education. This contention cannot be sustained. There was no contract between the board of education and either Hedderman or his employés. The contract of Hedderman was with Carr & Callahan, and he owed no duty to the board of education or any member of it, and consequently it owed him none. They were entirely independent of each other; hence there was no impropriety in the bank, of which Adams was manager, dealing with Hedderman as it would have dealt with any stranger.

2. It is claimed by appellant that the money paid by Carr & Callahan to Hedderman was a trust fund, and that no matter whose hands it passed into, it was subject to the payment of the checks given to plaintiff's assignors. Is this a trust fund? It is fundamental that "trusts are created either by the contract of parties or by operation of law." 1 Perry, Trusts, § 82. It is not claimed that any contract of the parties here has been alleged which makes this a trust fund, or in any way sets it apart for the payment of these checks. A trust by operation of law arises only in a well-defined class of cases. Section 125 of Perry on Trusts defines these different classes, and the note to that section in the fourth edition in detail sets out all cases of resulting trusts. The section and note are lengthy, and we will not set them out in this opinion. Suffice it to say that the facts alleged in the complaint in this action are in no wise analogous to any case or condition suggested as creating a resulting trust. It is evident from the facts alleged that, when the board of education paid to Carr & Callahan the amount due under their estimate, the board had nothing further to do in the premises, and owed no further duty to any person, in connection with this money. Carr & Callahan could do as they pleased with the money. their own, and their obligation to pay Hedderman was a legal one, for which they were personally bound, but they held no money in trust to pay him. When Hedderman

It was

received the money, the same was true of him as of Carr & Callahan,--the money was his, and he could do as he pleased with it. He paid it to the bank, instead of his employés. Whatever his moral duties were, he had a perfect legal right to dispose of the money as he pleased.

Our attention has been called by counsel for appellant to his claim that no lien is allowed by our statutes to laborers on public buildings such as this school-house. We fail to see what relation this has to the matter under consideration. If the workmen on a public building are denied a lien, then they simply have so much less protection on such buildings. The fact that this remedy is denied them cannot be claimed to give them some other and different one, outside of their contract of employment, and outside of the law. We find no error in the record, and the judgment is affirmed.

ZANE, C. J., and BARTCH, J., concurred.

WOLF MARKS AND ANOTHER, RESPONDENTS, v. JOHN
T. SULLIVAN AND OTHERS, APPELLANTS.

FALSE IMPRISONMENT.-PROCESS LEGAL ON FACE.-An action for false imprisonment lies only where the imprisonment is extrajudicial and without legal process, not where there is legal process which is issued upon insufficient grounds or without probable cause. The remedy for the latter case is, if anything, malicious prosecution.

ID.-ID.-ERRORS OF JUDGMENT.-When a party has made complaint to a magistrate and stated to him the facts, and thereupon the magistrate issues his warrant, through a mistake of

judgment and defendant therein is arrested, such party is not liable to such defendant in an action for false imprisonment. ID. JUSTICE OF PEACE.-ERROR IN JUDGMENT.-A justice of the peace acting within his jurisdiction is not liable for mistake of judgment in arriving at his conclusions, although the facts upon which he acted do not justify his conclusion. ID.—ID.-JUDICIAL DISCRETION.-A committing magistrate is required by laws of Utah Territory to hear the complaint of prosecuting witness, and if after hearing the facts, he decides there is probable cause to believe that a public offense has been committed and that defendant has committed it, he must issue a warrant for the arrest of the defendant, held that in issuing his warrant the justice of the peace is acting as a judicial officer and cannot in an action of false imprisonment be held responsible to the person arrested under the warrant, even though the facts do not justify the conclusion of the justice that an offense has been committed.

ID.-CONSTABLE.-ACTING UNDER LEGAL PROCESS.—A constable who executes a warrant which is legal on its face, and is issued by a justice of the peace who has jurisdiction of the offence named in the warrant, is not liable to the person arrested in an action for false imprisonment for executing the warrant in a legal

manner.

