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.

The first question presented is: Did Dana, the justice, in the absence of any motive or bad faith, exceed his jurisdiction, so as to become liable in damages, in issuing the warrant against plaintiff on the sworn complaint of defendant Sullivan, charging plain-| tiff 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 testimony of witnesses tending to establish the commission of the offense and the guilt of the defendant, and that if the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue his warrant of arrest. Comp. Laws 1888, §§ 4838, 4839. The justice acted under this authority, and issued this warrant. Should he be held liable for a mistake in judgment? I think the justice had jurisdiction to hear the complaint, and issue the warrant. The offense charged was clearly within his jurisdiction as a committing magistrate, under which the statute made it his duty to issue a warrant of arrest if he was satisfied, from the complaint made, that an offense had been committed, and there was probable cause to believe the defendant committed it. As to the amount of evidence which the magistrate should require in order to authorize the issue of the warrant, no definite rule can be laid down. The rule that, where there is doubt as to the guilt of the accused, he is entitled to the benefit of it, does not apply in preliminary examinations. It is sufficient if the testimony shows, to the satisfaction of the magistrate, a probable cause of guilt on the part of the accused. Barb. Crim. Law, 522; 1 Chit. Crim. Law, 33. If the evidence has a tendency to produce in the mind of the justice the belief of the probable guilt of the accused, and it does produce that belief, and he issues his warrant upon it, he cannot be said to have v.33P.no.4-15

issued it without jurisdiction, though further evidence would have been more satisfactory or conclusive, or because he has drawn stronger inferences from it than he should have drawn. People v. Lynch, 29 Mich, 280. Nor is it to be understood that a magistrate would be liable for issuing a warrant if the facts are not established by the best testimony. He must exercise his judgment in the case; the judgment of no one else will do; and he is not, and should not be held, liable for a mere error in judgment,' when he acts honestly, and within the scope of his authority. When the justice has observed the preliminaries necessary to obtain jurisdiction, and has the right to adjudicate upon the question as to the propriety of issuing the warrant, no mere error of opinion or judgment will render him liable. He is bound to decide such cases, and, if probable cause is shown under the statute, he is bound to issue his warrant; and, unless he acts corruptly, it would be against both policy and justice if the law should allow him to be punished because he did not decide right. But it is claimed that the justice knew from the execution in the hands of the officer that such constable had no authority to serve the writ of restitution. It appears from the testimony that the plaintiff's attorney examined this writ, and pronounced it regular, and advised the plaintiff to surrender possession. Is it fair to presume that a committing magistrate should be possessed of such knowledge as at once to be able to detect that irregularity in a legal process that had escaped the vigilance of an attorney at law who examined it for that purpose? The irregularity of this process was one of the questions to be tried, and the justice could not judicially know of any defects in the process until a hearing was had. In the case of Pratt v. Gardner, 2 Cush. 63, in an action against a justice for willfully and maliciously entertaining a false complaint, knowing it to be false, in which the action was held not maintainable, Chief Justice Shaw said that, "where the subject-matter and the person are within the jurisdiction of the justice, he is not bound, at the peril of an action for damages or a personal controversy, to decide right in a matter of either law or fact, but to decide according to his own convictions." And as to whether the complaint was groundless, or was false or feigned, and the justice knew it, was the very question to be tried; and the justice could not judicially know the fact until a trial was had. His private knowledge would not prevent the complainant from having the questions tried. In Carter v. Dow, 16 Wis. 298, it is held that a justice of the peace is liable only where he fails to acquire jurisdiction, and not for mere errors of judgment. Busteed v. Parsons, 25 Amer. Rep. 688, and note. In Stewart v. Hawley, 21 Wend. 552, where a magistrate, on com

plaint for the violation of a statute for the observance of Sunday, issued a warrant, had the person complained of arrested, and imposed a fine upon him, it was held that the justice was not liable, although he misjudged as to the facts alleged being an "offense," within the meaning of the statute. In this case it was also held that the constable executing the warrant was not liable for trespass. Mills v. Collett, 6 Bing. 85; Ackerley v. Parkinson, 3 Maule & S. 411; Tompkins v. Sands, 8 Wend. 462; Erskine v. Hornbach, 14 Wall. 613; Savacool v. Boughton, 5 Wend. 171; McCall v. Cohen, 42 Amer. Rep. 641; Horton v. Auchmoody, 7 Wend. 201; Yates v. Lansing, 5 Johns. 282; Supe v. Francis, 49 Mich. 266, 13 N. W. Rep. 584; Johnson v. Maxon, 23 Mich. 129; Von Latham v. Libby, 38 Barb. 339; Same v. Rowan, 17 Abb. Pr. 237; Wheaton v. Beecher, 49 Mich. 348, 13 N. W. Rep. 769. There is some conflict in the authorities, but I think, from weight of authorities bearing upon this subject, that the warrant of arrest was regular and legal on its face, that the justice had jurisdiction to issue it, and that he is not liable in this action because he may have given undue weight to the testimony of the complaining witness. Having acted in good faith and with jurisdiction, he should not be made liable for a mére error in judgment.

