#### JOHN WELCH AND WIFE vs. EMSEY SCOTT AND OTHERS.

The following entry of the appointment of a constable on the records of a County Court, to wit: “ It appearing to the satisfaction of the court, present Philip Baker, Esq. (and six others, naming them,) that Emsey Scott has been appointed constable in Capt. Phipps’ company, the said Scott comes into court and enters into bond, &c. which is approved by the court,” imports that Scott had been chosen by popular election, according to law, and that it was so decided by the County Court, and therefore the appointment was a valid one.

A seal is indispensably necessary to a warrant, issued by a magistrate to arrest a defendant on a criminal charge.

It is the duty of a magistrate, before issuing a warrant on a criminal charge, ■ except in cases super visum, to require evidence on oath, amounting to a direct charge, oi creating a strong suspicion of guilt; and an innocent person, arrested on a warrant issued by a magistrate not on his own view, nor on any oath, would have an action against the magistrate. But the officer executing such warrant is j ustified,lhe subject matter being within the magistrate’s j urisdiction,though itdoesnot appear upon what evidence it was issued.

The cases of the State v. McDonald, 3 Dev. 468. Stale v. Curtis, 1 Hay. 471; Burke v. Elliott, 4 Ired. 355, cited and approved.

Appeal from the Superior Court of Law of Cherokee County, at Fall Term 1844, his Honor Judge Battle presiding.

This was an action for an assault and battery on the feme plaintiff, in which the defendant justified under a State’s warrant, issued by a justice of the peace of Cherokee county, and produced on the trial. It was directed to any constable of that county, and commanded him to take Elizabeth Welch, (the plaintiff) and several other persons, and have them before some justice of the peace of the said county, to answer to a charge, on behalf of the State, for an assault on William W. Pearcy, with intent to kill and murder him. It did not purport to have been issued on the view of the justice, nor on a charge made on oath by another person; and it was not under seal, but only under the hand of thejnagistrate.

*73The magistrate was examined, and he stated that • was dangerously wounded by some person; that it was not in his presence, but that he was credibly informed of it, and that it was done by the sons of Mrs. Welch, and that she encouraged them to do it; that Scott, the defendant, was an acting constable of the county, and that he then commanded Scott orally to arrest those persons and bring them before him, the • magistrate, for trial; and the defendant refused to do so, unless he should have a warrant in writing: And that thereupon, without any charge on oath, he issued the warrant and delivered it to the defendant, who proceeded to arrest the persons, including Mrs. Welch, and brought them before him for trial. On the part of the plaintiffs it was further proved, that the defendant came to their house and told Mrs. Welch, that ■ he came to arrest her on the State’s warrant, which he then produced. He required her to go with him, but she alleged that she was unwell, and remonstrated against going. One Powell, who was present, then told Scott, the warrant was void, because it was not issued on oath. But the defendant insisted that Mrs. Welch should go with him to the magistrate, and stated to her, that although he did not wish to do any thing he was not obliged to do, yet that he must carry her, and “ if she did not go quietly with him, he would put her in strings.” Whereupon she went.

The defendant also gave in evidence a record of the Coun- . ty Court in the following words: “ It appearing to the satisfaction of the court, present Philip Baker, Esq. (and six others who are named) that Emsey Scott has been appointed constable in Captain Phipps’ company, the said Scott comes into court and enters into bond with, <fcc. which is approved by the court.”

The counsel for the plaintiffs contended, that it did not appear that the defendant had been duly elected, and, therefore, that he was not a lawful constable. But the court held, that he was.

The counsel further contended, that the warrant was void, because first, it was issued without a charge on oath: and *74secondly, because it was not under seal. The court held, that the warrant would be sufficient to justify the defendant, though not founded on an oath, if that were the only objection to it. gu(. court father held, that it was void for want of a seal, and instructed the jury that for that reason the plaintiffs were entitled to recover.

The counsel for the plaintiffs further argued to the jury, that the information of Powell to the defendant, that the warrant was void, was evidence to them of malice on the part of the defendant towards Mrs. Welch. But the court instructed the jury, that the damages were in their discretion, and that, though they might give exemplary damages, if they thought, from the circumstances, the defendant had acted from malice towards the plaintiff or wantonly, yet that the defendant’s not regarding the opinion given by Powell, and acting in opposition to it, was not evidence of malice in him.

The jury assessed the plaintiff’s damages to 6J cents ; and the court having refused a venire de novo, and given judgment according to the verdict, the plaintiffs appealed to this court.

Francis for the plaintiffs.

No counsel in this court for the defendant.

Rüpfxn, C. J.

We concur in the opinion, that the defendant is to be deemed to have been duly in office. The entry on the record of the County Court, is much like that in Fullenwider's case, 4 Ired. 364; and imports, we think, that Scott had been chosen by popular election, according to law, and that it was so decided by the County Court, who is to judge of a disputed election. Besides, it appears in the case, that he acted de facto, and was a known constable in the county; and that is sufficient, as we have recently had occasion to say. Burke v. Elliott, 4 Ired. 355.