ID.-PROCESS LEGAL.-STATEMENT OF THE CASE.-Where a constable served a writ of restitution for certain premises which was absolutely void because the court issuing it had no jurisdiction and the execution of the writ was resisted by violence, and thereupon the party in whose favor the writ of restitution was granted made complaint before a magistrate of such resistance, and the magistrate having jurisdiction of the offense thereupon issued a warrant for the arrest of the person resisting, because he erroneously considered the writ of restitution was legal, and thereupon the constable to whom the warrant was delivered proceeded to arrest the defendant in the warrant, and the party swearing out the complaint, the justice and the constable, all had knowledge of the facts making the writ of restitution, held that in an action of false imprisonment no recovery could be had either against the constable, the justice or the party swearing out the complaint. EVIDENCE.-HEARSAY.-In an action for false imprisonment for an alleged unlawful arrest, semble that the exclamation of a by

stander at the time the arrest was being made was not admissible, sed quære was it part of the res gestae?

APPEAL from a judgment, and from an order refusing a new trial, of the district court of the first district, Hon. John W. Blackburn, judge. The opinion states the facts.

Mr. John W. Judd and Mr. J. W N. Whitecotton, for the appellants.

Mr. Charles S. Varian, Mr. George Sutherland and Mr. William H. King, for the respondents.

Miner, J.:

This action is brought to recover damages for an assault and battery and false imprisonment. It appears from the abstract that one W. H. Culmer had brought a suit for forcible entry and detainer in Commissioner Hill's court at Provo, Utah county, against Anna Marks, for possession of premises in Tintic precinct, Juab county. Execution for possession was issued on the judgment to defendant Sullivan, a constable of Juab county. When Sullivan began the execution of the writ, on December 19, 1887, he read over the writ to the defendant, who made some objections to the proceedings. Her attorney was called in, and, after reading the execution, said it was regular, and advised plaintiff to surrender peaceable possession of the property. The officer left his deputy in possession of the house, and went away for a short time, and, when he returned, found the door locked, and plaintiff, with a revolver in each hand, within the house, and she refused him admission. Sullivan then went before defendant Dana, a justice of the peace of that precinct, exhibited his execution, stated the facts of plaintiff's resistance in a sworn complaint, and obtained a warrant in due form for the arrest of the plaintiff on the charge of resisting him in the lawful discharge of his

duties. Sullivan arrested the plaintiff on this warrant, and took her before said justice for examination. She resisted such arrest, and had to be carried or dragged along to the justice's office. She obtained a continuance of the case from time to time until the 23d of December, at which time she waived examination, and gave bonds to appear before the next grand jury. The plaintiff brings this action against the justice who issued the warrant of arrest, the constable who served the warrant, Belle Tompkins, and others who aided in her arrest, for an assault and battery and false imprisonment, alleged to have been committed by the defendants at and during such arrest, and the confinement consequent thereon. It is claimed that the writ of execution was void because issued by a commissioner residing in another county. The case was tried before a jury, and a verdict rendered against Sullivan, the constable, Dana, the justice, and Belle Tompkins, for the sum of $3,000. The other defendants were found not guilty.

Did Dana, the justice, faith, exceed his juris

The first question presented is: in the absence of any motive or bad diction, so as to become liable in damages, in issuing the warrant against plaintiff on the sworn complaint of defendant Sullivan, charging plaintiff with having resisted him in the service of the writ, and was the justice bound to know and decide at his peril, upon an inspection of the execution, and the hearing of the preliminary complaint in advance of the hearing upon the merits, that no offense had been committed by the defendants, and that the acts of the constable in the premises were illegal and void? In this Territory, justices of the peace are magistrates. Section 4836, Comp. Laws 1888. The offense charged was that of willfully resisting an officer. The justice had no jurisdiction to hear, try, and punish for this offense; he could only act as a committing magistrate. Comp. Laws 1888, §§ 3023, 4436. Our statutes require the magistrate to take