The judgment and decree of the district court is therefore in all things affirmed, except in the matter of requiring the appellant to erect a fence as in the decree provided; and, for the purpose of modifying the judgment and decree i that regard, the case is remanded to the district court, with directions to eliminate from said judgment and decree the following: "And erect a substantial fence upon the old line as described in paragraph 9." When said judgment and decree is so modified, it is affirmed as modified. It is further ordered that each party pay one-half of the costs on appeal.

STRAUP, C. J., and MCCARTY, J., concur.

SMITH V. CLARK et al.

No. 2063. Decided January 7, 1910 (106 Pac. 653).

1. PLEADING-COMPLAINT-JOINT DEMURRER. Where a complaint, in an action against several defendants, stated a cause of action against some of them, it was good as against a joint demurrer by all. (Page 121.)

2. FALSE IMPRISONMENT-CIVIL LIABILITY-ACTIONS-INSTRUCTIONS. In an action for false imprisonment, consisting of the arrest of a party under a void warrant of a justice of the peace, an instruction that all persons parties to the issuing, procurement, or service of the warrant would be liable as trespassers for any damages caused thereby, and that all the proceedings were void from the beginning, was erroneous, as convyeing the idea that the person making the complaint in the justice court was liable as a trespasser. (Page 121.)

3. FALSE IMPRISONMENT-CIVIL LIABILITY-ACTIONS-INSTRUCTIONS. Such instruction was erroneous, where the person who made the complaint in the justice court was a party defendant, and the evidence failed to show that he took any part in the subsequent proceedings. (Page 122.)

4. FALSE IMPRISONMENT-CIVIL LIABILITY. A party making and verifying a complaint before a justice is not liable for false imprisonment of the person arrested on a warrant issued by the

justice, where he took no further part in the proceeding, though the complaint stated no offense. (Page 123-133.)

5. FALSE IMPRISONMENT-CIVIL LIABILITY-NATURE AND ELEMENTS— "FALSE IMPRISONMENT." "False imprisonment" is the unlawful arrest and detention of the person of another, with or without a warrant or other process, or an unlawful restraint upon his person, or control over the freedom of his movements by force or threat; and every such force, restraint, or confinement is unlawful, where it is not authorized by law. (Page 126.)

6. FALSE IMPRISONMENT— -CIVIL LIABILITY-ACTIONS-PLEADING.-In an action for false imprisonment, plaintiff must plead that the imprisonment was wrongful or unlawful, or the facts or circumstances showing the unlawfulness thereof. (Page 126.)

- ACTIONS

EVIDENCE.

7. FALSE IMPRISONMENT - CIVIL LIABILITY Where, in an action for false imprisonment, the facts show that plaintiff was restrained or imprisoned by the defendant without a warrant or other process, or by threats or force, or by other facts and circumstances which naturally give rise to the inference or presumption that the restraint or imprisonment was wrongful or unlawful, he makes a prima facie case, and the burden is on defendant to show a legal justification for the imprisonment. (Page 127.)

LIABILITY

8. FALSE IMPRISONMENT CIVIL ACTIONS EVIDENCE. In an action for false imprisonment, where plaintiff, by his own evidence, shows that he was imprisoned as the result of a judicial proceeding and by a warrant, or other legal process issued thereon, he is required, in order to make a prima facie case to show something more than detention or imprisonment. (Page 127.)

9. TRIAL

INSTRUCTIONS-SUFFICIENCY.

Instructions should not be

mere abstract statements of law. (Page 127.)

10. FALSE IMPRISONMENT-CIVIL LIABILILTY-PERSONS LIABLE. The rule that every imprisonment of a man is prima facie a trespass, and in an action to recover therefor, if the imprisonment is proved or admitted, the burden of justifying it is on the defendant, does not apply to the person who made the complaint against the party imprisoned before the justice, who issued the warrant and caused his arrest, where he took no other part in the proceedings. (Page 128.)

11. MALICIOUS PROSECUTION-CIVIL LIABILITY-WANT OF PROBABLE CAUSE RESULT OF PROSECUTION. Whether or not the discharge by a magistrate of one accused of crime is evidence of want of probable cause for his prosecution depends on the proceeding had before the magistrate; and where he was discharged without a hearing, and there were no circumstances which in themselves indicated a want of probable cause, this discharge, although proof of the

unsuccessful termination of the prosecution, was no proof in a civil action for malicious prosecution of want of probable cause. (Page 131.)

12. MALICIOUS

PROSECUTION-CIVIL

LIABILITY-ACTIONS-EVIDENCE. In an action for malicious prosecution of plaintiff on a charge of larceny of brick, the record in a justice court of an action of replevin between the same parties, holding that the defendant in the malicious prosecution action was the owner of the brick, and entitled to possession of them at the time they were taken by the plaintiff, was admissible, as tending to show probable cause for the prosecution. (Page 131.)

