court: Nisbet, J
• Citation: Riley v. Johnston, 13 Ga. 260 (Ga. 1853)
• Decision Date: 28 February 1853
• Docket Number: No. 33,33
• Parties: Spencer Riley, plaintiff in error. vs. Robert Johnston, defendant in error.

13 Ga. 260

Spencer Riley, plaintiff in error. vs. Robert Johnston, defendant in error.

No. 33

Supreme Court of the State of Georgia

FEBRUARY TERM, 1853.

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Trespass, in Bibb Superior Court. Tried before Judge Powers. ——Term, 1852.

The facts of this case are sufficiently embodied in the decision of the Court.

Stubbs & Hill, and Rutherford, for plaintiff in error.

Hardeman, and Poe, Nisbet & Poe, for defendant in error.

By the Court.—Nisbet, J., delivering the opinion.

I apprehend that most of the exceptions taken in this bill may be disposed of in the consideration of that one which is founded on the charge of the Court. The charge was, "that the search warrant issued by said Brown, Justice, was a valid and legal warrant, and the affidavit made for the procurement of the same by the defendant, was valid and sufficient, and it was for the plaintiff to satisfy the Jury by evidence that said warrant was sued out without reasonable or probable cause; and if it was so sued out, then they must find for the plaintiff something. If otherwise, then they must find for the defendant." Whether the Court was right or not, in ruling that the affidavit and warrant were valid and sufficient, is immaterial; for whether they were valid or void upon their face, in either event, the rule laid down by the Court as to the necessity of the plaintiff below showing the want of probable cause, is the rule applicable to this case. The first count is plainly in case, and the others bear a mixed character of trespass and case. It was treated as an action on the case by the Court below, and so far as I can learn by the counsel also; for the record furnishes no evidence that any point was made before the Court involving the character of the action. The Court made no decision on its character, and we are not called upon to make any. It is true that the counsel have made here such a question, (as we shall see), but we treat the action as we find it was considered below—that is, as an action in case for the recovery of damages for maliciously and without probable cause, causing a search warrant to issue against the plaintiff. The argument of counsel for the plaintiff in error, is that his action is trespass, and being so, the ruling of the Court requiring the plaintiff below to prove probable cause, was erroneous. In an action of trespass for causing a search warrant to issue upon an insufficient affidavit, say the counsel, the plaintiff is not bound to show the absence of probable cause, and the defendant cannot defend by proof of probable cause and the absence of malice. Hence they find it necessary tocontrovert the ruling of the Court that the affidavit and warrant were sufficient, and taking that to be error, and assuming that their action is trespass, they are in position to assail the decision of the Court that plaintiff below must prove the absence of probable cause. Now, as before stated, we are bound to consider this action as in case; for the questions made for our review, seem to have grown out of a concession on all hands on the trial, that it was case. We know nothing of the cause, except what we learn through the record. The legal truth, however, of the whole matter is, that if the Court was right in holding this to be a regular process, then case was the proper remedy, and his farther ruling that want of probable cause must be shown, was right. The rule is, that when an injury to a person is effected by regular process of a Court of competent jurisdiction, case is the proper remedy, and trespass is not sustainable, although the process may have been maliciously adopted. Belk vs. Broadbent et ux. 3. T. R 185. Boot vs. Cooper; 1 T. R. 535. Cooper et al. vs. Booths, 3 Esp. R. 135. Waltern vs. Freeman, Hob. 266. Gofford vs. Woodgate, 11 East. 297; 1 Camp. 285; 1 Chitty\'s Plead. 136; 2 Idem, 291, note M.

If the proceedings complained of are irregular, then the remedy against the Magistrate issuing them, is trespass. Morgan vs. Hughes, 2 T. R. 225. 1 Chitty's Plead. 139, 140. But the remedy against the person who procures, upon insufficient information, a process to issue to search the house of another, is case. Whilst the remedy against the Magistrate in such a case is trespass, that against the informer is case. This question came up before the Court of King's Bench, in the case of Elzee vs. Smith, under a state of facts almost identical with the state of facts in this case. The plaintiff brought case against one who had, upon an affidavit, caused a warrant to issue to search the house of the plaintiff. The defendant swore "that he had reason to suspect that several trees or parts of trees, had been stolen from the King's forest of Hainault, and that they were carried to the premises of John Smith, carpenter, of Chigwell Row, and were thereconcealed." In error before the King\'s Bench, one of the assignments was "that the complaint alleged in the declaration, stated a mere suspicion of felony and not a positive oath of an actual felony committed, and therefore the Justice was not warranted in issuing the warrant mentioned in said declaration, and if not, then trespass was the proper form of action, if any was sustainable against the defendant." Upon the argument, it was insisted that the Magistrate had no authority to issue the warrant upon the complaint, because the complainant had not sworn positively that his trees had been stolen, and that he and also the complainant was liable only in trespass. The Court held that a positive oath that a felony has been committed, is not necessary to justify the Magistrate in granting his warrant to search the premises and apprehend the person of a party suspected of felony, and although it may be trespass in a Magistrate to issue an illegal warrant, yet it is ease in the person who causes and procures such warrant to issue, if it is done maliciously or without reasonable or probable cause.

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, and there concealed, and he prays a search warrant to examine the plaintiff's premises. He does not, from anything that appears on 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. R. 19. In the ease before us, the objection to the affi-davit is that Mr. Johnston, the defendant in the suit, does not swear that the goods were stolen by Riley, the plaintiff. He only swears that he has reason to believe and does verily believe that Spencer Riley has in his possession the articles which he decribes. He does not pray a warrant of arty kind. The warrant issued was to search Riley\'s house, and if any of the articles were found, to bring them and Riley before the Magistrate to be dealt with according to law. The case of Elzee and Smith, goes farther than this, and states the complainant\'s suspicion that the goods had been stolen from the King\'s forest and concealed on the premises of the plaintiff. Here the charge against Riley, is that the defendant has reason to believe and does believe that the goods are in his possession. The defendant is farther from making a specific charge of a felony in this case than was the defendant in that. Which specific charge Mr, J. Holroyd intimates, might make him liable in trespass. In that a warrant to search was prayed; in this no warrant of any kind is prayed. The decision goes upon the ground that a Magistrate issuing a warrant illegally, does thereby do an injury to the person charged, immediately and directly. Whereas the injury done by the person who makes the complaint and causes the process to issue, is consequential upon his complaint. Upon principle, and authority then, it seems to me that the defendant, Johnston, was liable only in case. If it be conceded that the process was illegal, the plaintiff can take nothing by the fact, because in that event Johnston would not be liable in trespass, but only in case. And in case he is sued. So in any event the ruling of the Court that plaintiff must show probable cause was right. In actions on the case for malicious prosecutions, it is not doubted but that plaintiff must show malice and want of probable cause, and that the defendant may protect himself by pleading and proving the absence of malice, and the existence of probable cause.

So much being settled, several exceptions to the evidence are easily disposed of. Whatever facts and circumstances which tend to sustain his defense of probable cause for makingthe complaint upon which the warrant issued, the defendant was entitled to prove. To be yet more specific—whatever facts tended to show that he had probable cause to believe that the letter written by Mr. Crawford, or his professional card, or the receipt of his house given for the bonds, or either of these things, were in possession of Riley, were proveable by the defendant. The defendant was a broker in the city of Philadelphia, and a man representing himself as Robert J. Williams, after for several days attempting elsewhere to raise money upon bonds of the State of Georgia, to the amount of $65,000, transferred them to the house of which he was a member, as security for an advance of $6,000. In the course of this negotiation, the business card of the house was handed to Robert J. Williams, also a...