The next question is as to the liability of the constable for serving this warrant. Under section 4861, Comp. Laws 1888, it was made the duty of the officers to serve the warrant, and, if the defendant forcibly resisted, the statute made it we duty of the officer to use all necessary means to effect the arrest. We have seen that the warrant was regular on its face, and that the justice had jurisdiction to issue it. This being so, the officer was protected by it, and cannot be made liable for its execution in a legal manner, even if he knew of defects in the proceedings attending the issuance of the execution. In People v. Warren, 5 Hill, (N. Y.) 440, it is held that a ministerial officer is protected in the execution of a process regular and legal on its fact, though he has knowledge of facts rendering it void for want of jurisdiction. This doctrine is supported by the great weight of authority, although there are dicta the other way. Webber v. Gray, 24 Wend. 485; Watson v. Watson, 9 Conn. 140; Earl v. Camp, 16 Wend. 562; Stewart v. Hawley, 21 Wend. 552; Cooley, Torts, 459, 460; Savacool v. Boughton, 5 Wend. 170; Henke v. McCord, 55 Iowa, 378, 7 N. W. Rep. 623; Erskine v. Hornbach, 14 Wall. 616. In Erskine v. Hornbach, 14 Wall. 613, the court holds that "If an officer or tribunal possess jurisdiction over the subject-matter upon which judgment is passed, with power to issue an order or process for the enforcement of such judgment, and the order or process issued thereon to a ministerial officer is regular on

its face, showing no departure from the law, or defect of jurisdiction over the person and property affected, then, and in such cases, the order or process will give full and entire protection to the ministerial officer in its regular enforcement against any prosecution which the party aggrieved thereby may institute against him, although serious error may have been committed by the officer or tribunal in reaching the conclusion or judgment upon which the order or process is issued." The complaint in this case charges the defendants with false imprisonment and assault and battery. It does not embrace the elements necessary to be alleged in an action for malicious prosecution. False imprisonment consists in restraining another of his liberty without sufficient authority. But an arrest under legal authority does not constitute false imprisonment, although made by virtue of a. warrant issued irregularly, and from bad motives. A distinction exists between false imprisonment and malicious prosecution. If the imprisonment is extrajudicial, and without legal process, the action for false imprisonment may lie. It is held to be the general rule that where a person procures the issuance of a warrant, fair on its face, from a judicial officer having jurisdiction to issue it, such person procuring it is not liable in an action for false imprisonment, even though the issuance of such warrant was erroneous because of facts not disclosed; nor would the party procuring it be liable in an action of false imprisonment, even though the warrant was procured maliciously, and without probable cause, although he might be liable in an action for malicious prosecution. 7 Amer. & Eng. Enc. Law, 680, 681; 1 Wat. Tresp. §§ 293, 294, 306, 307. Neither is a person making the complaint liable in an action for false imprisonment if he states the facts to the magistrate, even if such facts do not authorize the issuance of the warrant. If the magistrate puts a wrong construction on such facts, mistaking the law, no one is liable, unless the officer exceeds his authority and acts oppressively in the execution of the process. Wheaton v. Beecher, 49 Mich. 348, 13 N. W. Rep. 769; Fenelon v. Butts, 49 Wis. 342, 5 N. W. Rep. 784; Von Latham v. Libby, 38 Barb. 339; Newman v. Davis, 58 Iowa, 447, 10 N. W. Rep. 852; Murphy v. Walters, 34 Mich. 180; Cassier v. Fales, 139 Mass. 461, 1 N. E. Rep. 922; 7 Amer. & Eng. Enc. Law, 681; Marks v. Townsend, 97 N. Y. 590; 1 Wat. Tresp. §§ 293–307.

