6 Ohio 144 | Ohio | 1833
delivered the opinion of the court:
The first question to be decided is, whether it is competent for •the plaintiff in trespass to prove, in order to enhance the damages, that a legal prosecution was commenced with a malicious motive ? If the prosecution complained of be malicious, and the forms of law have been used for malignant purposes, the party injured has
2. Were the warrants of the justice of the peace a justification to the officer and his posse ? The principle is well established that executive officers, being obliged to execute process, are protected in the rightful discharge of their duty, provided the process issued from a court or magistrate having jurisdiction of the subject matter. And if the magistrate proceed unlawfully in issuing the process, he, and not the executive officer, will be liable for the injury. 13 Mass. 286, 272; 14 Mass. 459. The executive officer is justified, even when the process under which he acts is voidable for irregularity or mistake in issuing it. 4 Mass. 232 ; 2 Stark. Ev. 818; 3 Stark. Ev. 1448, n. e. The cases relied upon by the plaintiff’s counsel are those of attempted justification where there appears an excess of jurisdiction. In such cases, the process being void, it, of course, could afford no protection. As if a justice of the peace were to issue a writ in slander that process would not protect the officer, because the justice has no jurisdiction of the subject. It does not comport with law or correct policy to permit an executive officer, or those he commands as his posse, to examine into the regularity of the proceedings of the court whose process they execute, or to confer upon them authority to proceed or to forbear, as they may judge best. The rule that holds them to know the extent of jurisdiction requires for its justification
The court is asked, in case the motion for a new trial is overruled, to permit the plaintiff to enter a nonsuit on paying the costs. This we decline to do. It would innovate upon the usual practice to allow a nonsuit after verdict; and we have decided, at this term, in the case of Gazzam v. Cincinnati Insurance Co., ante, 75, that our office here is to decide questions reserved in the county. This motion was not made in the county and reserved; as an original one, it can not be received.
Judgment on the verdict.