Barker v. Stetson

73 Mass. 53

Opinion

Metcalf, J

*

The defendants made a complaint to a magistrate, under St. 1852, c. 322, § 14, and therein prayed him to issue process for the seizure of the plaintiff’s liquors; and they did nothing more. The magistrate issued the process, and an offi cer served it according to its precept. The section of the statute, under which this process was issued, being unconstitutional, the magistrate had no jurisdiction; the process was void; and the. service of it was a trespass upon the plaintiff, for which the magistrate and the officer are answerable. Fisher v. McGirr, 1 Gray, 1. Kelly v. Bemis, 4 Gray, 83. Are the defendants also answerable, in the mrm of action which the plaintiff has adopted ? It is quite clear that they are not. The authorities are conclusive that, when a person does no more than to prefer a complaint to a magistrate, he is not liable in trespass for the acts done under the warrant which the magistrate thereupon issues, even though the magistrate has no jurisdiction. If the complaint is malicious, and without probable cause, the complainant may be answerable in another form of action. Brown v. Chapman, 6 C. B. 365. Carratt v. Morley, 1 Gale & Dav. 275, and 1 Ad. & El. N. R. 18. Cooper v. Harding, 7 Ad. & El. N. R. 928. West v. Smallwood, 3 M. & W. 418, and Horn & Hurlst. 117. Barber v. Rollinson, 1 Cr. & M. 330, and 3 Tyrwh. 266. See also a recognition of this doctrine by Lord Campbell, in Chivers v. Savage, 5 El. & Bl. 701. Exceptions overruled.

The remainder of the cases for this term (except when otherwise stated) were argued at Boston in January 1857, before all the judges except the chief justice.