The defendant was city marshal and chief of police of the city of Bangor at the time of the acts for which this suit is brought.
In pursuance of what he says is the universal practice where a warrant is served by a policeman, he subscribed as " constable of Bangor ” the returns made upon a warrant issued from the police court against the plaintiff upon a charge of evading payment of his fare upon a railroad running into the city, and upon a mittimus issued by said court for failure to comply with its order that he should recognize with sureties for his appearance before the Supreme Judicial Court to answer to said charge. The defendant, though otherwise legally entitled to constabulary powers had vacated that office by his acceptance of the office of justice of the peace after qualifying as constable and before the date of the arrest. He cannot, therefore, justify as constable any *491interference with the liberty of the plaintiff. Pooler v. Reed, 73 Maine, 129.
The defendant now seeks to avoid liability upon the ground that the testimony tends to show that the arrest and commitment were both, in fact, made by one Wentworth, a policeman. We think he cannot thus evade the responsibility which he assumed when he made the returns. The remarks of WhitsiaN, C. J., in Haynes v. Small, 22 Maine, 16, apply with increased force in cases where the personal liberty of the citizen has been invaded colore officii. See also Cowan v. Wheeler, 31 Maine, 439.
.Moreover there is evidence sufficient to prove that the commitment to the jail was made in the presence and by the direction of the defendant as chief of police to his subordinate, the policeman, and though it was doubtless done under the order of the police court, it was without the formality of a written mittimus and return, which were not prepared until a day or two afterwards; and this act was deliberately adopted by the defendant ■when he subscribed the return. The whole business was loosely done, and under such circumstances as to make a technical justification by the defendant impossible. Yet if the only wrong done by the defendant to the plaintiff had been the performance of an act which a duly qualified officer having the proper precept in his hands might have justified, it would be difficult to see how the plaintiff suffered more than a nominal damage by reason of the defendant’s doing a duty which properly belonged to another. But the mittimus, the execution of which was the chief cause of damage to the plaintiff, shows on its face that the court had no jurisdiction to issue it, and it would not protect the defendant, had he been a legally qualified constable.
The offence with which the plaintiff was charged was first defined in chapter 107, laws of 1854, and the penalty there imposed " upon conviction thereof, before any justice of the peace in any county where such offence may have been committed,” was " a fine of not less than five nor more than twenty dollars for every such offence.” The statute was much condensed in the revision of 1857, but neither the penalty nor the jurisdiction has been changed by that or the subsequent revisions under which the offender "forfeits not less than five nor more than twenty *492dollars to be recovered on complaint.” The word " complaint ” is used here in contradistinction from indictment, and of itself designates the courts which are to try and dispose of such charges. Compare E. S., of 1871, c. 131, § 13, with the corresponding provisions in E. S., of 1841, c. 167, § § 13 and 14. Neither the district nor the Supreme Judicial Court ever entertained criminal complaints, except when presented on appeal, or through the intervention of the grand jury, in the form of indictments.
The plaintiff says he was not guilty of the offence charged and he had a right to have his case determined then and there before the police court, and should not have been subjected to the additional burden of finding sureties for his future appearance in a strange place far distant from his home.
Such an order was almost sure to result, as it did, in his incarceration, from which he was, however, promptly relieved on habeas corpus.
Now a warrant issued by an inferior court, when it is apparent on its face that the court has no authority to act, or has exceeded its authority, will not protect the officer who executes it. Gurney v. Tufts, 37 Maine, 130, and cases there cited. Thurston v. Adams, 41 Maine, 422.
The defendant’s justification fails at all points, and he must compensate the plaintiff for his loss of time and expenses in procuring his liberation.
But there is nothing to indicate that the defendant was acting vindictively or with a design to oppress, nor otherwise than as he supposed his duty required.
That two days were allowed to elapse before application Avas made for the plaintiff’s discharge was rather the fault of the plaintiff than of the defendant.
The plaintiff should have compensation for one day’s detention, and his expenses, and the lapse of time since the occurrence is to be regarded in estimating the damages.
Judgment for pla,intiff for ‡37.50 damages.
AppletoN, C. J., WaltoN, DaNeorth, Peters and Libbey, JJ., concurred.