| N.Y. Sup. Ct. | Jul 15, 1830
By the Court,
What an officer is required to shew to justify himself in the execution of process, is not very clearly settled. There is considerable contrariety of authority on the subject. Where it appears on the face of the process that the court or magistrate that issued it had not jurisdiction of the subject matter of the suit, or of the person of the party against whom it is directed, it is void, not only as respects the court or magistrate and the parly at whose instance it is sued out, but it affords no protection to the officer who has acted under.it.
Where the court issuing the process has general jurisdictian, and the process is regular, on its face, the officer is not, though the party may, b^affected by an irregularity in the proceedings. Where a judgment is vacated for an regularity, the party is liable for the acts done under it; but the officer has a protection by reason of his regular writ. 1 Lev. 95. 1 Sid. 272. 1 Strange, 509.
More strictness has been required in justifying under process of courts of limited jurisdiction. Many cases may be found wherein it is stated generally that when an inferior court exceeds its jurisdiction, its proceedings are entirely void, and afford no protection to the court, the party, or the officer who has executed its process.
This proposition is undoubtedly true in its largest sense where the proceedings are coram non judice, and the process by which the officer seeks to make out his justification shews that the court had not jurisdiction; but I apprehend that it should be qualified where the subject matter of the suit is within the jurisdiction of the court, and the alleged defect of' jurisdiction arises from some other cause. 1 A court may have jurisdiction of the subject matter, but not of the person of the parties. If it does not acquire the latter, its proceedings derive no validity from the former. \A justice of the peace who
A distinction has long existed in cases of this kind between the court which exceeds its jurisdiction and the party at whose instance it takes place, and .a mere ministerial officer who executes the process issued without authority. This prevails, as we have seen, where a judgment has been obtained in a court of general jurisdiction which is subsequently set aside for irregularity. The officer has a protection that the party has not, and that whether the court from which the process issues is a court of general or limited jurisdiction. The right, of a mere ministerial officer to justify under his process where the court or party cannot, was considered but not settled in the case of Smith v. Bancker and others, decided in 1734. This case is found in 2 Strange, 993, 2 Barnard, 331, Cum. 89, 127, Cases tempt. Hardwicke, 62, 2 Kelyn. 144, pl. 123. The reports agree as to the facts, but not as to some points in the opinion of the court. Process was issued from the chancellor’s court of Oxford against Smith, who was arrested and committed to jail. The proceedings were instituted without proving what was requisite to give the court jurisdiction. The plaintiff who procured the proceedings, the vice chancellor who held the court, and the officers who executed the process, were all sued by the defendant Smith for false imprisonment. They united in their plea of justification and were all pronounced guilty. Sir John Strange makes the court say that some of the defendants, namely, the officer and gaoler, might have been excused if they had justified without the plaintiff and vice
In Hill v. Bateman, 2 Strange, 710, the distinction in favor of the officer is clearly taken. The plaintiff had been fined under the game laws, and was immediately sent to bridewell, without any attempt to levy the penalty upon his goods. This the justice had not a right to do, and was held liable for the imprisonment; but the constable was justified, because the matter was within the jurisdiction of the justice. I understand by this case that the justice had not authority, or in other words, had not jurisdiction, to issue process to commit the party until he had attempted to levy the fine upon his goods; but that after he had made that attempt without success, he had authority to commit him. The process, though unauthorizec&y the circumstances of the case, would, under other circumstances, have been proper. The issuing of the process was a matter within the justice’s jurisdiction. This was enough for the officer’s justification. It is further said in this case, if the justice makes a warrant which is plainly out of his jurisdiction, it is no justification. This I understand to mean a warrant which appears on its face to be such as the justice could in no case issue.
The views I have of this case are confirmed by that of Shergold v. Holloway, 2 Strange, 1002. There the justice issued a warrant on a complaint for not paying wages, and the defendant, a constable, arrested Shergold on it. He was sued for this arrest. The court said the justice had no authority in any instance to proceed by warrant; a summons being the only process. The constable could not therefore justify ; he was presumed to know that under no circumstances could a warrant be issued in such a case; therefore the court say there was “no pretence for such a jurisdiction.” This decision would doubtless have been different if it had
Lord Kenyon says, in the case of The Sing v. Danser, 6 T. R. 242, “ a distinction indeed has been made with respect to the persons against whom an action may be brought for taking the defendant’s goods in execution by virtue of the process of an inferior court, where the cause of action does not arise within its jurisdiction; the plaintiff in the cause being considered a trespasser, but not the officer of the court.” A court of admiralty, I apprehend, will not be considered a court of general jurisdiction. In relation to its proceedings, Buller, J., says, in the case of Ladbroke v. Crickett, 2 T. R. 653, if upon their face “the court had jurisdiction, the officer was bound to execute the process, and could not examine into the foundation of them; and that will protect him.”
