TEAL V. FISSEL.
The surety executed the mortgage presumably with a. knowledge ot the law, as to the effect of payment by the principal, and must be deemed and taken to consent to it, and be bound accordingly. The former ruling is adhered to.
«(Jz'rcuit Oourt, E. D. Penn81Jl'Dania. June 29, 1886.)
MALICIOUS 'PROSECUTION-FALSE IMPRISONMENT.
To sustain an action for malicious prosecution it must appear that the prosecutor was actuated by malice. without probable cause; and to sustain an action for false imprisonment it must appear that he was guilty of some improper conduct connecting him with the unlawful arrest.
If the offense charged is of a pUblic nature. and a justice, through error of judgment. issues a warrant when none should issue, or an erroneous warrant m substance or form, the error is his alone; but if the object in view is the protection or enforcement of a statutory private right, and a warrant is procured where none is authorized, and an arrest made, the individual procuring it, and all others participating, are held responsible.
BAME-WARRANT-WHO LIABLE WHEN ERRONEOUSLY ISSUED.
At Law. F. E. Brewster, Samuel Hepburn, Sr., and F. Oarroll Brewster, for plaintiffs. F. E. Beltzhoover and S. Hepburn, Jr., for defendant.
BUTLER, J. To render a prosecutor (one who makes information on which a warrant of arrest for crime is grounded) liable to suit, either in trespass for false imprisonment, or case for malicious prosecution, he must be guilty of some wrong towards the party arrested. The policy of the law forbids that he shall be held rtlsponsible except under such circumstances. In an action for malicious prosecution it must appear that he was actuated by malice, without probable cause; and in an action for false imprisonment it must appear that he was guilty of some improper conduct, connecting him with the unlawful arrest. In either case, if he have probable cause to helieve a crime has been committed, and does no more than make information of the facts, he is not responsible for the arrest which follows. If the justice, yhrough error of judgment, issues a warrant when Done should issue, or an erroneous warrant, in substance or form, the error is his alone. If, in the latter case, the accused is arrested, the justice, and all others actively engaged ill making the arrest, are responsible for the unlawful interference with the defendant's person.
by C. B. Taylor, Esq., of the Philadelphia bar.
Their only justification is the warrant, and that, being unlawful. affords no protection. To hold the prosecutor responsible in such case. who simply discharges a public duty in making information of a supposed offense. would not only be grossly unjust to him, but would also be highly injurious to the public interests. What reason or excuse can be suggested for holding him responsible for the justice's mistake? He has nothing to do with issuing the writ; no authority or inffuence respecting it. It is the justice's duty to pass upon the facts, and determine whether a warrant shall issue. His functions are jUdicial. This is all so plain that no question could be raised respecting it but for the loose and inconsiderate expressions to be found in a few reported cases. No instance was cited by the learned counsel, in which a prosecutor was ever held responsible for an honest statement of facts. where he supposed a public offense had been committed. There is a class of cases in which individuals who institute proceedings for arrest (where such proceedings are not authorized by law) may be held responsible. In these cases, however, the individuals are not prosecutors in the ordinary and proper sense of the term. No offense against the public (no crime) is charged. The object in view is the protection or enforcement of a private right; as where a creditor is allowed to proceed by arrest, under the peculiar circumstances described in a statute authorizing the warrant. Here (aud in similar cases) a special jurisdiction is conferred; and if a warrant is procured where none is authorized, and an arrest made, the individual procuring it, and all others participating, are held responsible. The failure to distinguish this class of cases, where individuals are proceeding on their own account, for their own private benefit, from public prosecutions for crime, where the prosecutor represents. not himself, but the public, has led to the confusion and inconsiderate remarks occasionally found in the books. The cases of Maher v. Ashmead. 30 Pa. St. 344; Curry v. Pringle, 11 Johns. 444; Gold v. Bissell, 1 Wend. 210; Tlo,qers v. Mulline1', 6 Wend. 597; Vredenburgh v. Hendricks. 17 Barb. 179, belong to this class. Baird v. Householder, 32 Pa. St. 168, and Kmmer v. Lott, 50 Pa. St. 495, cited by the plaintiff, decide nothing more than that the form of action there adopted was wrong. The question of liability in another form was not discussed nor considered, and the incautious observations dropped respecting it are of no value.-The subject is so fully considered in Latham v. LiMy, 38 Barb. 339; Stewart v. Hawley. 21 Wend. 552; and West v. Smallwood, 3 Mees. & W. 418,-that nothing further need be added. . In the case before us the defendants (the plaintiffs here) were supposed to be guilty of a public offense.-a crime. The justice had full and unquestionable jurisdiction, as he has of all criminal charges. The prosecutors did no more than lay the information before him. It is true, they say they went to obtain a warrant. and it is probable
FORTUNE V. SMITH.
