Batchelder v. Currier
45 N.H. 460
N.H.
1864
Check Treatment
Nesmith, J.

This action was trespass. The defendant justifies the arrest of plaintiff, alleging under his plea and brief statement, that, in doing what he was charged with, he was acting as an officer, and wa clothed with sufficient legal process and ought to be fully protecte d thereby. It may be regarded as well settled doctrine, that, when the authority, under which an officer acts,'is voidable only, he may justify under it, but not when the authority is void. State v. Weed, 21 N. H. 262; Nichols v. Thomas, 4 Mass. 232; Sanford v. Nichols, 13 Mass. 286; Wilmarth v. Burt, 7 Metcalf, 260.

The question is, in this case, whether the matter set forth by the defendant establishes a sufficient legal protection for the defendant. Where trespass is justified under civil or criminal process, whether the matter in defence be specially pleaded, or given in evidence under a brief statement filed with the general issue, the defendant must prove every material fact of the authority under which he justifies. 2 Greenl. Evi. sec. 629. And the inquiry is, whether the officer here was protected, either by the verbal order or the written authority of the magistrate, who officiated in the trial of this case. Now, where a court transcends the limits prescribed by the law, assuming to act where it has no jurisdiction, its decisions will be utterly void, and entitled to no consideration, either as evidence or otherwise; and generally it must appear affirmatively, that the court had jurisdiction over the subject matter, as well as the person. Smith v. Knowlton, 11 N. H. 191; Kittredge v. Emerson, 15 N. H. 227; Sanborn v. Fellows, 22 N. H. 473; State v. *464Richmond, 26 N. H. 232; Bigelow v. Stearns, 19 Johnson, 39; 3 Cowen’s Phillips, 990, and authorities in note, and 1003; Allen v. Gray, 11 Conn. 95; 9 Cowen, 227; 1 Chitty’s Crim. Law, 61; 17 Pick. 252; Smith v. Rice, 11 Mass. 507.

So where a statute prohibits jurisdiction, or where a prohibition is necessarily implied by its being vested exclusively in another tribunal,no consent can give jurisdiction. People v. White, 24 Wendell, 520; Heyer v. Burger, 1 Hoffman Chanc., 120; Blatchley v. Moser, 15 Wendell, 215. In Massachusetts, by the provisions of chapter 314, being a statute made and enacted A. D. 1850, the jurisdiction of justices of the peace over certain criminal cases was taken away, and the same was transferred to new officers called trial justices. Justices of the peace had only authority left to them to receive complaints, and issue warrants for the apprehension of the alleged criminals, returnable in all cases before any trial justice in the same county. The case, Stetson v. Packer & als. 7 Cush. 564, was an action of trespass against the officer and his assistants for violating the provisions of that act. The court in their decision say, that, after the passage of the aforesaid act, the issuing of a warrant by a justice of the peace, directing an arrest of an individual, and requiring the party to be taken before another justice of the peace for examination or trial, would be an act unauthorized by law, and the process on its face would show such want of jurisdiction, that, if -in execution thereof, the party were actually arrested and held for trial before a justice of the peace, such officer, as well as the magistrate who issued such warrant, would be liable therefor in an action of trespass. .Judgment was rendered against the officer in the aforesaid case. In principle, the facts of the case before us are not materially variant. Piper v. Pearson, 2 Gray, 121.

Chapter 835 of the Pamphlet Laws, established Police Courts in the town of Concord. By virtue of sec. 16 of this chapter, jurisdiction was given to said-court of all offences committed in the town of Concord, and the trial of all other offences, whereof a justice before had jurisdiction ; and all warrants .issued by said court, "or by any justice of the peace icithin said city shall be made returnable, and shall be returned, before said police court.” By virtue of this statute, it would seem that the police court in Concord had full control over the trial of such offences, which before had been there tried by justices of the peace. Any justice of the peace had power to receive the complaint, and to issue a warrant founded thereon, but it must be made returnable and actually returned before the police court, or, perhaps, to some magistrate in the county residing without the limits of the city of 'Concord. It may, therefore, be conceded that any magistrate in Concord may have entertained the complaint and may properly have issued the warrant,but should not have made it returnable before himself as a magistrate, or before any other justice of the peace in the city of Concord, but should have made it returnable for ¿dal before the police court. And, therefore, such magistrate being prohibited from doing what he undertook to do, he would confer no power upon the officer by committing to him a *465void precept. The officer had no legal authority to arrest the plaintiff, nor to convey him before the magistrate, as he was ordered, and became a trespasser by the arrest.

The defendant made his return on the warrant, setting forth his acts, done, and this return becomes evidence in the case, which the defendant cannot contradict. The return, connected with the precept itself, shows that defendant has violated the law, and stands without justification. When the defendant says that he returned the plaintiff before Justice Badger at his office in Concord, he in effect makes the declaration, that he returned him before a court that had then no jurisdiction over the plaintiff’s person or offence. In Parker v. Walrod, 16 Wendell, 518, Chancellor Walworth says, that a process of a court of inferior jurisdiction will not protect the officer, if the want of jurisdiction appears upon the face of the process, and, continues he, "I apprehend the same principle may be applied to a case, where the want of jurisdiction arises from a fact of public notoriety, which is legally presumed to be within the knowledge of the officer, as well as others, and of which he is therefore bound to take notice.” The fact, that the charter of Concord had conferred upon the police court of the city of Concord exclusive jurisdiction over this class of criminal offences, was a matter of public notoriety, long known, or presumed to be known, more especially to the professional men or officers of the law, who had long before resided in the city. It was a fact, of which both the magistrate and officer, who participated in these proceedings, would be reasonably bound to take notice. The police court in Concord had been in existence about twelve years before this case occurred. Hence it would be fairly presumed, that a well established practice, controlling cases of this kind, must have been familiar to the legal profession, as well as to the ministerial officers generally employed by them.

We are, therefore, of the opinion that the oral order and the mittimus of the magistrate were void and conferred no protection or jurisdiction upon the officer. The proceedings of the magistrate are deemed to be coram non judice. Piper v. Pearson, 2 Gray, 122, ante; Clarke & al. v. May & al., Idem. 412; Sullivan v. Jones & al., Id. 572; Elder v. Dwight Manf. Co., 4 Gray, 201. It must appear from the evidence, that the offence was committed within the jurisdiction of the convicting magistrate. 1 Term Reports, 241; 13 East, 139; 14 East 67; 7 Taunton, 33. Where one is arrested under process wholly void, trespass will lie. Groome v. Forrester, 5 Maule & Selwyn, 314; Nichols v. Thomas, 4 Mass. 232; Fisher v. McGirr, 1 Gray, 46. The question of principal and agent does not arise here, for both Haynes and Currier must equally be regarded as principals and as trespassers. All who aided, abetted, or in any way participated in the wrong done to the plaintiff are principals, and each is liable for the wrongful acts of the other. 1 Chitty’s Pleadings, 91; 5 Denio, 95; 2 Comstock, 517; Morgan v. Varick, 8 Wend., 587; 12 Wend., 39.

Upon a review of the whole case, we think there should be

Judgment on the verdict.