There are several cases in our own reports which are supposed to militate against the distinction recognized in the foregoing cases; I apprehend, however, that most of them may be reconciled with those decisions which support it. The decision in the case of Borden v. Fitch, 15 Johns. R. 121, was, that a court must not only have jurisdiction of the subject matter, but of the person of the parties, to render its
The case of Cable v. Cooper, (15 Johns. Rep. 152,) deserves a more minute consideration. One Brown was committed on a ca. sa. to the custody of the defendant, who was sheriff of Oneida county, and discharged by a supreme court commissioner under the habeas corpus act. The defendant, when prosecuted for the escape of Brown, offered to justify by shewing the discharge; but a majority of the court decided that the proceedings under the habeas corpus act before the commissioner were coram non judice and therefore void. The principle of this decision is, that the power to discharge under that act does not apply to the case of a prisoner who “is convict or in execution by legal process[Brown was in execution by legal process, and this was well known to the defendant, for he had the ca. sa. and held the prisoner. Whatever appeared upon the face of the discharge, he knew, if he rightly understood the powers of the commissioner, it was no authority for him to release Brown. If the discharge did not relate to the imprisonment on the ca. sa., it was certainly no authority to release him from confinement thereon ; and if it did relate to that imprisonment, then it shewed on its face a want of jurisdiction in the officer who granted it; for he could not discharge a person in execution by legal process. Again, the sheriff who held the prisoner might well be regarded as a party to the proceeding before the commissioner for the discharge; for the habeas corpus must have been directed to him, and his return thereto shewed the true cause of Brown’s detention.
The cases of Smilh v. Shaw, 12 Johns. R. 257, and Suydam & Wyckoff v. Keys, 13 id. 444, have a tendency to obliterate or at least confound the distinction which the other cases seem to me to raise in favor of the officer. I am free
It seems to me somewhat difficult to reconcile the decision in the case of Suydam & Wyckoff v. Keys, with the doctrine I am endeavoring to establish, or with the principles of some other cases which have been decided here. The defendant was a collector of a tax which had been voted by a school district in Orange county, as assessed by the trustees. They had authority<ato assess, but were confined in their assessments to the resident inhabitants oí the district. The plaintiffs having property in the district, but actually resident in New-York, were included among the persons assessed, and designated on the warrant issued to the defendant as inhabitants of the district. He took their property by virtue of this warrant, and was held liable in an action of trespass. It appears to me the defendant, acting merely as a ministerial officer, should have been allowed the protection of his warrant, which did not shew upon the face of it an excess or want of jurisdiction in the trustees. I cannot distinguish this case from a whole class of cases, beginning with the earliest reports and coming down to this, holding that such a warrant is a protection to the officer executing it, unless it is to be distinguished from cases otherwise similar, by the fact that the want of jurisdiction in the trustees to make the
I find still greater difficulty in reconciling the case of Suydam & Wickoff v. Keys with that of Beach v. Furman, 9 Johns. R. 229. The court assume, though they do not directly decide, that Sarah Furman was not, by reason of being a female, liable to be assessed to work on the highways, yet they held that the justice who issued, at the instance of the overseer of the highways, the warrant on which her property was taken and sold for this illegal assessment, and the constable who executed it, both protected, because they acted ministerially and in obedience to the commissioners and overseer of highways, who had jurisdiction over the subject matter, the assessment of highway labor. Let us compare this case with that of Suydam & Wyckoff v. Keys, and see if they can stand together. The commissioners had
The remark of this court in the case of Gold v. Bisssell, 1 Wendell, 213, “that where a warrant cannot legally issue without oath, but is so issued, all the parties concerned in the arrest under such process are trespassers,” was not intended, I presume, to apply to an officer who had no knowledge, from the warrant or otherwise, that it had not been duly sued out. A remark somewhat similar is made by Trimble, J. in Elliott, v. Peirsall, 1 Peters’ U. S. Rep. 340; but the decision of that case did not call for any such distinction as is raised in the one now under consideration. I have felt that the cáse of Wise v. Whithers, 3 Crunch, 331, is a direct authority against giving to the officer the protection that is now claimed for him. The plaintiffin that case was a magistrate in the District of Columbia, and, as such, not subject to do military duty. He was fined for neglect of such duty, and a warrant for the collection of the fine issued to the defendant, who seized his property thereon ; for this act he was prosecuted. The only point much considered in that case was that which involved the question as to the plaintiff’s exemption from military duty ; but that which related to the defendant’s protection under his warrant was only glanced at in the argument of the counsel and in the decision by the court. The distinction contended for in this case was scarcely raised there, and the attention of the court does not appear to have been
There is certainly high authority for the distinction which I am disposed to recognize in this case; and, in my judgment, the same principle which gives protection to a ministerial officer who executes the process of a court of general jurisdiction should protect him when he executes the process of a court of limited jurisdiction, if the subject matter of the suit is within that jurisdiction, and nothing appears on the face of the process to shew that the person was not also within it.
The following propositions, I am disposed to believe, will be found to be well sustained by reason and authority :
That where an inferior court has not jurisdiction of the subject matter, or having it has not jurisdiction of the person
. 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. If the subject matter of a suit is within the jurisdiction of a court, but there is a want of jurisdiction as to the person or place, the officer who executes process issued in such suit is no trespasser, unless the want of jurisdiction appears by such process. Bull. N. P. 83. Willes, 32, and the cases there died by Lord. Ch. J. Willes.
I am therefore of opinion that the execution issued by the justice to the defendant, it being on proceedings over the subject matter of which he had jurisdiction, and the execution, not shewing on its face that he had not jurisdiction of the plaintiff’s person, was a protection to the defendant for the ministerial acts done by him in virtue of that process.
Judgment on demurrer for the defendant, with leave to the plaintiff to amend his replication on payment of costs.