#### John Flack and Robert B. Johnson, Plaintiffs in Error, v. John Ankeny, Defendant in Error.

ERROR TO JACKSON.

A warrant which states in substance, that A. B. had made complaint on oath that C. D. and others had violently assaulted and beaten him, and the officer required to arrest them and bring them before the justice, contains every thing essential to a valid warrant.

At common law, a justice may authorize any person he pleases to be his officer, and under the act of 22d March, 1819, a magistrate can appoint a constable in a criminal case, where there is a probability that the criminal will escape.

Where a justice has jurisdiction, but proceeds erroneously, he is not a trespasser, but where he has not jurisdiction, he is.

Opinion of the Court by

Justice Lockwood.

This is an action of trespass and false imprisonment, brought by Ankeny against Flack, a justice of the peace, for illegally issuing a warrant, and against Johnson for executing it. The defendants below demurred to the plaintiff’s declaration, on which demurrer, judgment was given for the plaintiff, and his damages assessed by a jury of inquiry. The only question presented in this case is, whether the plaintiff below has set out a sufficient cause of action in his declaration.

The declaration states that Flack, as justice of the peace, unlawfully issued a warrant in substance as follows, to wit: “ Commanding any constable of Jackson county, to take the body of Ankeny and others, and bring, &c., to answer the *188complaint of Edward Valentine in a case of assault and bat-; tery, and threats of his life, on the night of the 18th of this instant, wherein he has this day personally appeared before me, and solemnly swore that they struck, kicked, and whipped him, so as to mangle his body most cruelly,” and given under the hand and seal of the justice. The declaration further states, that “ on said warrant is the following indorsement, to wit: “I depute Robert B. Johnson, constable,” which warrant so unlawfully issued as aforesaid, was by the said Flack directed to, and handed over to the said Johnson, deputed as aforesaid, and that Johnson executed the same, by arresting the said Ankeny. This is the substance of the complaint.

This warrant contains every thing that is essential to a valid warrant. It states, in substance, though perhaps not very formally, that Valentine had made complaint, on oath, that he had been violently assaulted and beaten, by Ankeny and others, and the officer was required to arrest the offender and bring him before the justice. See 1 Ch. Crim. Law, 38 to 64. The justice had jurisdiction over the offense charged against Ankeny, and he seems to have fully complied with the 27th section of the act entitled “An act to regulate and define the duties of justices of the peace and constables,” approved 18th Feb., 1823.* So far, then, as issuing the warrant is concerned, the justice acted within the pale of his authority, and the court do not see any thing very objectionable in deputing Johnson to serve it. At common law, a justice may authorize any person whom he pleases, to be his officer, 1 Ch. Crim. Law, 38; and by the fourth section of the act providing for the appointment of constables, approved March 22d, 1819,† it is provided, “ that nothing in this act shall be so construed as to prevent any magistrate in the state from appointing any suitable person to act as constable in a criminal case, where there is a probability that the criminal will escape,” &c. The only possible objection that is perceived to the appointment of Johnson, is, that in the deputation, it is not stated that “there is a probability that the criminal will escape:” If magistrates were always held liable for every trifling mistake they commit in the performance of their various official duties, few persons would be found willing to accept an office of so little profit, and attended with such great risk. Courts, therefore, from necessity, are bound to view their acts with reasonable indulgence, and if they are governed by good faith, and act within their *189jurisdiction, they ought not to be held liable for errors of judgment in matters of mere form. The justice had power, at common law, to make the appointment in the manner he did, but if it should be supposed that the statute has impliedly taken away this power, still, as the justice has the power to make the appointment on a certain contingency, it seems no unreasonable presumption that the contingency existed that gave him the power to appoint in the manner he has done.

Cowles, for plaintiffs in error.

Young and Hall, for defendant in error.

The rule, applicable to cases of this kind, is well laid down by the supreme court of New York, in the case of Butler v. Potter, 17 Johns. Rep., 145. The court there say, “we have decided that where a justice has jurisdiction to issue an attachment, but proceeds erroneously in doing so, he is not, therefore, a trespasser. The distinction is this: where the justice has no jurisdiction, and undertakes to act, his acts are coram non judice, but if he has jurisdiction, and errs in exercising it, then the act is not void, but voidable, only.” The declaration does not negative the idea, but that the justice acted upon the belief of “ the probability that the criminals would escape.” For any thing that appears in the declaration, the justice acted perfectly right in deputing Johnson to serve the warrant, but if he erred in this respect, still it can not be said but that he had jurisdiction over the question, and this is sufficient for his justification. If the justice is not liable, there can be no pretense for sustaining the action against Johnson. The judgment must be reversed with costs, (a) , (1)

Judgment reversed.

*

Laws of 1823, p. 184.

†

Laws of 1819, p. 163.

(a)

No action of false imprisonment lies against a judge of a court of record for any act done by him as judge, or in the execution of his office, nor for any error in judgment. 5 Dane’s Dig., 586. Nor a judicial officer, 3 id., 60.

It is incomprehensible to say that a person shall he considered as a trespasser, who acts under the process of the court, per Ld. Kenyon, Gh. Just., in the case of Belk v. Broadbent, 3 D. & E., 185.

It is a general rule, the plaintiff is liable to false imprisonment, if the court exceed, or pursues not its jurisdiction, and any power to commit must be strictly pursued. So it lies if a magistrate has power to commit, and proceeds irreqularh. 5 Dane’s Dig., 587.

If the court has no jurisdiction, its warrant, when given, affords no gxcuse to the officer for the arrest. Ibid., 589. The jurisdiction of" courts and magistrates is a part of the law of the land, and this, the officer, and everybody else, is bound to know. 3 Dane’s Dig., 65.

It is a clear rule, that if a court not having jurisdiction, order an officer to do an act, and the officer obeys the order, his act is not justified. Ibid., pp. 66, 68, 69.

(1)

See note to last case.

The following is the provision of the present statute in relation to the appoint*190ment of constables : “ Any justice of the peace may appoint a suitable person to act as constable in a criminal or other case, where there is a probability that a person charged with any indictable offense will escape before application can be made to a qualified constable; and the person so appointed shall act as constable in that particular case, and no other; and any temporary appointment so made as aforesaid, shall be made by a written indorsement, under the seal of the justice deputing, on the back of the process, which the person receiving the same shall be deputed to execute.” Purple’s Statutes, p. 676, sec. 86. Scates’ Comp., 714.

There is also the further provision: “ Whenever there shall be no constable in any precinct, any justice of the peace in such precinct may appoint one, who shall be qualified as in other cases, and hold his office until superseded by an election. Purple’s Statutes, p. 662, sec. 16. Scates’ Comp., 686.

In Gordon v. Knapp, the justice appointed a constable pro tem. to serve a summons ; the appointment was not on the back of the summons, but on a separate paper. The court held the" appointment not to be a compliance with the statute, and said: “ As a justice is an officer of inferior and special powers, the existence of the causes which would justify him in deputing an officer to execute process, should be shown; and the kind of process, and the mode of appointing the officer to execute it, should be in strict accordance with the statute, otherwise the appointment is void, and the service of the process a nullity.” 1 Scam., 489.