said of them that they are merely directory, and that a *failure to comply with them does not constitute an in- [462] validity, but an irregularity only. But provisions which

are made for the very purpose of protecting individual interests. cannot be disregarded with impunity. A suitable illustration is found in the case of one distraining cattle damage feasant, and proceeding to impound them before having his damages appraised. Where the appraisement is made by the statute a necessary preliminary to the impounding, and has in view a benefit to the owner of the beast, that he may know precisely what his liability is, the failure to obtain it will render the distrainer a trespasser ab initio. So, as notice of the time and place of sale of chattels on execution is of high importance to the parties, an officer who fails to give it when the statute requires him to do so, and, nevertheless, proceeds to a sale, becomes trespasser ab initio, for the law will impute to him the indulgence of a purpose to sell thus wrongfully at the time he made the levy.' So the officer is liable in like manner if he sells on his process more property than is necessary to satisfy the demand; or if he proceeds to sell before the time when under the statute he is at liberty to do so; or if he makes a levy on household goods by handling them in a rough and improper manner, and then carries them away exposed to a severe rain; or if, having levied on the interest of one tenant in common, he proceeds to sell the whole title, or in any manner misuses or misappropriates the property attached by him.'

'Pratt o. Petrie, 2 Johns. 191; Hopkins v. Hopkins, 10 Johns. 369; Sackrider, McDonald, 10 Johns. 252; Merritt . O'Neil, 13 Johns. 477; Smith v. Gates, 21 Pick. 55.

2 Blake . Johnson, 1 N. H. 91; Purrington v. Loring, 7 Mass. 388.

3 Williamson v. Dow, 32 Me. 559. See Ross v. Philbrick, 39 Me. 29; Davis . Webster, 59 N. H. 471. Where an officer seizes without allowing an exemption he is a trespasser ab initio as to such excess seized. Wentworth . Sawyer, 76 Me. 434; Cone r. Forest, 126 Mass. 97. But not if in selling several articles to make the amount the last article sold is indivi

sible and goes for more than enough to make the balance. Wheeler v. Raymond, 130 Mass. 247.

4 Wallis v. Truesdell, 6 Pick. 455. See Smith v. Gates, 21 Pick. 55; Knight . Herrin, 48 Me. 533.

5 Suydacker v. Brosse, 51 Ill. 357.

Melville v. Brown, 15 Mass. 81. 7 Brackett . Vining, 49 Me. 356. See Sawyer v. Wilson, 61 Me. 529; Ash v. Dawnay, 8 Exch. 237; Play. fair . Musgrove, 14 M. & W. 239; Attack v. Bramwell, 3 Best & S. 520, and cases cited.

To render one a trespasser ab initio the facts should warrant the conclusion that the officer intended from the

For a mere non-feasance an officer does not become a [*463] trespasser *ab initio. As where he fails to keep safely property taken in execution by him;' or to proceed to a sale as in duty bound to do;' or to restore property attached after the debt has been satisfied. But in each of these cases he will be liable on the special case; but not in trespass, because in none of his conduct has there been any wrongful force.'

Extent of the Protection. The protection the officer receives from the apparent validity of the process is personal to the officer and those called in by him to assist in the service; that is to say, it protects them against being made liable as trespassers in obeying its command. But if the officer has taken property under it, and the fact that he acquired a special property in the goods by the seizure comes in question, it is not sufficient for him to show merely an apparently valid writ, but he must go

first to abuse his lawful authority. Griel. Hunter, 40 Ala. 542, citing Taylor . Jones, 42 N. H. 25. The wrongful act must be done to the property itself, and not to the fund realized from a legal sale, as by returning it to the wrong officer. Bentley v. White, 54 Vt. 564. It is not enough that he threshes and elevates grain levied on in the stack. Ladd v. Newell, 34 Minn. 107. But any obviously unnecessary and oppressive action may render the officer liable in case, as where a collector of taxes makes distress which is greatly and obviously excessive. Jewell v. Swain, 57 N. H. 506; Davis v. Webster, 59 N. H. 471.

