In order to justify acts done under a search-warrant it must have been returned to court; otherwise the acts become a trespass ab initio. In an action for libel the defendant, under a general denial, may avail himself of the fact that the article complained of was a privileged communication. To show that he had reasonable cause for making the complaint against the plaintiff upon which the search-warrant was issued, the defendant testified that he had been informed by P that he, P, was in company with the plaintiff when the latter stole the defendant's property. He offered, also, to show that other persons had lost certain articles, and that P had told them that he, P, was with the plaintiff when the latter stole such articles. Held that this evidence raised collateral issues and was properly rejected. H, a witness for the plaintiff, testified that he asked P why he, P, had made such statements about the plaintiff to the defendant, and that P replied that he had made them because the defendant had offered him $10. Held that this testimony was inadmissible, especially in the absence of any evidence tending to show that the defendant knew of P's motive in making such statements.
ANDREWS, C. J.
The court charged the jury that the warrant, which was made a part of the complaint, did not furnish any justification for the acts complained of. This was correct. The warrant had never been returned. The officer omitted to return it by the direction of the defendant. For this reason the acts done became a trespass ab initio. Dehm v. Hinman, 56 Conn. 320, 322; Williams v. Ives, 25 id. 568; Pratt v. Pond, 45 id. 386; Toby v. Reed, 9 id. 216; Wright v. Marvin, 59 Vt. 437; Monroe v. Merrill, 6 Gray, 238; Buller's Nisi Prius, 23. "If a sheriff have not returned a writ which ought to have been returned, he becomes, although this be only a nonfeasance, a trespasser ab initio, as to everything which has been done under the writ." 6 Bacon's Abridgment, Trespass, B.
The warrant being void for this reason, there is no occasion to discuss whether or not it was void for the reason that it was not signed by the justice to whom the complaint was made.
The complaint alleged that the libelous writing had been published to Henry G. Scott and Frank O. Peck, citizens of Watertown. On the trial it appeared that Scott was a deputy-sheriff and Peck a constable, and that they had the warrant for service. Thereupon the defendant claimed and asked the court to rule that as to these persons the complaint and warrant was a privileged communication. The court refused so to rule, on the ground that the defendant could not avail himself of a privileged communication, as it was not pleaded. This was error. Atwater v. Morning News Co., 67 Conn. 504, 510.
For the purpose of showing that he had reasonable cause for making the complaint, the defendant testified that before he made it he had been told by one Patterson that he, Paterson, was in company with Anderson when Anderson stole the things named in the complaint. He then sought to show by the testimony of other persons that they had lost articles of property, and that Patterson had told them that he had been in company with Anderson when Anderson had stolen such articles. Upon objection this evidence was rejected by the court. This was correct. The evidence would have raised issues not proper in this case.
The plaintiff introduced Wallace Hayes as a witness, who testified that he asked the said Patterson "why he made those statements to Cowles (the defendant) about John Anderson, and that Patterson replied that he made them because Cowles offered $10." This evidence was objected to, but the court admitted it. The testimony was apparently offered to repel the defendant's claim that he had acted in good faith in making the complaint, and to show that he had no reason to believe the statements of Patterson to be true. The plaintiff sought to show that Patterson made the statements about Anderson to obtain the $10, rather than because the statements were true. In such case the defendant could not have relied upon them when he made the complaint. Granting that to show Patterson's motive his own declarations were the best evidence, still there was no evidence tending to show that the defendant was aware that Patterson was acting from such motive; and without bringing the knowledge of Patterson's motive home to the defendant, his good faith in making the complaint could not be affected. We think this testimony of Mr. Hayes was inadmissible.