On the cross-examination of defendant Sullivan, he was asked by plaintiff's counsel if he did not have information by telegraph from Mrs. Marks' attorney, in the case of Tompkins v. Marks, to hold the writ of restitution until he should receive a letter which was on the road from the United States commissioner who issued the writ, which question was answered in the affirmative,

under objection and exception by defendant's attorney. I think this was error. Communications between the attorney for Mrs. Marks and the officer who held the writ against her in that case upon the subject named was foreign to the issue involved in the case on trial, where the officer was charged with assaulting Mrs. Marks by means of the service of a warrant upon her in another case, and must have had a tendency to prejudice the jury as against the other defendants, who knew nothing of that mat

ter.

Anna Marks, the plaintiff, was called by the plaintiffs, and gave testimony concerning the arrest. Among other matters, she testified under objection that, while being taken to the justice's office by the defendant, "an Irishman who was present said there were enough men to carry the poor woman." This ruling was excepted to. This statement as to what a bystander said is hearsay, and should not have been admitted. The effect of allowing this statement of a bystander-who is not sworn as witness -to be considered by the jury was to corroborate the testimony of this witness upon a material and disputed question in the case; the plaintiff having testified that she was dragged to the justice's office, while several witnesses on the part of the defense testified that she resisted the officer, and that she was carried to the justice's office in as careful a manner as possible. Railroad Co. v. Van Steinburg, 17 Mich. 99.

The case was submitted to the jury upon the theory that the writ of restitution was void, and that the justice and constable knew, or were bound to know, that it was void; that the procurement of the warrant of arrest and the service of it, though valid on its face, would not protect either Sullivan or Dana, under the circumstances of the case. This charge was misleading. The effect of the charge was to instruct the jury that, because the writ of restitution was invalid, the officer would not be justified in issuing and serving a valid warrant; that, as the first writ would not protect the officers, the warrant of arrest, though valid, would not protect them.

This action was brought to recover damages for an alleged unlawful arrest and assault and battery. No unlawful combination or conspiracy on the part of the defendants is alleged or relied upon. It was not an action for malicious prosecution. The assault and battery charged grew out of the service of the warrant alone, and had no connection with the writ of restitution. The principal question before the court was as to the validity of the warrant of arrest, and whether or not the defendants exceeded their authority and committed an assault and battery in its execution. The warrant of arrest having been issued by the justice upon testimony that was satisfactory to him at the time, and in a matter over which he

had jurisdiction, and being regular and valid on its face, was a sufficient protection to the officer, if he did not exceed his authority in its service. The question as to whether or not the testimony upon which the warrant was issued was true or false, or whether it was sufficiently strong upon which a conviction could be had, was not important. The testimony satisfied the justice that an offense had been committed, and that there was probable cause to believe that the defendant committed it. The judgment of the court below is reversed, and a new trial ordered.

ZANE, C. J., and BARTCH, J., concur in the conclusion reached in the opinion.

(9 Utah, 23)

HYNDMAN v. STOWE.1 (Supreme Court of Utah. June 5, 1893.) COMMISSIONER'S COURT-JURISDICTION-APPEALPUBLIC LANDS-POSSESSION.

1. While court commissioners, who nave the same powers in actions of forcible entry and detainer as justices of the peace, cannot try title to real property, yet, under Comp. Laws 1888, § 3543, they may in such cases determine questions relating simply to the possession.

2. Where an appeal from a commissioner's court to the district court has been perfected within 30 days from the rendition of the verdict, as required by Comp. Laws 1888, § 3657, the burden is on the appellee to show that the papers were not transmitted to the clerk of the district court, and that the docket and jury fees were not paid, within the time fixed by the rules of the district court.

3. A bona fide settler on school land within the territory, the title to which is in the federal government, who incloses it for a farm, and makes valuable improvements thereon, with the intention of purchasing the land from the government whenever a title can be procured, does not lose his possessory rights by removal from the territory, where he places an agent or tenant in possession to hold the land for him; and his legatee, a nonresident minor, may likewise hold possession through a tenant or agent appointed by her guardian.

4. Comp. Laws 1888, c. 13, relating to guardian and ward, does not interfere with the power of the court to appoint a guardian ad litem: section 13 providing that "nothing contained in this chapter affects or impairs the power of any court to appoint a guardian to defend the interests of any minor interested in any suit or matter pending therein."

Appeal from district court, Weber county; James A. Miner, Justice.

