CHAPTER LIX.

ACTION FOR A TRESPASS COMMITTED BY AN OFFICER ACTING UNDER INSTRUCTIONS OF THE EXECUTIVE, OR UNDER A DECISION OF A COURT MARTIAL, OR UNDER AN ASSESSMENT OF TAXES.

1. Officer acting under instructions of executive.

If instructions be given by the executive under a misconstruction of an act of congress, they cannot legalize an act which without these instructions would have been a plain trespass; in a suit against the officer who obeys them, they will afford him no protection; he will still be liable for damages. Little &c. v. Barreme &c. 2 Cranch 176, 1 Curtis 465.

2. Officer acting under a decision of a court martial.

A decision of a court martial in a case clearly without its jurisdiction, cannot protect the officer who executes it: the court and the officer are all trespassers. It has been decided that a justice of the peace within the District of Columbia is exempt from the performance of militia duty, and cannot be legally enrolled; that a court martial has no jurisdiction over him as a militia man; and that an action of trespass lies against the officer who makes distress in order to satisfy a fine assessed on such justice by the court martial. Wise v. Withers, 3 Cranch 331, 1 Curtis 597. The supreme court of New York considered that it did not press the principle so far when it sustained an action of trespass against the officer in command at Sacketts Harbour (in Jan. 1814) for keeping in confinement an American citizen to be tried by a court martial for an offence of which the court had no jurisdiction. Smith v. Shaw, 12 Johns. 257.

3. Officer acting under an assessment of taxes.

The cases of Harrison v. Bulcock &c. 1 H. Bl. 68, Williams v. Pritchard, 2 T. R. 2, and Perchard v. Haywood, 8 Id. 468, were under consideration in New York in an action of trespass against a collector for making a distress for a tax assessed on a theatre as if it were a dwelling house; under the act of congress it might and ought to have been assessed

as land with the theatre upon it. Two judges were of opinion. that the collector could derive from the assessment no authority to collect a tax which the assessors had not a right to impose; and therefore considered that the action would lie against the collector. But a majority of the court held otherwise; the principal ground of their decision was that a remedy was provided by the act for the alleged error; the principal assessor being, upon appeal, competent to redress the grievance. Henderson &c. v. Brown, 1 Caines's Rep. 92. It is consid. ered that in this case there was no want of jurisdiction nor excess of jurisdiction; it was not a void but only an erroneous assessment and therefore the collector was justified. 13 Johns. 446, 7. It was unlike the case of Mayor v. Knowler, 4 Taunt. 634.

The collector has been held liable when the property of the plaintiffs was not taxable in any degree nor under any modification. In a case in which the power of trustees of a school district was expressly limited to the property of "resident inhabitants of the school district," they having exceeded their powers by imposing a tax on the plaintiffs who were not such resident inhabitants, an action was maintained against the collector who under the warrant of the trustees levied for that tax. In such cases the subordinate officer is to see that he acts within the scope of the legal powers of those who command him. Suydam &c. v. Keys, 13 Johns. 444.

CHAPTER LX.

ACTION AGAINST AN OFFICER FOR REFUSING AT AN ELECTION TO RECEIVE THE VOTE OF A LEGAL VOTER; OR FOR MAKING A FALSE OR DOUBLE RETURN.

1. For refusing to receive a legal vote.

The right of action against an officer for refusing at an election to receive the vote of one who had a right to give it, was on full consideration, maintained in Ashby v. White, 2 Ld. Raym. 950, 958, 6 Mod. 46, 1 Salk. 19, 3 Id. 17, Holt 524, 1 Smith's Lead. Cas. 105. Nothing is found in Lord Holt's opinion as to malice being a necessary ingredient in the action; but we are told the Lords relied on that ground. East 564, 5. The defendant was charged with malice, the

jury had passed on that charge and the record was conclusive. Abbott, C. J. 2 Stark. 577. There was an averment of malice in Grew v. Milward, Id., and at nisi prius, Wilson, J. held, that to sustain the action the officer must have acted maliciously or wilfully. Drewe v. Colton, 1 East 563, note. The question, said Abbott, C. J., is whether the defendant's conduct proceeded from an improper motive or from an honest intention to discharge his duty. The action lies if he intended to do prejudice either to the plaintiff or to the candidate for whom he meant to vote; but not if he acted in the best way he could according to his judgment. Cullen v. Morris, 2 Stark. 577, 3 Eng. Com. Law Rep. 481. Such was the course of decision in England before the statutes of 2 W. 4, c. 45, and 6 & 7 Vict. c. 18. Under these statutes the names of persons who are to vote appear on a register and the duties of the returning officer are more of a ministerial character than they were before; it may be that now a cause of action is disclosed in the simple refusal of the officer to receive and record the vote of a person on the register. Pryce v. Belcher, 3 Man.

Gr. & Scott 83, 54 Eng. Com. Law Rep. 83.