The officer is liable if he makes defective service on the person after seizing goods, so that jurisdiction is not obtained. Fairbanks v. Bennett, 52 Mich. 61. So if he serves by mistake valid process on the wrong person. Formwalt. Hylton, 66 Tex. 288; or on the property of such person: Meadow v. Wise, 41 Ark. 285.

cer cannot defend trover under a replevin unless he has returned it into court. Wright o. Marvin, 59 Vt. 437.

5 That whoever assists the officer at his request is protected as he is, see Payne . Green, 18 Miss. 507; Killpatrick v. Frost, 2 Grant, 168: Goodwine v. Stephens, 63 Ind. 112. In Michigan one called to aid a sheriff in an arrest is justified, if he follows the officer's orders and does nothing wan tonly, even though from lack of a warrant the sheriff himself is not justified in making the arrest. Firestone . Rice. 38 N. W. Rep. 886 (Mich.) Protection does not extend to volunteers. Kirbie v. State, 5 Tex. App. 60.

further and show that the writ had lawful authority for its issue. Thus, if the writ was an execution, it must appear that there was a valid judgment; and if an attachment, then that the proper legal showing was made before its issue, for until this appears, the sheriff has only a personal protection, and no special property. Such is the case where the officer, for any reason, finds himself under the necessity of bringing replevin for the goods, or where he is sued for taking them by a third person who claims them by assignment from the defendant in the process, and whose title would consequently be valid as against any levy that could not be supported by valid anterior proceedings. And here it may be well to say, what it may be necessary to repeat hereafter, that mere irregularities in either the writ or what precedes it are not fatal defects.

*What Process is not Fair on its Face. Some old cases [*464] made a distinction between process issuing from courts of general jurisdiction and that issued by other and inferior tribunals, and required an officer in the last case to take notice of whatever might appear, or not appear, in all the proceedings on which the right to issue the process might depend. But since the thorough examination the whole subject received in Savacool v. Boughton, it has generally been conceded that the distinction. is unwarranted, so far as it concerns the personal protection of the officer. It is not unimportant, however, as it may bear upon the form of the process itself, for recitals may be sufficient in one case and not in another. When a court of general jurisdiction assumes authority to act there is a presumption of law that the authority exists, and the officer need not inquire further; but the inferior court must not only have authority in fact, but upon the face of its records and of its process enough should appear to show it. This is a general rule.

The following are illustrative instances of process not fair on its face: A warrant of arrest issued by a justice in a case of which its recitals showed he had no jurisdiction; a writ of habeas

'Earle v. Camp, 16 Wend, 562.

Spafford v. Beach, 2 Doug. (Mich.) 199; Leroy v. East Saginaw, 18 Mich.

233.

Parker. Walrod, 16 Wend. 514, 517, and cases cited.

45 Wend. 170. See, also, Ressler v. Peats, 86 Ill. 275; Barr v. Boyles, 96 Penn. St. 31.

5 Shergold v. Holloway, Star. 1002; Rosen v. Fischel, 44 Conn. 371; Pooler v. Reid, 75 Me. 488; Elsemore o

2

4

corpus issued by and returnable before an officer not by law having authority over that writ; a tax warrant the verification to which was made prematurely; a warrant for the collection of a personal tax where one on real estate only could be levied;' an order made by a commissioner in bankruptcy to detain a debtor until he should pay certain costs, the law giving him no authority to make such an order; a conviction which showed on its face that the party had been convicted on default in responding to a summons returnable less than ten days from date, the statute requiring ten days "at least"; process of contempt issued by a judge of a court when only the court as a body had authority to issue it; process issued under [*465] an *unconstitutional law; a warrant for taxes which directed the collection of costs when the law allowed none; an order of a military officer for the seizure of the property of a citizen not in the military service; a conviction by a military commission for an offense only triable in the regular courts,1o etc. In all these cases the rule prevails that the officer who is called upon to execute the orders of any tribunal is bound to take notice of the law and to know that his process is bad if in fact the law will not uphold it.

