The defendant having jurisdiction to issue warrants for the apprehension of persons, for violating the provisions of the “ act to prevent intemperance, pauperism, and crime,” could not be made liable in a civil action for deciding that a warrant should issue on insufficient evidence. In determining whether there was sufficient evidence to authorize the issuing of a warrant, he acted judicially; and he is not liable while thus acting even, if he erred in judgment. (Horton v. Auchmoody, 7 Wend., 200; Tompkins v. Sands, 8 Wend., 462, 19 Wend., 56, 1 Den., 537, 540, and 590; Payne v. Barnes, 5 Barb., 467, 3 Den., 117, 1 Kern., 573). But in making the warrant and delivering it to the officer he acted ministerially. (Rogers v. Mulliner, 6 Wend., 597 & 603, 8 Wend., 462; Van Rensselaer v. Whitbeck, 3 Seld., 521; Houghton v. Swarthout, 1 Den., 589.) “ Where ministerial duty is violated, the officer, although for most purposes, a judge, is still civilly liable for such misconduct.” (Wilson v. Mayor of N. Y., 1 Den., 599, Barb. Cr. Tr., 429 cb 430, and eases cited). *
The main question to be decided is whether the warrant is void on its face. If it is, then it will not protect the defendant, although he acted in good faith, and was authorized by the evidence before him, to issue a valid warrant. The defendant was bound to see that his process was valid on its face. Good faith does not excuse him for causing the plaintiff’s arrest on a process that charged him with no offence against the laws of his country. I do not think the cases in 6 Wend., 597, 7 Ib., 200, 8 Ib., 462, and 1 Den., 589, establish a contrary proposition. The officer who executes process must see that it is valid on its face, or he is liable for his acts under it. “ The law does not throw any protection round the person who attempts to arrest by an illegal warrant.” (Housin v. Barrow, 6 Durn. & E., 122.) “ The writ or warrant must not be deficient in the frame of it.” (Barb. Cr. Tr., 34 & 35, Ib., 82 & 83, Ib., 464 & 465). “ It must be lawful on the face of it.” (Sandford v. Nichols, 13 Mass. R., 285.) It would be unjust to hold the officer liable for executing an illegal warrant, and excuse the magistrate who issues it. The latter is presumed to be more capable of judging of the validity of the process he issues than the former who merely executes it.
*473Prior to the He vised Statutes it was held that in no case was it indispensable that a warrant issued by a magistrate upon a criminal complaint, should state upon its face the offence charged, although it was advisable to set forth the substance of the complaint. (Atkinson v. Spencer, 9 Wend., 62; Payne v. Barnes, 5 Barb., 467, Barb. Cr. Pr., 457 & 458). But the Revised Statutes changed the law, and provided — “ Whenever complaint shall be made to any such magistrate that a criminal offence- has been committed, it shall be the duty of such magistrate to examine on oath the complainant and any witnesses who may be produced by him.” (2 Rev. Stats., 706, § 2). “ If it shall appear from such examination that any criminal offence has been committed, the magistrate shall issue a proper warrant under his hand, with or without seal, reciting the accusation, and commanding the officer to whom it shall be directed forthwith to take the person accused of having committed such offence, and to bring him before such magistrate to be dealt with according to law.” (Ib., § 3).
It was necessary in this case that the offence charged on the plaintiff should be stated in the warrant, for it was triable before the defendant as a magistrate holding a court of special sessions. (Laws of 1855, 343, § 5). After a court of special sessions is organized for the trial of an offender, “ the charge made against the defendant as stated in the warrant of arrest, or commitment, shall be distinctly read to such defendant, who shall be required to plead thereto. (2 Rev. Stats., 712, § 7, Barb. Cr. Tr., 458).
