Batchelder v. Whitcher

| Superior Court of New Hampshire | Jul 15, 1838

Upham, J.

In the trial of this case the only question submitted to the jury was, whether the warrant of distress directed to the clerk, on which the plaintiffs property was seized, was under seal or not.

The jury have found by their verdict that it was not under seal; and the question arises, whether the defendant is liable in trespass for acts done under such a warrant issued by him ?

It has been contended that issuing a warrant, by a militia officer, under the provisions of the statute of July 6th, 1833, in amendment of an act imposing fines for neglect of military *242duty, is a judicial act, and that the officer is not liable for mistake as to the law, or the issue of erroneous process, in cases within his jurisdiction.

If the issuing of the warrant was a judicial act, it is clear that trespass cannot be maintained ; but we think the act was purely ministerial. The officer is bound to go purely by his record. If delinquencies of individuals in his company have been duly entered up, and no sufficient excuse has been rendered within fifteen days, a warrant issues of course. The officer is called to the exercise of no judicial discretion or responsibility upon the subject.

The issuing of an execution by a magistrate, after judgment has been rendered by him, is holden to be merely a ministerial duty ; aud if issued prematurely, or if an alias be issued when the first execution has been returned satisfied, the magistrate is holden liable in trespass for any seizure under such executions. 10 Mass. 356, Briggs vs. Wardwell ; 13 Mass. 286, Sandford vs. Nichols ; 6 Wend. 397, Lewis vs. Palmer & als.

The issuing of a warrant against military and naval officers, charged with the disbursement of the public monies, who shall fail to pay and settle their accounts at the treasury department within the prescribed time, is also holden to be merely a ministerial act. 2 Brock. 447, ex parte Randolph.

But it is contended, that whatever may have been the character of the act of the officer, in issuing his warrant, still, if he issues a void precept, he is not responsible for any proceedings under it.

We have had more difficulty upon this point than the other. The warrant without a seal is void as a warrant, but it is not necessarily mere blank paper. If the commanding officer issues a paper, purporting to be a warrant, but which is not under seal, directing the clerk of the company to seize the property, or arrest the body of a delinquent soldier, the clerk is under no obligation to obey it as a precept. It is a *243command, however, and is as imperative at least as any verbal command, or request made to an individual to commit a trespass on the property of another. Neither command need be obeyed ; but if the trespass be committed in either case, the person directing it and the agent should alike be holden liable.

We see no way in which the commanding officer in this case can avoid the application of this principle. He is the director of the act done, and on him should rest the responsibility rather than on his subordinate officer, who has far less means of judging as to defective forms of process, or as to the rules of law limiting the authority of the commanding officer.

Judgment on the verdict.