Good wine v. Stephens.

"Subscribed and sworn to before me, this 9th day of February, 1875. GEORGE PENCE, J. P."

"State of Indiana, Warren county, ss.

"To any constable of Warren county:

"You are hereby commanded to arrest George Conner, Frank Seals, George Stephens, S. Dukes, Squire Stephens, William Malbie, Daniel Pritchard, Frank Seals, William Stephens, John Record, John Stephens and William Thompson, and bring them forthwith before me, at my office, in Jordan township, to answer a charge of having, at said county, on or about the fifth day, to the ninth day, of February, 1875, committed a trespass, as James M. Goodwine has complained on oath, and have you then and there this writ.

"Given under my hand and seal, this 9th day of February, 1875. GEORGE PENCE. [SEAL.]" A demurrer was sustained to the second, third and fourth paragraphs of answer severally, and exceptions entered.

Trial by jury, upon the general denial. Verdict for the plaintiff for four hundred and fifty dollars. Motion for a new trial overruled, and judgment on the verdict.

The reasons assigned for a new trial were:

1. Excessive damages;

2. Verdict contrary to law;

3. Verdict contrary to evidence;

4. Error of the court in instructing the jury, that no circumstances could be shown in mitigation of damages; 5. Error of the court in refusing specified evidence in mitigation.

The errors assigned in this court are:

1. The sustaining of the several demurrers to the several paragraphs of defendant's answer;

2. The overruling of the motion for a new trial.

We may observe that we have no brief from the appel

Goodwine v. Stephens.

lee, informing us of the grounds upon which the rulings below were made.

In determining the sufficiency of the second and fourth paragraphs of answer to severally withstand a demurrer, we look only, in this case, to the warrant and the action under it. Davis v. Bush, 4 Blackf. 330; Caldwell v. . Kenworthy, 31 Ind. 238.

It may properly be observed, however, that the affidavit was not a nullity, nor void.

The second and fourth paragraphs justify as to the constable, on account of his acting under a warrant, and as to the appellant, on account of his acting in obedience to the command of the constable.

That the warrant might be a protection to the constable, it was necessary that it should be a valid, though it might be an informal and erroneous, one. Cooper v. Adams, 2 Blackf. 294; Webster v. Farley, 6 Blackf. 163.

The warrant in the case at bar commanded the constable to arrest for a trespass, and the arrest was made under the

warrant.

We have two sections of a statute providing for the punishment of trespass. Section 13 of the misdemeanor act enacts, that every person who shall maliciously injure any property of another shall be deemed guilty of a malicious trespass, and, on conviction, shall be fined, and may be imprisoned, etc.; and section 14 of the same act provides, that every person who shall, without license, cut down or remove any tree, etc., or other valuable article, shall be deemed guilty of a trespass, and, on conviction, shall be fined, and may be imprisoned.

Under the affidavit in this case, a warrant for simple trespass might well have been intended to be issued. The affidavit would have justified a warrant for such trespass. Perhaps it would have justified one under section 13. See Cooper v. Adams, supra, and the other authority there cited. See The State v. Shaw, 4 Ind. 428.

Goodwine v. Stephens.

The warrant, then, being valid, it authorized the constable to make the arrest; and, as it authorized him to make the arrest, it authorized him to call upon persons to assist him in making it; and it was the duty of the person or persons so called upon to obey the call. 2 R. S. 1876, p. 651, sec. 6; The State v. Deniston, 6 Blackf. 277. And section 45 of the misdemeanor act enacts:

66

Every person required by any sheriff or his deputy, or by any coroner, constable, or any conservator of the peace, to assist him in the execution of his office, or in the service of any process, and failing to obey, shall, upon conviction, be fined in any sum not exceeding one hundred dollars, unless he show a valid cause for not obeying." See 2 Addison Torts, 702.

The like power to command the aid of citizens in making arrests is conferred upon sheriffs and judges. 2 R. S. 1876, pp. 8, 18.

The second and fourth paragraphs were good, and the court erred in sustaining the demurrers to them.

The third paragraph of answer alleges an arrest without

warrant.

Among the duties of a constable are these:

"To act as conservator of the peace, and apprehend and take, forthwith, before the nearest justice, all who violate the law in his presence, and then charge them with such violation on oath." 2 R. S. 1876, p. 649.

