made, that the great weight of judicial opinion is in opposition to the theory that if a judge, as a matter of law and fact, has not jurisdiction over the particular case, that thereby, in all cases, he incurs the liability to be sued by any one injuriously affected by his assumption of cognizance over it. The doctrine that an officer having general powers of judicature, must, at his peril, pass upon the question, which is often one difficult of solution, whether the facts before him place the given case under his cognizance, is as unreasonable as it is impolitic. Such a regulation would be applicable alike to all courts and to all judicial officers acting under a general authority, and it would thus involve in its liabilities all tribunals except those of last resort. It would also subject to suit persons participating in the execution of orders and judgments rendered in the absence of a real ground of jurisdiction. By force of such a rule, if the Supreme Court of this State, upon a writ being served in a certain manner, should declare that it acquired jurisdiction over the defendant, and judgment should be entered by default against him, and if, upon error brought, this court should reverse such judgment on the ground that the service of the writ in question did not give the inferior court jurisdiction in the case, no reason can be assigned why the justices of the Supreme Court should not be liable to suit for any injurious consequence to the defendant proceeding from their judgment. As I have said, in my judgment, the jurisdictional test of the measure of judicial responsibility must be rejected.

Nevertheless, it must be conceded that it is also plain that in many cases a transgression of the boundaries of his jurisdiction by a judge, will impose upon him a liability to an action in favor of the person who has been injured by such excess. If the magistrate should, of his own motion, without oath or complaint being made to him, on mere hearsay, issue a warrant and cause an arrest for an illegal larceny, it cannot be doubted that the person so illegally imprisoned could seek redress by a suit against such officer. It would be no legal answer for the magistrate to assert that he had a general cognizance over criminal offences, for the conclusive reply would be, that particular case was not, by any form of proceeding, put under his authority.

From these legal conditions of the subject my inference is, that the true general rule with respect to the actionable responsibility of a judicial officer having the right to exercise general powers, is, that he is so responsible in any given case belonging to a class over which he has cognizance, unless such case is by complaint or other proceeding put at least colorably under his jurisdiction. Where the judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and such officer is not liable in a suit to a person affected by his decision, whether such decision be right or wrong. But when no facts are present, or only such facts as have neither legal value nor color of legal value in the affair, then, in that event, for the magistrate to take jurisdiction is not, in any manner, the performance of a judicial act, but simply the commission of an unofficial wrong. This criterion seems a reasonable one; it protects a judge against the consequences of every error of judgment, but it leaves him answerable for the commission of wrong that is practically wilful; such protection is necessary to the independence and usefulness of the judicial officer, and such responsibility is important to guard the citizen against official oppression.

The application of the above-stated rule to this case must, obviously, result in a judgment affirming the decision of the Circuit Judge. There was a complaint, under oath, before this justice, presenting for his consideration a set of facts to which it became his duty to apply the law. The essential things there stated were, that the plaintiff, in combination with two other persons, "with force and arms," entered upon certain lands, and "with force and arms did unlawfully carry away about four hundred bundles of cornstalks, of the value," etc., and were engaged in carrying other cornstalks from said lands. By a statute of this State (Rev. p. 244, Sec. 99), it is declared to be an indictable offence, "if any person shall wilfully, unlawfully and maliciously" set fire to or burn, carry off or destroy any barrack, cock, crib, rick or stack of hay, corn, wheat, rye, barley, oats or grain of any kind, or any trees, herbage, growing grass, hay or other vegetables, etc. Now, although the misconduct described in the complaint is

not the misconduct described in this act, nevertheless the question of their identity was colorably before the magistrate, and it was his duty to decide it; and under the rule above formulated, he is not answerable to the person injured for his erroneous application of the law to the case that was before him.

As to the other defendant, all he did was to make his complaint on oath before the justice, setting forth the facts truly, and for such an act he could not be held liable for the judicial action which ensued, even if such action had been extra-judicial. But as the case was, as we have seen, brought within the jurisdiction of the judicial officer, neither this defendant, nor any other person could be treated as a trespasser for his co-operation in procuring a decision and commitment which were valid in law, until they had been set aside by a superior tribunal.1 Let the judgment be affirmed.

EXCEPTIONS, SECTION 3. EXECUTIVE ACTS.

