Adle v. Sherwood

3 Whart. 481 | Pa. | 1838

^Rogers, J.

delivered the opinion of the Court.

A retrospective law, which does not impair the obligation of a contract, nor is in its nature ex post facto, is constitutional. This has been decided in repeated cases. On this point it is sufficient to refer to the authorities in our own books. Underwood v. Lilly, (10 Serg. & Rawle, 101,) Tate and Wife v. Stoolfoos and Others, (16 Serg. & Rawle, 37,) Mercer v. Watson, (1 Watts, 330,) and Satterlee v. Mathewson, (16 Serg. & Rawle, 169.)* The legislature are in the constant practice of passing confirmatory acts; and laws remedying the inconvenience which arises from the loss or destruction of records, are of frequent occurrence. They neither impair contracts nor are they ex post facto ; and when the power which is vested in the legislature is cautiously exercised, they undoubtedly promote the ends of justice. -But it is said, that the whole act was not certified; but as the act related to several distinct subjects, and so much as pertains to the matter in point was certified in due form, we deem it sufficient. It is immaterial, so far as the first question is involved, that the plan on a reduced scale, was not entered on the record. This would have rendered a certified copy of the plan, evidence, but I cannot perceive any reason arising from the omission, why the act of the legislature, which supplies the loss of the record, should not be allowed to be laid before the jury. The objection, if any, should have been rather to the effect of the act, than to its admissibility in evidence.

But granting that the act was properly rejected, yet the Court erred in their direction to the jury.

It is a general rule of pleading, that when a-party justifies a trespass, under an authority given, he must show that authority. There is a difference, however, in this respect, where the justification is under judicial process, between the party to a cause and a mere stranger, and the officer who executes the process of the Court. The party to the cause, or a mere stranger, must set forth in their plea, the judgment as well as the writ; but the officer need only show the writ under which he acted, for he is bound to execute the process of the Court, having competent jurisdiction, without inquiring after the judgments. Ministers of justice, executive as well as judicial, in the execution of their offices, are under the peculiar protection of the law. Burton v. Cole, (Carth. 443); Turner v. Pringle, (1 Lev. 95); Cole v. Mitchell, (3 Lev. 20). Here the order was issued by a Court, having jurisdiction of the subject-matter. The officer was bound to look to the order. It was not his province to decide upon its legality but to obey its directions; under the penalty of an indictment. That a report was made by the commissioners to the Quarter Sessions, in conformity to the directions of the act and confirmed by the Court, and that it was lost or destroyed, would also seem not to admit of 'doubt. At any rate this was a matter which was inquired into, before the Court issued ^*the order; and even if they were mistaken, the mistake cannot be corrected in a suit against the officer, who in pursuance of his duty, executed the process.

Judgment reversed, and a venire de novo awarded.

Cited, by Counsel, 10 Watts, 65 ; 2 Watts & Sergeant, 40; 5 Id. 172; 5 Barr, 148; 9 Harris, 245; 12 Id. 113; 3 Wright, 158; 7 Id. 513; 2 Parsons, 422.

Cited by the Court, 2 Barr, 256 ; 7 P. F. Smith, 438.

* See also 9 Casey, 98 ; 12 Id. 56 ; 2 P. F. Smith, 477.