The warrant in this case does not state the place, where the plaintiff sold intoxicating or alcoholic liquors, which it should have done. (Howell v. The People, 2 Hill, 281). A court of special sessions can only “ try charges for crimes arising within their respective counties.” (2 Rev. Stats., 711, § 1, Barb. Cr. Tr., 550). If the town where the offence arose had been stated it would have been sufficient. (Van Derwerker v. The People, 5 Wend., 530; Wood v. Randall, 5 Hill, 265, & 271). The place where the offence was committed was a material part of the accusation against the plaintiff. (2 Hill, 281, Payne v. Barnes, 5 Barb., 465, 5 Wend., 530; Bradstreet v. Ferguson, 23 Wend., 638; Blasdell v. Hewitt, 3 Cai. 138, Barb. Cr. Tr., *474458). The case of Stewart v. Hawley, (21 Wend., 552,) does not necessarily conflict with this position. That was a proceeding for violating the statute “ of the observance of Sunday.” (Rev. Stats., 675, § 70). In such a case, the statute does not require that the warrant should contain the accusation. All it says is that the magistrate to whom the complaint is made, “shall cause the offender to be brought before him, and shall proceed summarily to inquire into the facts.” (1 Rev. Stats., 676, § 73). It has been held in such a case that it is not necessary that process should actually issue. (Foster v. Smith, 10 Wend., 377).
The general allegation in the warrant that the plaintiff sold “ intoxicating or alcoholic liquors,” was insufficient. More certainty is required. (Blasdell v. Hewitt, 3 Cai. 138 ; Houghton, v. Strong, 1 Ib., 485; 1 Greenl. Ev., § 78, § 79). The warrant was very loosely drawn. It shows it was issued on the mere belief of the witnesses who were examined before the defendant; whereas they testified to facts showing a sale of liquor within the town of Lansing, contrary to the law of 1855, and the kind of liquor sold. It seems singular that a warrant could be drawn containing so few facts essential to its validity, when enough to make a valid one were proved before the magistrate who drew it. But so it is, and the defendant must be held liable for its defects. They are so glaring that it is void on its face; and it affords no protection to the defendant or the officer who executed it.
The defendant claims a new trial, on the ground that the plaintiff was not entitled to damages for the time spent and expenses incurred by him in procuring his discharge by the writ of habeas corpus. It is insisted that the habeas corpus was wholly unnecessary, for the reason that the plaintiff was allowed to go where he pleased without restraint, as soon as the issue was joined before the defendant on the 26th of July, and that he could not have been retaken and carried before the defendant on the adjourned day. This is not entirely certain. The defendant was accused of a misdemeanor. At common law a defendant might be tried for a misdemeanor, in his absence, after he had once appeared. (4 Black. Com., 375; The People v. Wilkes, 5 Bow. Pr. R., 107). The common *475law is so far changed by statute in this State that no person who is indicted for a misdemeanor can be tried unless he be present, either personally or by his attorney, duly authorized for that purpose. (2 Rev. Stats., 734, § 13). A person convicted of a misdemeanor may be sentenced to pay a fine although he is not present in court. (Sorr v. The People, 12 Wend., 344; The People v. Taylor, 3 Den., 98, note a.) The plaintiff was only liable to a fine, if he had been convicted in the proceedings before the defendant. (Laws of 1855, p. 343 § 4). It has been decided that a party against whom a void judgment is rendered, may, notwithstanding, seek its reversal. (Stricker v. Mott, 6 Wend., 465). Perhaps it was unnecessary for the plaintiff to procure his discharge by habeas corpus before bringing his action, (Deyo v. Vanvalkenburgh, 5 Hill, 246 & 247), but it is not perfectly clear, but that the defendant might have gone on, and tried and sentenced the plaintiff to pay a fine, in his absence; and then issued process for its collection, had not the plaintiff obtained the habeas corpus. As the statute forbidding the trial of a defendant when absent applies only to trials on indictments, which do not pertain to courts of special sessions, to relieve the defendant from liability for the damages the plaintiff sustained in procuring his discharge by habeas corpus from the proceedings before the defendant, the same must have been palpably unnecessary, which was not the case. It was matter of prudence on the part of the plaintiff to obtain his discharge, and the defendant was properly held liable for the expense thereof. I am also of the opinion the plaintiff did not waive or lose his right of action for his illegal arrest and detention by joining issue without objection before the defendant. (1 Selden, 544, 17 Wend., 91).
The defendant having acted in good faith, it is to be regretted that he did not act legally in all he did; and thus save himself from all liability. The action is technical, and is sustainable only by reason of mistakes in the form, or rather substance of the.warrant, issued by the defendant; but from such mistakes a cause of action has accrued to the plaintiff. The plaintiff is therefore entitled to judgment on the verdict.