Opinion of the Court by
This is an action of trespass and false imprisonment, brought by Ankeny against Flack, a justice of the peace, for illegally issuing a warrant, and against Johnson for executing it. The defendants below demurred to the plaintiff’s declaration, on which demurrer, judgment was given for the plaintiff, and his damages assessed by a jury of inquiry. The only question presented in this case is, whether the plaintiff below has set out a sufficient cause of action in his declaration.
The declaration states that Flack, as justice of the peace, unlawfully issued a warrant in substance as follows, to wit: “ Commanding any constable of Jackson county, to take the body of Ankeny and others, and bring, &c., to answer the *188complaint of Edward Valentine in a case of assault and bat-; tery, and threats of his life, on the night of the 18th of this instant, wherein he has this day personally appeared before me, and solemnly swore that they struck, kicked, and whipped him, so as to mangle his body most cruelly,” and given under the hand and seal of the justice. The declaration further states, that “ on said warrant is the following indorsement, to wit: “I depute Robert B. Johnson, constable,” which warrant so unlawfully issued as aforesaid, was by the said Flack directed to, and handed over to the said Johnson, deputed as aforesaid, and that Johnson executed the same, by arresting the said Ankeny. This is the substance of the complaint.
This warrant contains every thing that is essential to a valid warrant. It states, in substance, though perhaps not very formally, that Valentine had made complaint, on oath, that he had been violently assaulted and beaten, by Ankeny and others, and the officer was required to arrest the offender and bring him before the justice. See 1 Ch. Crim. Law, 38 to 64. The justice had jurisdiction over the offense charged against Ankeny, and he seems to have fully complied with the 27th section of the act entitled “An act to regulate and define the duties of justices of the peace and constables,” approved 18th Feb., 1823.* So far, then, as issuing the warrant is concerned, the justice acted within the pale of his authority, and the court do not see any thing very objectionable in deputing Johnson to serve it. At common law, a justice may authorize any person whom he pleases, to be his officer, 1 Ch. Crim. Law, 38; and by the fourth section of the act providing for the appointment of constables, approved March 22d, 1819,† it is provided, “ that nothing in this act shall be so construed as to prevent any magistrate in the state from appointing any suitable person to act as constable in a criminal case, where there is a probability that the criminal will escape,” &c. The only possible objection that is perceived to the appointment of Johnson, is, that in the deputation, it is not stated that “there is a probability that the criminal will escape:” If magistrates were always held liable for every trifling mistake they commit in the performance of their various official duties, few persons would be found willing to accept an office of so little profit, and attended with such great risk. Courts, therefore, from necessity, are bound to view their acts with reasonable indulgence, and if they are governed by good faith, and act within their *189jurisdiction, they ought not to be held liable for errors of judgment in matters of mere form. The justice had power, at common law, to make the appointment in the manner he did, but if it should be supposed that the statute has impliedly taken away this power, still, as the justice has the power to make the appointment on a certain contingency, it seems no unreasonable presumption that the contingency existed that gave him the power to appoint in the manner he has done.
Cowles, for plaintiffs in error.
Young and Hall, for defendant in error.
The rule, applicable to cases of this kind, is well laid down by the supreme court of New York, in the case of Butler v. Potter, 17 Johns. Rep., 145. The court there say, “we have decided that where a justice has jurisdiction to issue an attachment, but proceeds erroneously in doing so, he is not, therefore, a trespasser. The distinction is this: where the justice has no jurisdiction, and undertakes to act, his acts are coram non judice, but if he has jurisdiction, and errs in exercising it, then the act is not void, but voidable, only.” The declaration does not negative the idea, but that the justice acted upon the belief of “ the probability that the criminals would escape.” For any thing that appears in the declaration, the justice acted perfectly right in deputing Johnson to serve the warrant, but if he erred in this respect, still it can not be said but that he had jurisdiction over the question, and this is sufficient for his justification. If the justice is not liable, there can be no pretense for sustaining the action against Johnson. The judgment must be reversed with costs, (a) , (1)
Judgment reversed.