APPEAL from District Court, Fourth District; Hon. J. E. Booth, Judge.

ers.

Action by A. O. Smith, Jr., against H. G. Clark and oth

Judgment for plaintiff. Defendant Barry appeals.

REVERSED AND REMANDED.

W. E. Rydalch for appellant.

J. H. McDonald for respondent.

STRAUP, C. J.

This is an action for false imprisonment and malicious prosecution, based upon the following transactions: The plaintiff and Barry had a controversy with respect to the ownership and the right of possession of some adobe brick. A Mr. Stewart, who made the brick from clay belonging to the plaintiff, had agreed to pay plaintiff a royalty. Barry had acquired an interest in the brick, and had taken, without objection, a sufficient number of them to build a house. When he attempted to take several more loads to build an outhouse a dispute arose between him and the plaintiff as to the payment of the royalty. The plaintiff contended that the full amount of the royalty had not been paid, and forbade Barry taking more brick until the royalty was paid.

Barry, on the other hand, contended that the royalty had been paid in full, and that the brick which he was about to take belonged to him. The brick were in a public street. The plaintiff, claiming the right to hold them until the royalty was paid, ordered Barry away, swore at him, and threatened to have him arrested if he took them without paying the royalty. Barry thereupon withdrew and departed. There after he went before a justice of the peace, and told him the facts of the controversy. The justice drew a complaint which was entitled in the justice court for Myton Precinct, County of Wasatch, State of Utah, before H. G. Clark, justice of the peace, and was styled "The State of Utah, Plaintiff, v. A. O. Smith, Jr.," and another, as defendants, "Complaint for unlawfully holding the property of another." The unlawful acts alleged were that the defendants "on or about the 14th day of November, 1907, did unlawfully retain and hold, and have held ever since, one quantity of adobe brick, the property of said D. Barry. The said adobe brick being in the public highway, to-wit," a street in Myton. The complaint was signed and verified by Barry, the appellant, and was filed before the justice. The justice issued a warrant of arrest, and delivered it for service to the defendant, Ira Calvert, a special officer appointed by the justice. The warrant recited that a complaint on oath had been made by Barry before the justice "that the offense of detaining property of D. Barry has been committed, and accusing A. O. Smith, Jr.," and another, and commanded the officer to arrest the accused and bring them before the justice. By virtue of it the plaintiff was arrested by such officer and brought before the justice. He filed a motion for a change of venue. The order granting the change recites that the "parties concerned could not agree as to the nearest justice, so this court or dered the case to come up before Justice F. L. Clegg, of Heber Precinct, Heber (Wasatch County) Utah. Court ap pointed W. H. Murdock as constable to take charge of prisoners, and take them with due dispatch to above named justice." The plaintiff was taken before the justice at Heber,

who dismissed the case and discharged the plaintiff. Upon plaintiff's return to Myton, and in the nighttime, he removed the brick from the street, and placed them on a lot claimed to be owned by him. Barry, learning of such fact, again went before the justice of the peace, Clark, and told him of it. He and the justice viewed the premises to ascertain whether the brick had been removed from the street and placed on the lot. Finding such to be the fact, the justice drew another complaint, charging the plaintiff with grand larceny. That complaint is not in the record. It, however, is conceded by both parties that the offense of grand larceny was sufficiently charged in the complaint, and that it was signed by Barry, and was filed before the justice, and that it was induced by plaintiff's acts in removing the brick from the street, and withholding them from Barry. A warrant of arrest was issued by the justice upon that complaint. The plaintiff was arrested on such charge, and again brought be fore the justice. On the day the case was set for hearing the county attorney failed to appear. The case was therefore dismissed by the justice, and the plaintiff discharged without a hearing.

The complaint in this action is on two counts: The first, for false imprisonment, based on the first proceedings before the justice, wherein the plaintiff was charged with, and arrested for, "unlawfully holding and detaining" property belonging to Barry; the second, for malicious prosecution, based on the second proceedings, wherein the plaintiff was charged with, and arrested for, grand larceny. The action was brought against H. G. Clark, the justice of the peace, H. Calvert, and E. M. Jones, sureties on his official bond, Ira Calvert, the officer who served the warrants, and D. Barry, who made the complaints before the justice. The case was tried to the court and a jury. A verdict was rendered against Clark, the justice, for one hundred dollars on the first cause of action, and one hundred dollars on the second cause of action, and against the defendant Barry for one hundred and fifty dollars on the first cause of action, and for