— The writ of personal replevin is given by R. S., c. 142, to any one imprisoned, restrained of liberty or held in duress, for the purpose of testing the legality of such imprisonment, restraint of liberty or ‘duress, and if proved to be illegal, the plaintiff is entitled tp his discharge and to his costs.
The defendant justifies the arrest of the plaintiff, as a *133constable, by virtue of a warrant issued by the Police Judge of Saco, against him, and the question is, whether such Judge had jurisdiction over the subject matter of the complaint set forth therein, and over the person of the plaintiff, or whether a want of jurisdiction in those respects, or either of them, is apparent on the face of the proceedings.
The warrant must, on its face, show the magistrate’s authority to commit, for no presumptions are to be made in favor of his jurisdiction. However important it may be that an officer should be protected, it should never be forgotten that the citizen has his rights and that they are rights under the law and entitled to its protection. When an officer acts under the authority of a magistrate having jurisdiction, and that fact is disclosed on the face of his precept, he should not be held responsible for the previous omissions of such magistrate. He should not be required to ascertain or determine the validity of prior proceedings, or to look beyond the command of his precept. But if the magistrate issues precepts or orders arrests for acts not known to the law as offences; if he imposes illegal punishments, as if he commands a plain and obvious violation of the law, he can, when thus transcending the bounds of his authority, afford no more protection to an officer than could one not a magistrate. “ If a warrant,” says Reeve, C. J., in Grunder v. Raymond, 1 Conn. 45, “which is against law be granted, such as no justice of the peace or other magistrate, high or low, has power to issue, the justice who issues and the officer who executes it are liable in an action of trespass. When there is a want of jurisdiction over the person, as in the Marshal-sea case, 10 Co. 10, or over the cause, as if a justice should try a man for murder; or over the process, as in the case ruled from Hobart, it is the same as though there was no court. It is coram non judice.” It may be difficult in all cases to distinguish between those cases, where the., acts of an officer are justified by his precept and those in which they are not, but the distinction none the less exists.
If precepts sufficient in point of form are issued by a *134court or magistrate having jurisdiction of the subject matter, the officer -will be protected. Sandford v. Nichols, 13 Mass. 285. Erroneous process is the act of the Court; and when set aside, a party may justify under it. Blanchard v. Goss, 2 N. H. 491. “Those defects in the process which are amendable, and which do not render the process absolutely void, although apparent on its face, do not render the officer or party liable. It is only jurisdictional defects, and such as cannot be amended, which render the officer liable, when they are apparent on the face of the process.” Per Willard, J., in Dominich v. Easter, 3 Barb. 17; Harrington v. People, 6 Barb. 607. In Houlden v. Smith, 14 Ad. & El., N. S., 852, Patterson, J., in reference to the liability of the magistrate by whom process has been issued, where he had no jurisdiction, says, “ here the facts of the case which were before the defendant, and which could not be unknown to him, showed that he had not jurisdiction; and his mistaking the law as applied to these facts, cannot give prima facie jurisdiction or the substance of any.” The warrant may have been issued without complaint or previous process; it may be defective in form and liable to abatement ; it may have been fraudulently obtained, and may be void so far as regards the complainant, or the magistrate; and they may both be liable to the party injured, yet if the warrant is legal on its face, and shows an apparent jurisdiction, the officer will be protected when acting in obedience to his precept. State v. Weed, 1 Fos. 268. But when the warrant shows that the magistrate had no jurisdiction over the person, or over the offence, the officer is not obliged to make service, and in so doing he becomes a trespasser. Pearce v. Atwood, 13 Mass. 344.
The warrant of commitment under which the defendant justifies, after reciting the substance of the complaint, proceeds as follows: — “And a search warrant was issued upon said complaint on said eleventh day of July, and on said day was returned to said Court by Thomas P. Tufts, one of the constables of said town of Saco, to whom it had been *135committed for service, with a return, thereon, certifying that he had seized certain spirituous and intoxicating liquors, and forthwith summoned John Gurney, the owner or keeper thereof, by reading the warrant to him in his presence and hearing, and the said John Gurney did not appear and show cause why said liquors should not be destroyed and he be adjudged and held to pay a fine and costs, and did, not appear or claim said liquors. And said John Gurney, by the consideration of said Court, is sentenced to paya fine to the use of said Saco of twenty dollars and costs of prosecution, taxed at four dollars and ten cents, and stand committed until the same be paid.” The warrant further orders the destruction of the liquors and the commitment of Gurney to jail, and that the keeper of said jail should keep him “until he perform said sentence, or be otherwise discharged by due course of law.” The imprisonment of the plaintiff is required to be until he perform said sentence or be otherwise discharged by due course of law. The magistrate had clearly no authority, even if he had jurisdiction of the person, to impose any such sentence, or to commit for a failure to comply therewith. By the Act of June 2, 1851, c. 211, § 11, the magistrate is only authorized to sentence the owner or keeper of liquors to “ stand committed for thirty days in default of payment, if in the opinion of the Court said liqtiors shall have been kept or deposited for the purposes of sale.” In Robinson v. Spearman, 3 Barn. & Cress. 493, which was an action of trespass against the magistrate, the commitment of the plaintiff was until he should pay the sum due and legal and accustomed fees, or until he should otherwise be discharged by due course of law. The magistrate, by the statute under which he acted was empowered only to commit for three months, unless the money be sooner paid. “I am of opinion” says Abbott, C. J., “ that the warrant in this case was illegal, not being such as the justice had authority to make. It was his duty to have pursued the words of the statute. If he had so done it would have given the party committed the option either *136of paying the money, or staying three months in prison and being thereby altogether discharged from the payment. This warrant is for his imprisonment till he shall pay the money,, and deprives the party of that advantage. The difference is a most material one, and it gives the party committed a right of action against the magistrate.” This decision would-be directly in point, were the suit against the magistrate, instead of the officer.
The plaintiff in this case was never arrested. He was never arraigned, nor has he ever pleaded to any complaint. He has never suffered a default. No proof of his guilt has been offered, nor has any trial been had. The plaintiff has been summoned to appear before the magistrate who received the complaint, and not appearing, he has been sentenced without any trial or adjudication of his guilt. His presence is expressly negatived. No authority over the person is shown. The sentence imposed is one not authorized by the statute, and if it were, it would be in contravention of the bill of rights, which give to every citizen the right “to have a speedy, public and impartial trial.” So far as the authority of the magistrate is' concerned, the sentence might as legally have been to perpetual imprisonment, as in the present form. - All this is apparent on the face of the process, and is thus brought home to the knowledge of the officer. In Savacool v. Boughton, it was held by Marcy, J., after a full and careful examination of the authorities, “ that if a mere ministerial officer execute any process, upon the face of which it appears that the Court which issued it had not jurisdiction of the subject matter, or of the person against whom it is directed, such process will afford him no protection for acts done under it.” The same doctrines were affirmed in Churchill v. Churchill, 12 Verm. 661.
Defendant defaulted.
Tenney, J. concurred. Shepley, C. J., and Howard, J,, concurred in the result.