they told the justice that they desired the writ. But this is substantially what is done in every case. The prosecutor would not visit the justice if he did not think Ilr warrant should issue; the object of his visit is to procure it. He has no control, however, over the justice, and knows that the warrant will issue or not as the justice may determine. If, through improper motives and improper means, he induces the justice to proceed, a different case is presented. Here the prosecutors honestly believed an offense had been committed. and that the information laid before him was truthful. They were therefore in no respect responsible for what followed. If responsibility exists, it is upon the justice, and the constable who executed the warrant. We do not mean to intimate that they are responsible; the question is not involved. If such responsibility exists, it arises out of the justice's mistake. To hold the prosecutors liable for this would, as before suggested, be not only unjust to them, but injurious to the public. Judgment will therefore be entered for defendants on the second point presented on the trial, and reserved for future consideration. If it may be said that the point assumes the facts on which it is based, it may be answered that the case justifies the assnmption. These facts were not open to controversy, and the court was therefore bound to take them as here stated, and rule the case as we now do; in other words, to instruct the jury that there was no evidence of wrongful conduct on the defendants' part, and therefore that the suit cannot be sustained.
(Circuit Court, D. Nebraska. August 19, 1886.)
Where a firm agreed with an agent to apply the first moneys collected from the property of an absconding debtor in payment of a joint note from the agent and said debtor, who had been in partnership, in consideration of releasing the agent from any partnership liability, while he agreed to allow the firm to make their claims against the debtor prior and superior to his own, held, that the agent thereby granted to the firm priority of lien on property attached by him for their benefit, although he had himself a good equitable lien on the same property, previously given to secure him for money he had put into the partnership.
In Equity. Whitny S. Clark, for complainant. W. H. Munger, for defendants. BREWER, J. This is a bill to correct a mistake in a deed and to remove a cloud from the title. The facts are these: In January, 1885, one John Y. Smith was in business in Nebraska and Iowa huying grain and shipping to Chicago. Rumsey & Buell were commission merchants in Chicago to whom he made his shipments, and v.28F.no.6-23
who were in the habit of making time advances on grain purchased and to be purchased. M. Fortune, the complainant in this case. was'atraveling agent of Rumsey & Buell, looking after their interests in Iowa and Nebraska. On January 16, 1885, he formed a full partnership with Smith, putting into the concern $5,800 in cash. the property of his wife, $2,200 in notes belonging to himself, and $5,000 borrowed from Rumsey & Buell on a note signed by himself, his wife, and Smith. The name of the concern was unchanged, though he became a full partner. 'l'he business of the partnership was managed entirely by Smith; Fortune continuing to act as an agent of Rumsey & Buell. On April 17, 1885, Smith executed and forwarded a deed to Fortune. Smith intended by this deed to convey what is known as the opera-house property in North Bend, Nebraska, but by mistake other property was described. It was intended to secure Fortune for the money he had put into the partnership. Though in form a deed, with an expressed consideration of $5,000, it was not intended as a payment of so much money, but merely as security. Imdeed to Fortune, Smith absconded, mediately after forwarding owing Rumsey & Buell As soon as he had received the deed, Fortune came to Nebraska, and finding that Smith had absconded, placed for Rumsey & Buell an attachment on all of Smith's -property, including therein this opera-house. A few days after, RumBey came out from Chicago, and he and Fortune executed the following agreement:
"Articles of agreement made and entered into this fifth day of May, 1885, by and between Rumsey & Buell, of the first part, and M. Fortune and Ada A. Fortune. of the second part, witnesseth, that whereas, one John Y. Smith Is indebted to both of said parties and has absconded; and whereas, said first parties hold a joint note for $5,000, signed by John Y. Smith, M. Fortune, and Ada A. Fortune, dated January 3, 1885. and both parties herewith have cause for attachment against the said John Y. Smith; and whereas, said first party is about to commence suit by attachment against him,-it is agreed and understood that the parties of the first part will apply the first money they may receive from sale of corn, for which they hold John Y. Smith's crib receipts, or which they may realize or collect in attachment proceedings against him from other property in Iowa or Nebraska in payment of said joint note above described. and signed by said Smith and M. Fortune and Ada A. Fortune as aforesaid. "It is also agreed that said M. Fortune is released from any and allliability to said first parties on account of his relations in business or associations with said John Y. Smith as a partner or otherwise, and in consideration thereof said M. Fortune will use his best endeavors to assist said first parties in collecting from said Smith what he, Smith, owes them, in discovering property belonging to him in Iowa, and elsewhere, and he will allow them to make their claims against said Smith prior and superior to his in law until they shall have secured or enough to pay their claims in full.
