'The opinion of the court Avas delivered by
Brewer; J.:
This Avas an action of false imprisonment. On the 4th of January 1871 Gillett sued Thiebold before a justice of the .peace. He filed Avith the justice the folloiving .affidavit:
[Title, and Venue.] “Henry W. Gillett makes oath that the claim in this action is on account for liquors sold for $137.25; and he also makes oath that the claim is just, and .that Henry W. Gillett, the plaintiff, ought to recover the [431]*431amount of $137.25; lie also makes oath that the said Jack Thiebold, the defendant, has disposed of his property with intent to defraud his creditors. He is justified in the belief •of the above facts from the following considerations: that the defendant, living at Lawrence, lately sold all his property known to affiant, and converted the same into money, and has left Lawrence, his late place of business and residence, .and made no provision for the payment of his debts.
“Henry W. Gillett.
•“Sworn to before me, and subscribed in my presence, this 4th day of January, 1871. Richard R. Rees, J. P
Upon that affidavit an order of arrest was issued, and Thiebold brought before the justice. A trial was immediately had, judgment entered in favor of Gillett for $137.25, .and an execution, with an order of arrest, issued by the justice. Nothing being paid on the execution, and no property found, Thiebold ivas committed to jail whence he was discharged on habeas corpus, after two or three days, by the judge of the district court of the first judicial district. 'Thereupon he brought this action for false imprisonment.
1. Affidavit for iest. ‘ 2. Facts must be moved. Two important cpiestions are presented. The first is this: Was the affidavit sufficient to justify the issue of the order of arrest? An affidavit for an order of attachment is sufficient if it avers positively the existence of any of the grounds named in the statute. Reyburn v. Bassett, 2 Kas., 227. But it is otherwise in an affidavit for an order of arrest. There the statute provides that “the affidavit shall also contain a statement of the facts claimed to justify the belief in the existence” of the grounds .set forth for the arrest. Justice’s act, Gen. Stat., 779, §18. This portion of the statute is of equal force with the rest. Respect must be paid to its' requirements, or the proceedings will not stand. Nor is it a meaningless provision. It is not .satisfied by a statement of any facts. There must be an allegation of the existence of such facts as, uncontradicted or unexplained, show that the charge of fraud made in the affidavit is true. A fact or facts which simply raise a suspicion of guilt, or point to the pos[432]*432sibility of fraud, are insufficient. A chain of circumstances which is consistent with a fraudulent purpose, will not be enough. The facts stated must establish the fraud. Nothing less than this will give reasonable effect to the requirement of the statute. Frost v. Willard, 9 Barb., 440; Ex parte Smith, 16 Ill., 348; Gorton v. Frizzell, 20 Ill., 291; Spice v. Steinrick, 14 Ohio St., 213, and cases there cited. Tried by this rule, and the affidavit is obviously insufficient. The facts stated in the affidavit do not show a fraudulent intent. This is too patent to need discussion.
3. justice of peace; when lie acts judicially, A second and graver question is this: Was the act of the justice in issuing the order of arrest a judicial act, and having been performed by one having jurisdiction of the subject-matter, and the persons, conclusive on the parties, and not subject to attack collaterally? If no facts were no t • i ^ stated m the anxdavxt, the case would be free from difficulty; for where the statute prescribes certain conditions for the exercise of powers by an inferior tribunal, a disregard of those conditions renders the attempted exercise of those powers void. The trouble here lies in this, that an attexnpt is made to follow the statute by alleging certain facts which are claimed to justify the belief in the existence of the fraixd charged. If it be a judicial act, and the magistrate, after examination of the facts, finds that they prove the fraud, and thereupon issues the process, it is difficult to see upon what rule the validity of such determination can be attacked collaterally. If enough is presented to challenge judicial examination, the determination is conclusive upon the parties till set aside by direct proceedings for review. As was well said by Bronson, J., in the case of Miller v. Brinkerhoff, 4 Denio, 120, “where cerfekixx'facts are to be proved to a court of special and limited jurisdiction as a ground for issuing process, if there be a total defect of evidence as to any essential fact, the process will be declared void in whatever form the question may arise; but where the proof has a legal tendency to make out a proper case, in all its parts, for issuing such process, then, although the proof may be slight and inconclusive, the [433]*433process will be valid until it is set aside by a direct proceeding for that purpose.” That it is within the power of the legislature to make it a judicial or ministerial act, will not Re questioned. The-issue of an order of attachment, under our code, is unquestionably a ministerial act, and of an order of injunction equally unquestionably a judicial act. The legislature might reverse the rule, and permit the issue of an injunction upon the filing of a specified bond and affidavit, and require a judge or justice to examine into and pass upon evidence of facts before issuing an attachment. It is often very difficult to distinguish between the two, or to assign a given act to one or the other class. It is so in the case before us; and the conclusion we have reached has been with grave doubts of its correctness. ¥e hold it to be a judicial act. It is an act to be done by a judicial officer, one whose prominent duties are judicial. , It is never .to be resubmitted to another officer, nor examined by another mind. The facts must be stated for the purpose of challenging some judicial examination. The only officer who does examine is the justice. The only time the statute expressly names for his examination is on the filing of the affidavit and the application for the order. The statute makes provision for subsequent examination as to the .truth of the charge, nothing more. We do not mean to be understood as saying that the justice may not re-examine the sufficiency of the affidavit on motion to vacate and set aside the order, but simply that such power is not-delegated by any express provision of the article concerning: “arrest and bail;” and we are now seeking the intent of the legislature, not the power of the justice. Under these circumstances it seems to us that the justice is required to examine the affidavit,, and .determine ,.that...the facts, stated .prove the fraud, before he may issue the order; and that his determination on this question is as conclusive and binding upon the parties as that made on any other question submitted .for his judicial examination. It may be said that a bond is required of a plaintiff seeking.an order of arrest, which would not be unless the issue of the order was purely ministerial. A bond is [434]*434properly required, for the affidavit, though sufficient, may not be true; - a re-examination after argument from both sides may convince the justice of its insufficiency, or it may be adjudged insufficient in 'a higher court.
