Foster v. Wiley

By the Court, Upson, J. The general rule as laid down by.the authorities seems to be that in cases of this kind if the magistrate has jurisdiction of the subject matter, and if the process is regular upon its face, the officer executing it is protected, and in questioning or reviewing his action, the Court will not look beyond 'the process to see if he was cognizant of any irregularity in regard to it. 7 Met., 257; 10 Cush., 46; 9 Conn., 140; 5 Hill, 440; 24 Wend., 485. •These decisions seem to hold that it is of no consequence even if the officer had knowledge of facts rendering the process void for want of jurisdiction, and to affirm that the officer is protected by 27 process regular upon its face, whatever he may have heard going to impeach it. “It will not do,” says Parker, C. J., in Sanford vs. Nichols, 13 Mass., 288, “ to require of executive officers before they shall be held to obey precepts directed to thenf, that they shall have evidence of the regularity of the proceedings of the tribunal which commands the duty. Such a principle would put a stop to the execution of-legal process.” This principle of protection to the officer is recognized by our own Supreme Court, in Wall vs. Trumbull, 16 Mich, 233, 234, where it is held that a ministerial officer cannot be held- liable “ where the precept or order under which he acts, comes to him from the proper source, and is within the apparent authority of the body or officer issuing or making it,” and in this particular case the Court adds, “ and even if the officer had knowledge outside of his certificate, of the facts constituting the alleged illegality, I do not think it would effect the rule of protection.” See also 19 Mich., 57; 6 Mich., 144; 1 Mich., 85. In the case before us, the execution was regular on its face, and within the apparent jurisdiction of the magistrate issuing it, and the officer, Monteith, in serving it, seems to come within the rule above laid down, and to be entitled to protection. The charge of the Court on this point having been erroneous, the defendant, Monteith, is entitled to a new trial. 24 Wend., 485. There might be more question as to the other defendant, but as it was virtually conceded on the argument, that if the motion prevailed in regard to the officer it should as to both, the verdict must be set aside and a new trial granted, costs to abide the event of the suit.