97 Mass. 524 | Mass. | 1867
The execution, upon which the plaintiff was arrested and committed, was regular in form, and bore the affidavit and certificate of a magistrate as provided by the Gen. Sts. c. 124, § 5. Primé facie, it is a complete defence to the officers acting in accordance with its directions. The defect relied on by the plaintiff to deprive them of its protection is the fact, now admitted, that the magistrate who made the certificate was the attorney of record of the party in whose favor the execution issued.
It is settled law that an officer is protected by his precept, if the court or magistrate had authority such as the precept assumes. It is not his duty to inquire into the particular facts of the case, if the general power appear and the process be regular. He cannot be affected by any irregularity occurring prior to the issue of his precept, nor by the existence of any fact which deprives the court or magistrate of jurisdiction in that particular case, provided the defect be not disclosed by the precept itself, nor known to the officer. Even if the defect be one which renders the precept void in its operation between the parties, or for the transfer of property, yet it will not subject the officer to liability as a trespasser. See Sandford v. Nichols, 13 Mass. 286, and cases cited to this point by the defendants.
The cases relied upon by the plaintiff do not support any doctrine inconsistent with this. The decision in Pierce v. Atwood, 13 Mass. 324, 344, is put expressly upon the ground that the want of authority in the magistrate appeared from the warrant itself. In Fisher v. McGirr, 1 Gray, 45, the want of jurisdiction arose from the very character of the ■ proceeding, which the warrant disclosed. In Piper v. Pearson, 2 Gray, 120, the officer was held liable because his warrant did not show affirmatively an apparent jurisdiction, there being none in fact, and the burden being upon him to establish his justification.
Where the proceeding is, in its nature, one in which the magistrate nos no right to exercise the authority under which the officer assumes to act, he is held responsible although acting in good faith; because in such case the want of authority is disclosed upon the face of the precept. But where the want of
The plaintiff offered no evidence to show that the defendants had actual knowledge that the certifying magistrate was disqualified ; not deeming it to be .material whether they knew it or not; and the testimony of the defendant Ingalls, as reported, would not warrant the jury in finding such knowledge. He is not entitled now to have a jury to determine that question.
Upon another ground we think the verdict must stand. The arrest was in accordance with the authority and directions of the precept. It is a proper mode of serving an execution, unless the statute (Gen. Sts. c. 124, § 5) restricts the right. The restriction applies to executions issued for debt or damages in a civil action, except in actions of tort.” Perhaps the term “ civil action ” might be held to embrace suits for divorce. But the restriction clearly does not extend to all cases that might be termed “ civil actions.” It is limited to such only as are for the recovery of “ debt or damages.” This limitation, and the exception of “ actions of tort,” which follows, indicate that the restriction is not general, and was not intended to apply to such warrants of the court as may issue to enforce its decrees in special proceedings like this of libel for divorce. The allowance of alimony, or the award to the wife of her own or a part of the husband’s estate upon granting a divorce, is not a debt nor damages, in the sense of the statute. No affidavit and certificate of a magistrate were necessary; and therefore the exceptions must be overruled.
