11 Mo. 64 | Mo. | 1847
delivered the opinion of the Court.
To the objection that Milburn, not having put in a plea of justification, cannot avail himself of the matters now sought to be used as a defence for him, it may be answered, that by statute, under the general issue, an officer who is sued for an act done by virtue of his office, may give the special matter in evidence.
Whether the giving of a bond under the statute for the release of the boat was a discharge of the lien, is not a necessary question in this case. It may be assumed that the giving of a bond was a discharge of the lien, and yet the principle is not perceived on which the sheriff is held liable in trespass for executing his writ. It is not presumed that the Circuit Court of St. Louis county is not a court of general jurisdiction; its jurisdiction over the subject matter is unquestioned, and yet, for an error in its judgment, shall its officer be mulcted in heavy damages ? Does the law constitute the executive officer of a court an appellate tribunal to revise the proceedings of the court whose minister he is? There is no doubt of the correctness of the position that a person who is no party nor.privy to a judgment may impeach it in- a collateral proceeding. But while third persons may impeach, they shall also be protected»by judgments when they act under them bona fide. The judgments of a court of competent jurisdiction, although obtained by fraud, have never been considered as absolutely void, and therefore all acts performed under them are valid as far as respects third persons. A sheriff who levies an execution under a judgment fraudulently obtained, is not a trespasser; nor can the person who purchases at a sale under such an execution, be compelled to relinguish the property he has purchased. Simms vs. Slo
Judgment reversed,
Separate opinion.
I am satisfied of the propriety of the construction which the majority
It would be a vain task to review the numerous adjudications which have been made, both in England and the United States, upon this point. The most satisfactory exposition I have seen of the liabilities of these ministerial officers, is contained in the opinion of Judge Marcy, in the case of Savacool vs. Boughton, 6 Wend., 173. The doctrine maintained in that case is, that if a mere ministerial officer executes any process, upon the face of which it appears that the court which issued it had not jurisdiction of the subject matter or of the person against whom it is directed, such process will afford him no protection for acts done under it. This view of the subject is more indulgent to the officers than many of the decisions had previously been, and is sustained by the weight of authority both in England and this country.' The case of Wise vs. Withers (3 Cranch, 331) is very properly disregarded, notwithstanding the imposing.authority of the court which decided it.
It cannot be denied, however, that there will be difficulty in applying any general principle or rule which may be established to individual cases. There are two cases reported in Strange which seem to illustrate the distinction taken in Savacool vs. Boughton, as well as any which can be cited. In Hill vs. Bateman, (2 Strange, 710) a warrant was issued of a character which the general powers of the justice warranted, but which the particular circumstances of thát case did not, and it was held to be a justification to the officer. But in Shergold vs. Halloway, (1 Strange, 1002) a justice issued a warrant, against a defendant in a suit for wages, when the law only authorized a summons, and the constable who served the warrant was held liable. In the former case, the particular circumstances which rendered the writ improper, would not be detailed in the writ itself; but in the latter, as the nature of the action would appear on the face of the writ, the constable was bound to take notice of the law which prohibited a writ of that character to issue in such an action.
The case of Watson vs. Watson, (9 Conn. R.) is another recognition of the same general principle asserted in the case of Savacool vs. Bough-
This idea of Judge Daggett, in Watson vs. Watson, that an officer’s individual knowledge of facts, outside of the writ, which show the want of authority in the court to issue it, has been maintained as law by several respectable courts. The cases are referred to by Judge Cowen, in his notes to Philips, (note 694.) The principle is distinctly asserted by Baron Powell, in Gwinne vs. Poole, 2 Lutw., 1560, which is stated at large by Judge Cowen in the note first referred to, and regarded by him as the leading English case on the subject.
Many forcible reasons may suggest themselves against the adoption of such a principle as this, but as I do not rely upon it to fix the responsibility of the sheriff in the present case, it is unnecessary to go into the question.
The case now under consideration may be safely placed upon the same broad and liberal ground maintained in Savacool vs. Boughton, and Watson vs. Watson. The writ, on its face, shows the want of jurisdiction in the court. It is an execution against a boat which had been bonded, and therefore discharged from- the jurisdiction of the court, and these facts appear upon its face. The sheriff is bound to know the law; he is therefore to take notice that he has a valid writ. Process void for want of jurisdiction appearing on its face, cannot protect the officer. If a writ is put into his hands, reciting, that whereas, A has recovered against B a judgment for $100, you are therefore commanded to take B, and hang