In Massachusetts an action is maintainable against public officers who preside at elections and decide on the qualification of electors (and whose functions are in this respect to some extent judicial) for refusing to receive a vote, or refusing to place the name of a claimant on the list of voters without averring that such refusal was malicious and wilful. Gardner v. Ward &c. 2 Mass. 244, note; Kilham v. Ward, Id. 236. The courts of that state consider that the principle— that the officer is answerable in an action on the case, on the mere ground that he had refused to receive the vote of one entitled to vote-was fully recognized by Lord Holt in Ashby v. White; and that there is more necessity for acting on it in Massachusetts than in England, because in England the vote being viva voce and a committee of the house of commons making a revision on which the rejected vote may be counted, there is in that way a remedy which does not exist in Massachusetts. Lincoln v. Hapgood &c. 11 Mass. 350; 9 Pick. 312; 12 Id. 485. Some change is made by the stat. of 1822, c. 104, 4, substantially followed in Rev. Stat. c. 3, § 9; the effect of which was considered in Blanchard v. Stearns &c. 5 Metcalf 301.

2. For making a false or double return.

Though the stat. 23 H. 6, gave a remedy for a false return, it was construed to give none for a double return. When

upon an election to a member of the house of commons a sheriff made a double return of members, Hale, C. J., and two other judges were of opinion that an action might be maintained therefor, as the return was alleged and found to be false and malicious and with the intention to put the plaintiff to charge and expenses; but in the exchequer chamber the judgment was reversed; North, C. J. and five other judges holding (against two) that the action lies not. Bernardiston v. Some, 2 Lev. 114; Onslow v. Rapley, 3 Lev. 30, 2 Ventr. 37. Before the action was brought it had been adjudged by the house that the plaintiff in the first of these cases was elected; there was no such determination in the second. These decisions led to the passing of the stat. 7 & 8 W. 3, which declares that an action shall lie against the returning officers for all false returns wilfully made, and for double returns falsely, wilfully and maliciously made. 1 East 568, note. If this statute was—as it purports to be-declaratory of the common law, Wilson, J. regarded it as going to shew that an action would not lie at common law for a false return unless the return were made maliciously as well as falsely. 1 East 565, note.

In Virginia penalties on a commissioner or officer, for breach of duty are prescribed by the Code, p. 75, c. 7, § 17, 18; the effect of which as it regards a civil action is stated ante, p. 548.

CHAPTER LXI.

ACTION AGAINST A SHERIFF FOR PERMITTING AN ESCAPE, OR FOR ANY OTHER NEGLECT OF DUTY, UNDER EXECUTION OR OTHER LEGAL PROCESS.

1. Action lies against sheriff for false return, or negligence in serving writ.

An action will lie against a sheriff for making a false return. upon a writ, Cæsar v. Bradford, 13 Mass. 169; or for taking insufficient bail, Rayner v. Bell, 15 Mass. 377; Mather v. Green, 17 Id. 60; or for any negligence in respect to the service of the writ.

A sheriff who has a capias against a party and fails to arrest him on the first opportunity is deemed guilty of negli gence and liable for any damage that may result therefrom. VOL. II.-37

1 M. & W. 714. But the sheriff is not bound to carry him to prison the first moment. Whitrow v. Edwin, 1 Lutw. 128. Indeed, in England, he is prohibited by the stat. 2 Geo. 2, c. 22, from carrying the debtor to prison within 24 hours after the arrest. The process requiring him to have the body on a certain day, it is considered that if the sheriff has him there in person he will not be liable for not confining him before. Planck v. Anderson &c. 5 T. R. 37. But after the return day the prisoner is to be kept in jail. This was the sheriff's duty in England before as well as since the statute of 4 & 5 W. & M. c. 21. Parke, B., 4 M. & W. 153.

2. Action will not lie against sheriff for escape, unless arrest be lawful.

The statute of Westm. 2, c. 11, and Lord Coke's commentary (2 Inst. 382,) both suppose a committal by proper authority. 2 Adol. & El. N. S. 785. The escape for which an action may be brought is of a person under lawful arrest. 3 Bac. Abr. tit. Escape in civil cases. What is meant by lawful arrest is shewn by the cases there collected under letter (A). Shirley v. Wright, 2 Ld. Raym. 775; Bourne v. Cooling, 2 Show. 17, pl. 10; Boothman v. Earl of Surry, 2 T. R. 5. The distinction is between what is process voidable and erroneous, but unreversed, which the jailor is bound to respect and is therefore protected by, and what is void or no process. 2 Adol. & El. N. S. 785. In the latter case the custody not being legal, an action will not lie against the officer for an escape from it. Contant &c. v. Chapman, 2 Adol. & El. N. S. 771, 42 Eng. Com. Law Rep. 905.

3. When sheriff is liable to action for false imprisonment.

Lord Coke says "one being in execution the plaintiff comes and says to the sheriff set him at large out of prison; if he will detain him afterwards but the space of an hour, an action for false imprisonment will lie against him for this." Wythers v. Henley, 3 Bulstr. 96; Cro. Jac. 379. A fortiori the sheriff must be liable to an action of trespass if notwithstanding that he is desired by the plaintiff not to take the defendant, he does take him; for in this case the original taking is unlawful. Barker v. St. Quintin, 12 M. & W. 452, 3.

Except under the circumstances just mentioned, no action is maintainable against a sheriff for arresting a person who, at the time of such arrest, is privileged by reason of attendance as a witness under process from a court; not an action of tres