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'The opinion of the court Avas delivered by
Brewer; J.:
This Avas an action of false imprisonment. On the 4th of January 1871 Gillett sued Thiebold before a justice of the .peace. He filed Avith the justice the folloiving .affidavit:
[Title, and Venue.] “Henry W. Gillett makes oath that the claim in this action is on account for liquors sold for $137.25; and he also makes oath that the claim is just, and .that Henry W. Gillett, the plaintiff, ought to recover the [431]*431amount of $137.25; lie also makes oath that the said Jack Thiebold, the defendant, has disposed of his property with intent to defraud his creditors. He is justified in the belief •of the above facts from the following considerations: that the defendant, living at Lawrence, lately sold all his property known to affiant, and converted the same into money, and has left Lawrence, his late place of business and residence, .and made no provision for the payment of his debts.
“Henry W. Gillett.
•“Sworn to before me, and subscribed in my presence, this 4th day of January, 1871. Richard R. Rees, J. P
Upon that affidavit an order of arrest was issued, and Thiebold brought before the justice. A trial was immediately had, judgment entered in favor of Gillett for $137.25, .and an execution, with an order of arrest, issued by the justice. Nothing being paid on the execution, and no property found, Thiebold ivas committed to jail whence he was discharged on habeas corpus, after two or three days, by the judge of the district court of the first judicial district. 'Thereupon he brought this action for false imprisonment.
1. Affidavit for iest. ‘ 2. Facts must be moved. Two important cpiestions are presented. The first is this: Was the affidavit sufficient to justify the issue of the order of arrest? An affidavit for an order of attachment is sufficient if it avers positively the existence of any of the grounds named in the statute. Reyburn v. Bassett, 2 Kas., 227. But it is otherwise in an affidavit for an order of arrest. There the statute provides that “the affidavit shall also contain a statement of the facts claimed to justify the belief in the existence” of the grounds .set forth for the arrest. Justice’s act, Gen. Stat., 779, §18. This portion of the statute is of equal force with the rest. Respect must be paid to its' requirements, or the proceedings will not stand. Nor is it a meaningless provision. It is not .satisfied by a statement of any facts. There must be an allegation of the existence of such facts as, uncontradicted or unexplained, show that the charge of fraud made in the affidavit is true. A fact or facts which simply raise a suspicion of guilt, or point to the pos[432]*432sibility of fraud, are insufficient. A chain of circumstances which is consistent with a fraudulent purpose, will not be enough. The facts stated must establish the fraud. Nothing less than this will give reasonable effect to the requirement of the statute. Frost v. Willard, 9 Barb., 440; Ex parte Smith, 16 Ill., 348; Gorton v. Frizzell, 20 Ill., 291; Spice v. Steinrick, 14 Ohio St., 213, and cases there cited. Tried by this rule, and the affidavit is obviously insufficient. The facts stated in the affidavit do not show a fraudulent intent. This is too patent to need discussion.