Forcible entry and detainer by Ritta Hyndman-by her guardian, Archibald Hyndmanagainst Mary J. Stowe. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

Maloney & Perkins, for appellant. H. W. Smith and Richards, Rolaph & Barton, for respondent.

BARTCH, J. This was an action of forcible entry and detainer tried in the first district court on an appeal from a commissioner's court. The action was brought to recover possession of certain real property sit1 Rehearing denied.

uate in this territory, the plaintiff and her guardian being residents of the state of Montana. It is alleged in the complaint that for more than five years previous thereto the plaintiff was entitled to and was in the peaceable and actual possession of a part of the S. E. 4 of section 16, township 6 N., range 1 W., Salt Lake meridian; that on or about the 20th day of March, 1891, during the absence of the plaintiff, the defendant unlawfully entered upon said lands, premises, and tenements, and took forcible possession thereof, and ever since has forcibly retained the same; and that on the 2d day of April, 1891, the plaintiff, by her guardian, made a demand in writing upon the defendant to deliver up possession, etc. The defendant admitted that she was in possession of the premises, but claimed that she was there of right, and with lawful authority. After the trial the jury returned a verdict in favor of the plaintiff. The defendant then moved for a new trial, which motion was overruled, and thereupon she appealed to this court.

Counsel for defendant claim that this was an action affecting the possession of real estate, and that the United States commissioner before whom the action was brought had no jurisdiction, and therefore the district court erred in not dismissing the appeal on application. While commissioners, who have the same power in such cases as justices of the peace, cannot try the title to real property, yet, under the provisions of section 3543, Comp. Laws Utah 1888, they may, in actions of forcible entry and detainer, of which they have jurisdiction, determine questions relating simply to the possession of real property. Neither party in this case claims the title, but only the possession, of the property, and therefore the district court had jurisdiction on appeal.

Counsel further insist that the papers in the appeal from the commissioner's court were not filed in the district court within the time required by law, and hence the appeal should have been dismissed. From the record it appears that the verdict in the commissioner's court was rendered on the 12th day of May, 1891, and the appeal perfected on the 11th day of June, 1891. The appeal was thus perfected within 30 days from the rendition of the verdict, which is the time allowed under section 3657, Comp. Laws Utah 1888, within which to appeal from a justice's or commissioner's court to a district court. So far the appeal is regular, and it does not appear from the record when the papers were transmitted to the clerk of the district court, nor does it appear therefrom how much time is allowed, by the rules of the first district court, within which to pay the docket and jury fees, and have the papers filed in the clerk's office. The burden is upon the appellant to show that the rules of the court were not complied with, and, the record being silent as to that, this court will presume that the proceeding in this respect was reg

ular. District courts have power to make. proper rules, and, when made, they apply to appeals from United States commissioners. Legg v. Larson, 7 Utah, 110, 25 Pac. Rep. 731.

The most material question which has been raised in this case is as to whether or not a nonresident guardian can maintain a possessory right for his ward, who is also a nonresident, through an agent, on lands situate within this territory; the same being school lands, and the title to which is still in the United States. Counsel for appellant contend that a nonresident guardian can maintain no such possessory right, and that a nonresident minor cannot maintain an action in this territory to recover possession of such land. It appears from the evidence, in substance, as disclosed by the record, that the defendant took possession of the land in 1880, at the instance of her mother, who appears to have bought the right; that they made some improvements thereon, and her mother married Hans Knudson, and sold the right to him; that Knudson held possession and made improvements until about 1885, when he appointed one F. A. Miller agent of the property, by general power of attorney, and moved to Montana; that said Miller, as such agent, leased the property to Hyrum Stowe, husband of defendant, who held possession and farmed the land under a lease from Knudson until the 1st of January, 1888, and after that said Miller rented it to two different parties, who held possession until the fore part of March, 1891; that about three days after the last tenants moved out the defendant moved into the house, and took possession of the premises, without the knowledge of the said Miller or the plaintiff; that after said Miller learned of, the action of the defendant he demanded possession of her, which she refused; that the said Knudson died testate, leaving a will dated May 28, 1886, which was admitted to probate in Madison county, Mont., and in said will the property in question was bequeathed to the plaintiff herein; that Archibald Hyndman is the father of plaintiff, and was appointed her guardian in the state of Montana; and that said F. A. Miller was appointed guardian ad litem by the trial court for the purposes of this suit, and was also the agent of the general guardian. It is apparent that Knudson was in the actual and peaceable possession of the premises, and entitled thereto, up to the time he moved to Montana; and the question to be determined, in the light of these facts, is as to whether he could maintain such possession through an agent after he had left the territory, and then bequeath it by his last will so that his legatee, being a nonresident minor, could hold possession through an agent appointed by her guardian. Section 3138, Comp. Laws Utah 1888, relating to the time of commencing actions for the, recovery of real property, provides as follows: "When

