#### Eli S. Lattin, Plaintiff in Error, v. William A. Smith, Defendant in Error.

ERROR TO JO DAVIESS.

A co. so. issued upon a judgment is not void on its face, though it does not recite that the oath required by law to be made was made before it issued, nor is it necessary that a declaration for an escape on such ca. sa. should aver that the oath was made.

An officer acts at his peril; he is bound to obey the mandate of the writ, and if he proceeds to execute it he is bound to complete the execution of it.

It is sufficient to justify the officer executing the process, that the magistrate had jurisdiction; he is not bound to examine into the validity of the proceedings or regularity of the process.

This was an action on the case against Lattin, commenced in the Jo Daviess circuit court by the defendant in error for an escape, to which Lattin pleaded not guilty, with notice of special matter to be given in evidence. The plaintiff below, to maintain his action, produced in evidence a ca. sa. issued by a justice of the peace of Jo Daviess county, at the suit of the plaintiff below against one E. Q. Vance. The counsel for defendant below objected to the introduction of this ca. sa. for the reason that it did not appear on its face that the oath to authorize the issuing a ca. sa. had been made, but the court permitted the same to go in evidence to the jury, to which the defendant below, by his counsel, excepted, and judgment on the verdict being rendered against him after several continuances, he has brought this writ of error, and assigned for error,

1. That the court erred in permitting the ca. sa. to be read *362to the jury, because it did not appear on its face that the requisite oath had been made.

2. That the court erred in entering judgment in November term, 1829, because between that time and the rendering the verdict in the cause, three terms of the court had elapsed which ought to operate as a discontinuance. To these errors there was a joinder.

Opinion of the Court by

Justice Smith.

The grounds of error insisted on in the present cause, are not sustainable.

The ca. sa. upon which the defendant was arrested, was properly admitted in evidence. It was not void on its face, because of the want of a recital of the necessary oath having been taken to authorize the magistrate to issue it. This court are bound to presume that the magistrate acted in conformity to the laws until the contrary appears, having jurisdiction over the subject matter before him. The court will therefore intend that what ought to have been done, was done, until it be shown to be otherwise. The evidence was therefore properly admitted, and it devolved on the defendant to show that the law had not been complied with if it could have availed him in such an event. The same reasons are equally applicable to the want of an averment in the declaration of the taking of the oaths. Such an averment was altogether unnecessary, being substantially embraced in the averment that the ca. sa. was sued out in conformity to law.

As to the main point which involves the liability of the officer, the rule of law is well settled, that where process is delivered to an officer he acts at his peril; that he is bound to act in conformity with the commands of the writ, and if he proceeds to execute it, he is bound to complete the execution. 1 Gallis., 519, Meecher et al. v. Wilson. It is doubtless true that an action can not be maintained against an officer for not executing void process, or process founded on a void judgment, or suffering a prisoner to escape from such process. But if the proceedings on the judgment on which process is founded, are merely erroneous and not void, he will be liable. Abbe v. Ward, 8 Mass., 9. The magistrate, it is not denied, had jurisdiction of the subject matter; the judgment was regularly entered, and for aught that appears, the oath necessary to have been administered before the ca. sa. could issue, must be presumed to have been taken.

It was sufficient then to justify the officer executing the process, to know that the court had jurisdiction of the subject matter, he was not bound to examine into the validity of the proceedings, or the regularity of the process, and even if it *363had been erroneous, he would not have been liable as a trespasser for executing it. For this doctrine, the cases of Hill v. Bateman, Stra., 710, case of the Marshalsea, 10 Co., 76, (a) and Warner v. Shad, 10 Johns. Rep., 138.

Ford, for plaintiff in- error.

Cowles, for defendant in error.

The officer having proceeded to take the party into custody, has, it would seem, tacitly admitted the regularity of the process, and his subsequently permitting him to escape and go at large, could not be justified, unless, indeed, the process was not merely voidable, but absolutely void. This not being the fact, we can see no reason why, according to the principles-endeavored to be laid down, he should not be held liable for the damages sustained by that act.

The objection, that a discontinuance in the cause has happened, is not sustainable, because the judgment has been entered nunc pro tunc, and any supposed error on that ground has been thereby cured. The judgment is affirmed with costs. (a), (1)

Judgment affirmed.

(a)

Vide Salkeld, 273. Shirley v. Wright, where the sheriff had the defendant in custody upon a ca. sa. issued after the year and a day without a set", fa., and permitted him to escape. It was held the sheriff was liable, and could not take advantage of the error. Vide also, 2 Searg. and Rawle, 152, Lewis, Esq. v. Smith.

(1)

See note to Moore v. Watts et al., 42. Brother v. Cannon, 1 Scam., 201.