8

10

7

Whether, where an officer knows that back of process fair on its face are facts which render it void, he is nevertheless protected in serving it, is a point upon which the authorities are not

Longfellow, 76 Me. 128. So a warrant for a "person whose name is unknown, &c., of V." Harwood . Siphers, 70 Me. 464. See as to warrant of commitment; Patzack v. Von Gerichten, 10 Mo. App. 424.

Cable . Cooper, 15 Johns. 152. See Chalker v. Ives, 55 Penn. St. 81; Hilbish v. Hower, 58 Penn. St. 93.

2 Westfall v. Preston, 49 N. Y. 349. For other illustrations in tax cases, see Eames v. Johnson, 4 Allen, 382; Van Rensselaer v. Witbeck, 7 N. Y. 517; Nat. Bank of Chemung v. Elmira, 53 N. Y. 49; Gale v. Mead, 4 Hill, 109.

3 American Bank v. Mumford, 4 R. I. 478.

Watson . Bodell, 14 M. & W. 58.

5 Mitchell v. Foster, 12 A. & E. 472. If a special drainage proceeding is jurisdictionally void as against a defendant, an officer is not protected by his writ in enforcing the judgment. Cottingham v. Fortville, &c., Co., 14 N. E. Rep. 479 (Ind).

• Van Sandau . Turner, 6 Q. B. 773.

7Ely . Thompson, 3 A. K. Marsh. 70; Kelly . Bemis, 4 Gray, 83. Process from a State court in an admiralty case would be of this sort. Campbell. Sherman, 35 Wis. 103. 8 Clark v. Woods, 2 Exch. 395. 9 Mitchell . Harmony, 13 How.

115.

10 Milligano. Hovey, 3 Biss. 13.

agreed. In Illinois there are dicta in a number of cases,' followed at length by an authoritative decision," that where an officer has notice of an excess or want of jurisdiction in the magistrate or board from which his process emanates, he would render himself liable for acting under it. This doctrine is approved in Wisconsin, but it has not met with general acceptance. It was expressly denied in New York, in a case in which jurisdiction to issue the particular process depended on the defendant's residence within the jurisdiction of the court, and the officer knew him to be a non-resident. In Massachusetts, also, it was decided that an officer was not liable for serving process by the arrest of a person who had been discharged under the insolvent laws, though he knew of the discharge. A case in Connecticut is very pointed and clear. The officer was sued in trespass for executing a writ of replevin issued for a horse as having been distrained or impounded. Says HOSMER, Ch. J.: "The writ was put in his hands, as an officer, to serve, and he accordingly served the same by replevying the before mentioned horse. The first objection to this act of his is founded on a fact proved at the trial of the *cause, to-wit: that he knew the said horse had not [*466] been distrained or impounded. From this the plaintiff infers that he ought not to have served the replevin; and that in thus doing he became a trespasser. I reply to this objection, that the defendant, Phelps, being a legal officer, it became his duty, regardless of any knowledge or supposed knowledge of his own, that there existed no cause of action, to serve the writ committed to him promply, unhesitatingly, and without restraint from the above mentioned cause. This I consider so firmly established as to render the proposition self evident. The facts on the face of the writ constitute his justification, because he was obliged to obey its mandate; nor was it any part of his duty to determine whether the allegations contained in the replevin were true. The proof of these positions results, incontrovertibly, from his relative condition. He was an executive officer, whose sole duty it

Barnes v. Barber, 6 Ill. 401; Guyer v. Anderson, 11 Ill. 494; McDonald . Wilkie, 13 Ill. 22.

324.

Leachman . Dougherty, 81 Ill.

Sprague. Birchard, 1 Wis. 457,

464; Grace . Mitchell, 31 Wis. 533, 539.

4 Webber v. Gay, 24 Wend. 485. See, also, People v. Warren, 5 Hill, 440.

5 Wilmarth v. Burt. 7 Met. 257. See Twitchell v. Shaw, 10 Cush. 46.