3. justice of peace; when lie acts judicially, A second and graver question is this: Was the act of the justice in issuing the order of arrest a judicial act, and having been performed by one having jurisdiction of the subject-matter, and the persons, conclusive on the parties, and not subject to attack collaterally? If no facts were no t • i ^ stated m the anxdavxt, the case would be free from difficulty; for where the statute prescribes certain conditions for the exercise of powers by an inferior tribunal, a disregard of those conditions renders the attempted exercise of those powers void. The trouble here lies in this, that an attexnpt is made to follow the statute by alleging certain facts which are claimed to justify the belief in the existence of the fraixd charged. If it be a judicial act, and the magistrate, after examination of the facts, finds that they prove the fraud, and thereupon issues the process, it is difficult to see upon what rule the validity of such determination can be attacked collaterally. If enough is presented to challenge judicial examination, the determination is conclusive upon the parties till set aside by direct proceedings for review. As was well said by Bronson, J., in the case of Miller v. Brinkerhoff, 4 Denio, 120, “where cerfekixx'facts are to be proved to a court of special and limited jurisdiction as a ground for issuing process, if there be a total defect of evidence as to any essential fact, the process will be declared void in whatever form the question may arise; but where the proof has a legal tendency to make out a proper case, in all its parts, for issuing such process, then, although the proof may be slight and inconclusive, the [433]*433process will be valid until it is set aside by a direct proceeding for that purpose.” That it is within the power of the legislature to make it a judicial or ministerial act, will not Re questioned. The-issue of an order of attachment, under our code, is unquestionably a ministerial act, and of an order of injunction equally unquestionably a judicial act. The legislature might reverse the rule, and permit the issue of an injunction upon the filing of a specified bond and affidavit, and require a judge or justice to examine into and pass upon evidence of facts before issuing an attachment. It is often very difficult to distinguish between the two, or to assign a given act to one or the other class. It is so in the case before us; and the conclusion we have reached has been with grave doubts of its correctness. ¥e hold it to be a judicial act. It is an act to be done by a judicial officer, one whose prominent duties are judicial. , It is never .to be resubmitted to another officer, nor examined by another mind. The facts must be stated for the purpose of challenging some judicial examination. The only officer who does examine is the justice. The only time the statute expressly names for his examination is on the filing of the affidavit and the application for the order. The statute makes provision for subsequent examination as to the .truth of the charge, nothing more. We do not mean to be understood as saying that the justice may not re-examine the sufficiency of the affidavit on motion to vacate and set aside the order, but simply that such power is not-delegated by any express provision of the article concerning: “arrest and bail;” and we are now seeking the intent of the legislature, not the power of the justice. Under these circumstances it seems to us that the justice is required to examine the affidavit,, and .determine ,.that...the facts, stated .prove the fraud, before he may issue the order; and that his determination on this question is as conclusive and binding upon the parties as that made on any other question submitted .for his judicial examination. It may be said that a bond is required of a plaintiff seeking.an order of arrest, which would not be unless the issue of the order was purely ministerial. A bond is [434]*434properly required, for the affidavit, though sufficient, may not be true; - a re-examination after argument from both sides may convince the justice of its insufficiency, or it may be adjudged insufficient in 'a higher court. So that the requirement of a bond throws little light on the question. Again, it may be said that a like statement of facts is required in- an affidavit filed in the district court, and that there the clerk issues the process without order from the judge. This is true'; but there are several points of difference between the procedure in justices’ and that in district courts, in cases of arrest, which may well show that the clerk only acts ministerially, while the justice acts judicially in issuing similar writs. Without attempting to indicate all, wc will name a few of the points of difference. In the district court the statute provides for submitting the sufficiency of the affidavit to the judge. The party arrested is committed to jail, and' there remains till the determination of the action according to the ordinary methods and time of procedure, unless he apply on motion to the judge for his discharge. The arrest proceedings are so entirely auxiliary that they do not at all change or modify the regular course of procedure in the action. The clerk performs no other function than that of approving and filing the bond, filing the affidavit, and issuing the order of arrest. The control of the proceeding, so far as discretion is concerned, is with the judge. In the justice’s court the-justice alone examines. The defendant arrested is brought immediately before him, and a trial had without delay. If the defendant contest the sufficiency, or truth of the affidavit, or validity of the claim, he may have all three questions disposed of at once, and never go near the jail. We merely suggest these elements of- difference, not caring in the present case to determine absolutely the character of the acts of the clerk in cases of arrest. It is enough for us to settle in what character. th.e justice acts. Outlaw v. Davis, 27 Ill., 467; Kissock v. Grant, 34 Barb., 144; Van Alystyne v. Erwine, 11 N. Y., 331; Johnson v. Moss, 20 Wend., 144; Matter of Faulkner, 4 Hill, 598; Billings v. Russell, 23 Penn. St., 189; Skinnion [435]*435v. Kelly, 18 N. Y., 353. In this last case Johnson, Ch; J., in delivering the opinion of the court, after saying in substance that proceedings based upon a similarly defective affidavit will be deemed valid, uses this language: “It will be so deemed because the justice, having proof presented to-him; and being required by law to determine upon the weight of the proof, has acted judicially iii making his determination. His decision may be erroneous, but is not void.”. It results from this view of the case that great care should be exercised by justices in examining affidavits, and issuing orders of arrest. The facts' disclosed should clearly prove the fraud, otherwise innocent debtors may suffer a punishment which should only fall upon the guilty.
From the views herein expressed it is evident the judge of the district court erred in his rulings upon the trial. The judgment must be reversed, and the cause remanded for further proceedings in conformity with this opinion.
All the Justices1 concurring.