The second paragraph alleges an arrest of appellee for an offence at the time of its commission, in the presence of the officer, and would have been good if it had charged that the prisoner was taken before the nearest justice. We do not decide, as it is not necessary to the determination of this cause that we should, that it is not sufficient as it is.

The fact, that the warrant in this prosecution was issued upon the affidavit of the appellant, does not affect the case.

Goodwine v. Stephens.

The affidavit is not charged to have been maliciously made. The suit is not for making the affidavit, but for the arrest of the appellee. See Carey v. Sheets, 60 Ind. 17.

Had the affidavit been made to procure a writ for arrest in a civil cause, it might be different. But it was simply a charge of a misdemeanor, duly made and left with a proper magistrate, upon which he judicially acted as, in his judgment, the law required him to act.

In Bigelow's Leading Cases on Torts, p. 280, in treating of false imprisonment, it is laid down that:

"In criminal cases the party who prefers the charge is not liable unless it is made maliciously **; for the law encourages the exposure of crime. But if a person procure the arrest of another in a civil cause, a proceeding for his own benefit, and not for that of the public, and which he himself conducts, he acts at his peril if the process be irregular." But on this point we decide nothing See 2 Addison Torts, p. 718. On page 749 of the same volume, we find the following:

"It has been held, that if a person goes and lays his complaint of the loss of his property before a magistrate, and tells him of its having been taken or appropriated by the plaintiff, the complaining party is not responsible for what the magistrate may think fit to do upon the strength of this information. If, therefore, the magistrate, acting upon the statement or deposition bona fide given, treats the matter as a felony, and issues his warrant for the apprehension of the plaintiff on the charge of felony, and in so doing forms an erroneous judgment, and conceives that to be a felony which is not a felony but only matter for a civil action, the complaining person, who has thus set the magistrate in motion and caused the warrant to be issued, is not responsible for the erroneous judgment of the magistrate, and the acts consequent thereon."

Many authorities are cited to the law as thus laid down.

Jenkins v. Jenkins, Administrator, et al.

The judgment is reversed, with costs; cause remanded for further proceedings, in accordance with this opinion.

JENKINS V. JENKINS, ADMINISTRATOR, ET AL.

DECEDENTS' ESTATES.-Priority of Debts.-Judgment.-The rights of priority, and the order of payment, of claims against a deceased debtor's estate, are fixed and determined by section 109 of the act in relation to the settlement of decedents' estates, 2 R. S. 1876, p. 534, and can not be determined otherwise by the judgment of a court.

SAME.-Judgment of Priority of One over Others.-Notice.-A judgment giv-
ing priority to the plaintiff's claim, rendered in an action by the adminis-
trator personally against such estate, does not bind creditors who have had
no notice of such action.

SAME.-Insolvent Estate.— Former Adjudication.—Merger.—Practice.— Trial.
-The administrator of the estate of a deceased debtor, being himself a cred-
itor, filed his claim against the estate and procured its allowance by the
court, simply as a general claim. He afterward filed a complaint against
such estate, asking that the estate be declared insolvent and that his judg-
ment be adjudged a preferred debt, alleging as ground that the
claim was secured by a mortgage executed to him, by his decedent, in his
lifetime, on personal property which he had since, as administrator, con-
verted into money. Upon the hearing of the cause it was found by the
court that the estate was probably insolvent, and decreed that such claim
should be paid out of the proceeds of such property, as a preferred debt.
Afterward, upon filing what he intended as his final report, exceptions
were filed thereto by other creditors, tried by the court and determined
in their favor, whereupon the court, over his objections and exceptions,
ordered his said complaint for preferment to be re-docketed for trial.
Held, on a verified motion by the plaintiff to strike the cause from the
docket, setting out the proceedings had by him and the judgments render-
ed in his favor, that the judgment of preferment did not bind the other
creditors, and that the motion was properly overruled.

Held, also, that, by obtaining the allowance of his claim as a general debt,
it was merged in the judgment of allowance, and that his action for pre-
ferment could not be maintained.

From the Crawford Circuit Court.

S. K. Wolfe, for appellant.

H. Woodbury and J. B. Black, for appellees.

Howk, C. J.-In this action the appellant, as plaintiff,