the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord until the expiration of seven years from the termination of the tenancy," etc. It is clear that under this statute the defendant cannot avail herself of the possession of the premises during the time that she and her husband lived there, and held the same under the lease, nor does it appear that at that time they intended so to do, for at the expiration of their lease they seem to have surrendered them again to the agent. Nor does it appear that the possession of the plaintiff or of her predecessors was at all disturbed until the defendant took the possession of which the plaintiff complains. The above statute does not seem to be limited to parties actually residing within this territory, and to establish a rule that it is so limited would be hold that, where a party settled on the public domain, inclosed a parcel of land for a farm, and made valuable improvements thereon, with the bona fide intention of purchasing the same whenever a title could be procured from the government, he must be constantly present on such land. This would mean that if at any time he should quit actual occupancy, and lease the land, even for causes beyond his control, he would forfeit all his improvements to the next occupant; and it would be diffi cult to confine such a rule to nonresidents, for the law of agency applies equally to residents and nonresidents. Undoubtedly such a rule in regard to possessory rights of school lands in this territory would be too severe, and neither reason nor justice would sustain it. Of course, where a party has reduced such land to his possession, and then vacates the same without the intention of returning, or removes therefrom for a considerable length of time without leaving any one in possession for him, this would at least be prima facie evidence of intention to abandon it, and the next occupant might acquire a good possessory right; but such are not the circumstances of this case. There is no evidence whatever that the plaintiff, or the parties through whom she claims, ever intended to abandon possession of the premises. The law, no doubt, is well settled that to entitle any one to hold such lands by right of prior possession there must be an actual possession and occupation; a possessio pedis; a subjection to the will and control. And such right, as between claimants in good faith, vests in the first occupant, and proceeds from him. It is a property right, which will be protected against any unlawful invasion. The terms "occupation and possession," "possessio pedis," etc., however, are not always used in their re stricted sense. Possession may be, and usually is, evidenced by a substantial inclosure; by cultivation, where the land is fitted for that purpose; or by any appropriate use. After the land has thus been subjected to

the will and dominion of the claimant, there seems to be no sound reason why such claimant may not keep control through an agent or tenant. In Brumagim v. Bradshaw, 39 Cal. 24, Justice Crockett, in delivering the opinion of the court, said: "The whole theory of a possessio pedis rests upon the assumption that the acts of dominion which es tablish it are such open, notorious acts of ownership as usually accompany the possession of real property, and naturally spring from a claim of exclusive dominion." Plume v. Seward, 4 Cal. 95; Coryell v. Cain, 16 Cal. 573; Feirbaugh v. Masterson, 1 Idaho, 135. Under the facts and circumstances, as disclosed by the record, we are of the opinion that the parties through whom plaintiff claims were in the actual occupation and possession of the land in question, and, having a right of property therein, they could lease it, and maintain their possession through their tenant or agent; that, after the same was bequeathed to the plaintiff by last will, her guardian, though a nonresident, could maintain such possession through his agent; and that the plaintiff had the right to bring her action in the courts of this terri tory to recover possession. A father, who is a legal and natural guardian, ordinarily has the right to remove his infant ward to another state, and in such event, the child being powerless, it would seem unreasonable to hold that such property rights would thereby become forfeited. Wood v. Wood, 5 Paige, 595; Holyoke v. Haskins, 5 Pick. 20. Counsel for appellant also contend that the court erred in appointing a guardian ad lltem, since the general guardian prosecuted the case before the commissioner. Section 4317, being section 13 of chapter 13, relating to guardian and ward, (Comp. Laws Utah 1888,) provides: "Nothing contained in this chapter affects or impairs the power of any court to appoint a guardian to defend the interests of any minor interested in any suit or matter pending therein." It is plain from this section that the law in relation to the appointment of a general guardian does not interfere with the power of the court to appoint a guardian ad litem, and the power in this case seems to have been correctly exercised.

There are numerous other errors assigned, but, in view of what has already been said, they are not deemed material. The judg ment of the court below is affirmed. ZANE, C. J., concurs.