"HUMSEY & BUELL. "M. FORTUNE."
By virtue of various proceedings Rumsey & Buell have collected about $9,000 on hiB indebtedness. Some time after the above agree-
ment Fortune instituted this suit making Rumsey & Buell as well as Smith defendants. By it he seeks to have the deed corrected so as to describe the opera·house as the property intended, and at the same time have the cloud cast upon the title by Rumsey & Buell's attachment removed. Among other defense Rumsey & Buell plead the above agreement. In order to understand fully the import of that agreement, these facts must be borne in mind: Fortune, as full partner of Smith, was indebted to Rumsey & Buell in the sum of $22,000, or so much thereof at least (the exact amount of which the testimony does not disclose) as had been contracted since the forma· tion of the partnership. He was also indebted. to them on the note of $5,000 signed by himself and Smith. He was the agent of Rumsey & Buell, and as such had caused the attachment to be levied on the opera-house, the legal title to which stood in Smith. At the time of doing this he had a lien good in equity upon such opera.house, given to secure him for the money he had put into the partnership. Now, under these circumstances, by this instrument Rumsey & Buell agree to apply the first moneys collected from Smith's property in payment of said note. They also agree to release Fortune from any partnership liability, while he agrees to allow them to make their claims against Smith prior and superior to his, until they shall have collected enough to pay themselves in full. Now, while the Ian· guage of this agreement is not clear beyond doubt, it seems to me that fairly construed it means that Fortune is to postpone all claims that he may have against the properties standing in Smith's name, iI1cluding therein the opera-house, to any claim91 which Rumsey & Buell may have against said property; in other words, there being two lienholders, the prior lienholder for full consideration grants pri. ority to the junior lienholder. Such is a reasonable construction of the contract, and is such an arrangement as might fairly be expected from parties situated as these were. Under these circumstances I think that complainant is not entitled to relief, and that a decree must be entered dismissing the bill·
FEDERAL REPORTER. CLARKE v. SHAW and another, Trustee.
(Oircuit Oourt, D. Vermont. August 14,1886.)
ATTACHMENT-EXEMPTIONS-MONEY COLLECTED BY MARSHAL.
Money collected by a United States marshal on an execution issuing out of the United States circuit court, and held by him as trustee of the defendant, is not subject to attachment.
Attachment of Money Held by a Trustee as United States Marshal. Guy C. Noble, for plaintiff. Dudley C. Denison and Joseph D. Denison, for Trustee. WHEELER, J. The trustee, as marshal of this district, has $884.98 in his hands which he has collected on an execution issued out of this court in favor of this defendant. The statutes of the state provide that "a person having goods, effects, or credits of the defendant intrusted or deposited in his hands or possession," may be summoned as a trustee, and that goods, effects, and credits shall thereby be attached, and held to respond to the final judgment in the suit." Rev. Laws, 1068. The marshal has been summoned as trustee of the defendant in this suit commenced in a court of the state to attach and hold the money so collected under that statute, and the suit has been removed into tbis court. The question now is whether this money in the hands of the marshal can now be held in that manner. It is held by tlw highest courts of the state that money collected by a sheriff on execution may be attached by such trustee process. Hurlburt v. Hicks, 17 Vt. 193; Lovejoy v. Lee, 35 Vt. 430; Adams v. Lane, 38 Vt. 640. The contrary was held in TUTrter v. Fendall, 1 Cranch, 116, and in W'ilder v. Bailey, 3 Mass. 289. It is argued with plausibility, in behalf of the plaintiff, that this proceeding rests on a statute of the state, and that the construction of the statute by the highest court of the state should govern. This argument is well founded, so far as the proceeding rests upon the statute of the state; but this money is held by the trustee as marshal under ana by virtue of the laws and authority of the United States. The manner of the holding is to be determined upon those laws and the effect of the proceedings under them, which have resulted in the collection of the money by the marshal. The question is whether the money when collected is so held by the marshal as to come within the operatior. of this statute of the state. It is not claimed or doubted but that f marshal holding specific property in his hands by virtue of the process of a court so holds it that it cannot be interfered with by any other officer or process. Freeman v. Howe, 24 How. 450; Lammon v. Feusier, 111 U. S. 17; S. C. 4 Sup. Ct. Rep. 286; Covell v. Heyman, 111 U. S. 176; S. C. 4 Sup. Ct. Rep. 355. It is argued that this does not apply to money collected on execu-