CORNELL V. BARNES.

(7 Hill, 35.-1844.)

ON error to the Columbia common pleas. Barnes brought an action against Richard Cornell and three others in a justice's court, and declared as follows: "The plaintiff complains against the defendants for that heretofore, to wit, in the spring of 1840, Richard Cornell was duly elected a constable of the town of Chatham, in the county of Columbia; and afterwards, to wit, etc., and previous to his entering upon the discharge of the duties of said office, etc., the said Cornell,

1 Cf. Vaughn v. Congdon, 56 Vt. 3; 48 Am. R. 758, when complaint showed on its face that the offence was barred by the Statute of Limitations, and justice held liable; but see dissenting opinion. Also Lange v. Benedict, 37 N. Y. 12; 29 Am. R. 80, and criticism in 15 Am. L. Rev. 441. Writ of error in this case dismissed (99 U. S. 68), because it presented no Federal question Its doctrine applied to arbitrators in Jones v. Brown, 54 Ia. 74.

and the other defendants above named, as his sureties, did, by their writing, jointly and severally agree to pay to each and every person who should be entitled thereto, all such sums of money, as the said constable might become liable to pay on account of any execution delivered to him for collection; and afterwards, to wit, etc., an execution was issued on a judgment rendered before John Trimper, esquire, then and now one of the justices of the peace of said county, in favor of the said plaintiff against James Walker, a resident of the town of Chatham in said county, on a promissory note, for $26.71, damages and costs, which said execution was delivered to the said Cornell, constable as aforesaid, to be by him executed according to law; yet the said Cornell wholly neglected to collect and execute said execution as therein directed, and wholly neglected to make return of the same within the time limited by law; whereby he, the said Cornell and his sureties, become liable to pay to the said plaintiff the amount of said execution, with interest, etc.," but have not paid, etc. The defendants demurred to the declaration, assigning for cause, among other things, that it did not set forth enough to show jurisdiction on the part of the justice who rendered the alleged judg ment, either in respect to the person or the subject matter. The plaintiff joined in demurrer, and the justice gave judg ment in his favor; whereupon the defendant appealed to the common pleas. The latter court affirmed the judgment of the justice, and the defendants sued out a writ of error.

G. W. Bulkley for the plaintiffs in error.

C. P. Schermerhorn for the defendant in error.

By the court. BEARDSLEY, J. In order to maintain this suit, the plaintiff was bound to show that the constable had become liable to pay the whole or some part of the money for which the execution was issued. Such are the precise terms of the instrument executed by the defendants, and so is the statute on the subject. (1 R. S. 346, § 21.) A constable may serve an execution which is regular on its face, although issued upon a judgment rendered without jurisdiction; for he may

rely upon his process, and is not bound to see that jurisdiction. has been acquired. But although such is the right of the officer, he is under no legal obligation to serve the process; and its invalidity is always a good answer to an action brought against him for refusing to execute it. (Earl v. Camp, 16 Wend. 567-8, and the cases there cited.)

Process from a court of special and limited authority cannot be deemed valid in favor of the party who procured it to be issued, until it is shown that complete jurisdiction existed. Hence to make out a right of action in the present case, the plaintiff was bound to show that the justice who rendered the judgment on which the execution issued, had jurisdiction of the subject matter, and of the person of the defendant. The declaration shows that the justice had jurisdiction of the subject matter, for it alleges that the action was brought to recover the amount of a promissory note; but it fails to show that jurisdiction over the person had been acquired. For this purpose it was necessary to aver either that the party appeared, or that process was sued out and duly served on him. The declaration contains no averment of this nature, and the judgment of the court below should be reversed.

Judgment reversed.

O'SHAUGHNESSY v. BAXTER.

(121 Mass. 515.-1877.)

L. M. Child for the plaintiff.

J. Bennett for the defendant.

GRAY, Ch. J. This is an action of tort against a constable of Boston for an assault and false imprisonment. The material facts of the case, as they appear from the statements in the report and the findings of the jury, are as follows: This plaintiff, whose real name is John O'Shaughnessy, was sued by the name of John Shaughnessy, a name by which he was commonly known, upon a promissory note signed by another person of that name, and not by himself. The person who