Grimke, J., delivered the opinion of the whole court, except Bay, J., absent. The defendants at the trial, attempted to justify the arrest and imprisonment, but failed. The warrant which had issued nine months before the arrest, was stale and insufficient. It does not appear that the informant, or prosecutor, required it to be executed after such a lapse of time.
All the circumstances taken together, shew, that the justice of peace, (Blocker,) who appears to have been the moving cause of the arrest and imprisonment, was actuated by malice, in directing the constable to proceed on the stale warrant, when no recent application had been made to push, or renew it; and the constable, (Malone,) even if the warrant would otherwise have been sufficient for his justification, can claim no protection from it, because he abused his authority, by which he became a trespasser ah initio.
The defendants both appear to have acted with malice, and without any justifiable cause, and there is. no good reason why a new trial should be granted.