¶1delivered the opinion of the court.
¶2The plaintiff prosecuted the defendant for false improsonment, ;and upon the trial showed that he and others were sent to Shelbina by the officers of the Hannibal & St. Joseph Railroad Company, ■to remove a section-house belonging to the company. While engaged in its removal they were arrested under criminal process, by procurement and upon affidavit of defendant, for maliciously injuring his house and building; were forcibly taken before a magistrate, and held in custody for some four hours; were then ■permitted to leave upon promise to appear again before him at the same place at a future day to which the hearing of the cause was adjourned. They returned at the appointed time, and were told by the constable that the justice was holding the court some *63four miles away, but having no means of transportation' they declined to walk, and defendant’s attorney then told them, in his presence, that they might go about their business ; that they did not wish to prosecute them further; that they had got their hands tied — had sued out an injunction restraining the company from removing the section-house. They went away, and the justice entered on his docket that they failed to appear. After showing these facts, with the proper exhibits of the sham proceedings before the justice, the court instructed the. jury that the plaintiff had failed to make a case, and under this instruction they found for defendant.
¶3It is evident that the whole proceeding before the justice was a sham; that it was instituted to stop the removal of the building until the defendant should be able to prevent it by legal process. It was not a voluntary appearance, for when the defendant and his companions refused to go before a magistrate they were surrounded by a large and noisy posse, as the crowd was called, and taken there against their will. The law will not permit criminal process to be abused in this way. The justice who issued it placed himself in a delicate position, and the person who sued it out is liable in damages to those whose liberty was thereby restrained. Says Judge Fagg in Ahern v. Collins, 39 Mo. 150 : “It makes no difference whether the restraint of the person is caused without process or under color of process wholly illegal. (1 Chit. Prac. 148.) It is trespass against the person, for which the plaintiff is entitled to compensation in damages upon the necessary proof of the facts.” To this I would only add that an arrest under a sham proceeding, an abuse of the process of court, a fictitious charge made under the forms of law, mala fide, is a public as well as private wrong, and should be held rathem to aggravate the damages.
¶4The judgment will be reversed and the cause remanded for a new trial.