#### STATE *vs.*BAILY KIRBY.

ÍÍ a known officer, who ha3 two warrants in his hands, the one legal and the other illegal, declare at the time of arrest that he makes the arrest — .. by virtue of the illegal warrant, yet this is not a false imprisonment; for the lawfulness of the arrest does not depend on what he declares, but upon the sufficiency of the authority which he then has.

When an arrest is made by one, not a known officer, he is bound to make known, at the time, the warrant under which he arrests.

A warrant from a magistrate in a civil case, upon which bail is not required, is in law but a summons, and gives no authority to arrest.

This was an indictment tried before his Honor Judge Bailey, at the Spring Term, 1842, of Macon Superior Court of Law, when the defendant was convicted. The indictment contained two counts; the first was for false imprisonment, the second for an, assault and battery on Barnard Long. *202It was proved that the defendant, a constable, at the time he arrested the prosecutor Long', had in his possession a warrant properly authenticated in favor of one Matthis against the said Long; and that’ he had in his possession two or three other warrants against the said Long in favor oí Allison and Bryson and in favor of one Martin Adams, which were not signed by a magistrate, and on which he had no right to act. It was also proved, that, at the time the defendant arrested Long, he said “You are my prisoner upon bail warrants in my hands in favor of Allison.and Bryson and Martin Adams. I also have a sealed \Varrant in my hands against you in favor of Matthis.” The prosecutor Was held in custody until he settled the claims held against him by Adams and Allison and Bryson, but nothing further was said about the Matthis warrant, nor was he asked or required to settle the Matthis claim at that time.. His Honor charged the Jury that the1 warrant in favor of Matthis was a valid warrant, upon which the defendant had a right to arrest the prosecutor: but that, if the defendant did not arrest Long upon that warrant nor intended- *to*arrest him upon it, but arrested him and held him in custody *exclusively*upon the warrants, not signed by a magistrate, in favor of Adams and Allison and Bryson, he was guilty as charged in the bill of indictment: that if he arrested him upon the Matthis warrant, which was legal, as well as upon the other warrants, then he was justified, although the other warrants turned out to be illegal.

The jury having found the defendant guilty; a motion was made for a new trial oh the ground of misdirection by the court. This motion was overruled, and, judgment being rendered against the defendant, he appealed to the Supreme Court.

*Attorney General*for the State.

No counsel in this Court for the defendant.

Gaston J.

The case does not state explicitly that the defendant was a *known*constable, nor that the warrant in favor of Matthis was one on which bail was required. We *203feel ourselves bound, however, to understand that the facts are so, because he is described in the case generally as “a constable,” and the warrant was assumed by the judge to be one, which gave authority to arrest the prosecutor. Under this view of the case, we hold that there was error in the instructions to the jury. If a known officer, who has two warrants in his hands, the one legal and the other illegal, declare at the time of arrest that he makes the arrest by virtue of the illegal warrant, that is not a false imprisonment, for the lawfulness of the arrest does not depend upon what he declares, but upon the sufficiency of the authority which he then has. *Grenville*v *College of*Physicians, 12 Mod. 386. *Crowther*v *Ramsbollom*& *al. 7*Term Rep. 655. If the defendant, indeed, were not a known officer, or if the warrant of Matthis was not one, on which bail was required, the defendant, under the circumstances disclosed by the testimony, would be clearly guilty of the offence charged. When an arrest is made by one not a known officer, he is bound at the time to make known the warrant under which he arrests; and a warrant from a magistrate in a civil case,, upon which bail has not been required, is in law but a summons, and gives no authority to arrest.

Tliis opinion must be certified to the Court below with instructions to set aside the verdict and award a new trial.

Ter Curiam, New trial awarded,