As the defendant has submitted to the judgment, the point ruled against him, as to the invalidity of the warrant for want of a seal, does not strictly arise in the case, as it comes before us on the plaintiffs’ appeal. But it is a point so material to an *75important process, and to the security of ministerial officers, that we think it ought not to be left in doubt. We therefore deem it our duty to express our opinion in accordance with that of the learned judge. Though it seems recently to be thought sufficient by some, if the warrant be in writing and under the hand of the justice, 1 Chit. C. L. 38; Bul. N. P. 83; yet so many of the older and most respectable authorities lay it down positively, that a seal is necessary to a warrant for a criminal charge, that we are obliged to consider it established law, and do not fee 1 at liberty to say any thing to unsettle it. Lord Hale so states the law explicitly. 2 P. C. 577, 2 P. C. 111. Hawkins adopts his authority; Hawk. P. C. B. 2, 6, 13. Lord Coke so states it in 2 Inst. 52; and Baron Comyns, in his digest, Imprisonment, H. 7, under the head, “ what shall be a lawful warrant,” says, “it must be made under hand and seal.” In this State the same law was held in Curtis' case, 1 Hay. 471, and we believe it has been uniformly acted on upon the circuits. The warrant being thus put out of the plaintiffs’ way, it would not, in general, be necessary to consider, whether the plaintiffs’ other objection was good or not. But we must do so in this case, because it concerns the correctness of the instructions as to the effect, on the question of damages, which the opinion of Powell ought to have. The warrant did not purport to have been, and was not in fact, issued on oath ; and for that reason, that person advised Scott it was void. If that opinion was correct, we will not say the plaintiffs’ argument was wholly unfounded. It would depend much upon the enquiries, who Powell was; how connected with the parties or the controversy; and whether, from his information or standing, the defendant would probably feel more or less respect for his opinion than he did for that of a public magistrate. But if his opinion was not correct, as his Honor had just informed the jury was the case; then, manifestly, the defendant could not in any degree be blameable for not being guided by advice, which was erroneous in point of law. We are, therefore, called on to determine, whether the warrant is void for that reason ; and we *76hold that it is not void, but is a good justification to the de-fondant. _

■ A magistrate may grant a warrant super visum. But ex- ■ cept in that case, it his duty, before issuing a warrant, to require evidence on oath, amounting to a direct charge, or creating a strong suspicionof guilt. There is no doubt that an innocent person, arrested on a warrant issued by a magistrate, not on his own view, nor on any oath, would have an action against the magistrate. It is usual in England for magistrates to take written affidavits to the charge, separate from any statement of the oath in the warrant; so that they may have at all times in their own power, evidence in justification of issuing the warrant. But it is not necessary to set out the evidence in the warrant, even in justification of the magistrate. Nor is it necessary to the justification of a ministerial officer for executing the warrant, that it should even have been granted on an oath. The constable must take care not to execute a warrant for a matter not within the jurisdiction of the magistrate; for all men must take notice, whether a person, under whose authority they act, could grant that authority. But when the warrant purports to be for a matter within the jurisdiction of the justice, the ministerial officer is obliged to execute it, and, of course, must be justified by it. He cannot enquire upon what evidence the judicial officer proceeded, or whether he committed an error or irregularity in his decision. This is elementary and familiar doctrine, and needs not that authorities should be cited to support it. But it is laid down in Curtis’ case, and in McDonald’s case, 3 Dev. 468. Here the jurisdiction is clear, as the charge is for a battery, and the warrant was executed in the magistrate’s county. That it is not necessary that the warrant should set forth the evidence on which it was granted, or even that it was granted on oath at all, is distinctly stated in Sir William Wyndham’s case, 1 Str. 2, and in Hawkins. And in Wilkes’ case, 2 Wils. 158, it was so held upon those authorities, and the authority of many precedents, and particularly, because of all the authors, who had treated of the form of warrants, each had omitted *77to mention any such requisite as its setting out, that it was issued on a charge on oath. That the magistrate issued the warrant, though for a matter within his jurisdiction, without information on oath and not on his view, may render him responsible. But as the recital of the information in the warrant is not an essential part of it, and the constable has nothing to look to but the warrant as his guide, it follows, that he is justified by the warrant, though not purporting to have been, nor in fact issued on a sworn charge.

The defendant was therefore right in paying no attention to the opinion of Powell; and it furnishes no argument against him of malice in the transaction. Consequently the judgment must be affirmed for 6|: cents damages and 6J cents costs, according to the act of 1826 ; and judgment is given against the plaintiffs, as appellants, for the costs of this court.

Per Curiam, Judgment accordingly.