Jennings v. Thompson

• Decision Date: 10 November 1891
• Citation: 54 N.J.L. 55,22 A. 1008
• Parties: JENNINGS v. THOMPSON.
• Court: New Jersey Supreme Court

22 A. 1008

54 N.J.L. 55

JENNINGS

v. THOMPSON.

Supreme Court of New Jersey.

Nov. 10, 1891.

(Syllabus by the Court.)

Action by John H. C. Jennings against Barzillai L. Thompson, a constable, for trespass for assault and battery in arresting and imprisoning plaintiff. Defendant pleaded justification under a process. Plaintiff moved to strike out the plea. Motion denied.

Argued before Depue, DIXON, and REED, JJ.

Thomas E. French,for plaintiff.

Charles E. Hendrickson, for defendant.

DEPUE, J. This was an action for trespass for assault and battery in arresting and imprisoning the plaintiff. The defendant, a constable of the county of Burlington, in his plea justified under the following process: "State of New Jersey, Burlington county—ss.: To the sheriff or to any constable of said county: [ l. s.] Take John H. C. Jennings so that he personally be and appear before the judges of the court of general quarter sessions of the peace, holden in and for the county of Burlington, at Mount Holly, on the 19th day of January instant, to give evidence in a certain indictment lately found iu said court against John H. C. Jennings Thereof fail not, on pain of one hundred dollars. Witness Charles G. Garrison, Esquire, Presiding Justice of the said court, at Mount Holly, aforesaid, the fifteenth day of January, in the year of our Lord one thousand eight hundred and ninety-one. Charles T. Parker, Clerk. Eckard P. Budd, Pros. Atty." The plea avers that the said warrant was issued out of the court of quarter sessions of the peace of the said county, signed by the clerk of the court and by the prosecutor of the pleas of the said county, and duly sealed with the seal of the said court, and delivered to the defendant, who was then one of the constables of said county, in due form of law, to be executed; and that by virtue of the said warrant he did arrest and take the plaintiff into custody, etc. The grounds on which the motion to strike out was made, were: (1) That the court of quarter sessions was not a court of such a jurisdiction that its process would be a protection to an officer without proof of the regularity of the proceedings on which it was issued; (2) that it appeared by the plea that when this process was issued the indictment mentioned in it had been tried, and awaited the judgment of the court; (3) that, the court had no power to compel the plaintiff to appear as a witness on the trial of an indictment against him; (4) that it appeared by the plea that the writ issued did not conform to the order of the court, the court having ordered process to bring the plaintiff in for sentence, whereas this writ commands that he be brought in as a witness; and (5) that the court had not power to order compulsory process for a witness until after subpoena served and default in disobeying that process. The plea contains considerable matter not essential or appropriate to a defense by an officer under process. The officer justifies under this writ, and the efficacy of his defense depends upon the validity of the writ, and the jurisdiction of the court to award the process, and not upon the regularity of the proceeding in which the writ was issued. Hence in approved precedents the plea avers that the writ issued out of and under the seal of the court, setting out the command of the writ particularly, with an averment that what was done by the officer was done in the execution of the process. 9 Went. PI. 88-352; 3 Chit. PI. 1083-1089. If the court out of which the writ issued has, by its constitution and fundamental law, jurisdiction,— that is, power to take cognizance of and determine such a cause of action as that in which the process was awarded, and authority of law to issue process of that nature, either generally or in particular cases,—and the writ be regular on its face, the writ itself will be a full justification for acts done by the officer in its lawful execution. When such appears to be the process, the officer is protected in its execution, and he is not concerned with any illegalities that may exist back of it. Cooley, Torts, 460; Woodruff v. Barrett, 15 N. J. Law, 40; Mangold v. Thorpe, 33 N. J. Law, 134. A full collection of the cases on this subject will be found in the notes to Savacool v. Boughton, 21 Amer. Dec. 190-209. In Countess of Rutland's Case, 6 Coke, 54, it was resolved "that forasmuch as a capias was awarded against the countess by the court of common pleas, that the sheriff, or his officer by his warrant, might, without any offense, execute it, for they ought not to dispute the authority of the court; * * * and although it appears in the capias that she was a countess, against whom by the law no capias in such cases lies; * * * yet. forasmuch as in some cases, as incases of contempt, etc., a capias lieth against them, it was therefore resolved that the sheriff and his officers ought not to examine the judicial act of the court, but execute the writ. "In the Case of the Marshal sea, 10 Coke, 76, it was resolved that when a court has jurisdiction, and proceeds inverso ordine, or erroneously, no action lies against the party who sues out, or the officer or minister of the court who executes, the precept or process of the court; and, e converso, that when the court has not jurisdiction actions will lie without regard to the precept or process. In Draper v Blaney, 3 Saund. 193, the court of king's bench a warded a fi. fa. to the sheriff of the county of Montgomery, in Wales, on a judgment of debt recovered in that court. The sheriff made return that the county of Montgomery was one of the 12 counties in Wales where the writ of the king, not touching the king himself, did not run, and praying the advice of the court whether he could execute the command of the writ. On a motion to amerce the sheriff, the court agreed that the sheriff ought to be amerced, "for the sheriff, by his return, ought not to dispute the jurisdiction of this court, of which he is an officer, as he has done here; but, if the court has erroneously awarded a process which ought not to have been awarded, the sheriff ought to obey and...