Harman v. Brotherson

By the Court, Bronson, Ch. J.

Although Dexter swears positively at the outset that “he has a good cause of action” against Brotherson, it is highly probable from what follows that he was only able to speak of the alleged negligence, which was *540 the gist of the action, upon hearsay; and “ information and belief” as to the most material part of the case are not enough in an affidavit to hold to bail. If Brotherson had moved the court, the order to hold to bail would have been revoked. But it is a very different question whether the officer who made the order can be treated as a trespasser. It was a case where, upon p'roper proof, an order to hold to bail might be made. A capias and an affidavit were laid before the officer—the affidavit making out a fair case for the exercise of his judgment. (See Matter of Faulkner, 4 Hill, 598, 602) He had jurisdiction of the matter, and acted judicially in making the order; and it is entirely clear that he cannot be made answerable as a trespasser for an error in judgment. (Mills v. Collett, 6 Bing. 85; Stewart v. Hawley, 21 Wendell, 552; Brittain v. Kinnaird, 1 Brod. & Bing. 432; Tompkins v. Sands, 8 Wendell, 462; Easton v. Calendar, 11 id. 90; The People v. Collins, 19 id. 56.) The plaintiff might have been relieved on motion from the effect of the order; but he cannot maintain an action against the officer.

As the judgment is entire against both of the defendants, and is clearly erroneous as to one of them, it must be reversed in toto. (Sheldon v. Quinlen, 5 Hill, 441.) Whether the attorney is liable is a question which was not discussed at the bar, and will not, therefore, be considered.

Judgment reversed.