By the Court,
Clinton, J.The first objection to the indictment is, that it does not show that the justice of the peace who issued the warrant had jurisdiction to do so. The warrant which, it is claimed, recites the facts necessary to confer the power to issue it, is set forth in full. In Bradstreet v. Ferguson (23 Wend., 638), which was an action of trespass against a magistrate for issuing a warrant for the plaintiff’s arrest, under the act for the prevention of crime, the Court for the.Correction of Errors held that a formal complaint in writing and upon oath was necessary to confer jurisdiction, but that the recitals in the warrant were prima facie proof of such complaint. In the words of Chancellor Walworth, delivering the opinion of the court: “A recital of a fact of this kind, in a warrant for the arrest of a party, when the magistrate would be guilty of a breach of his official oath if the recital was intentionally false, is presumptive evidence of the truth of such recital, and it lies upon the party denying the jurisdiction which depends on that fact, to show that the recital is false.” This decision disposes of the mere question of evidence, but does not necessarily reach that of pleading. Assuming that the warrant recites all the facts necessary to confer the authority to issue it, the indictment does not aver those facts, but merely shows that the magistrate set them forth in the warrant as true. The People did not in their bill allege that they were true, nor has the grand jury, by finding the bill to be true, found that the magistrate had jurisdiction to issue this warrant.
Upon this question of pleading, I have no doubt. It is clear that in pleading the judgments or proceedings of inferior courts of special and limited jurisdiction, and of magistrates and officers acting under a statute or special authority, jurisdiction must be averred, and the only query has been whether it was sufficient to aver it in general terms; and that has been settled *230for many years in this State. A general averment of jurisdio tion is not sufficient, but the facts upon which it depends must be averred. (Turner v. Roby, 3 Comst, 193.)
Justices of the peace were first instituted by 1 TSdw., 3, ch. 16. Before that there were conservators of the peace of two kinds: first, those who, by virtue of their office, had power to keep the peace, but were known- only by their names of office; and, second, those who were constituted for that purpose only, and were simply called by the name of conservators or wardens of the peace. (Bac. Abr.) In Yarrington's case (Salk., 406), it was said: “Their power is created by act of parliament within the time of memory; and they have no other authority than what is thereby given them.” That they have no common law authority, has been repeatedly, and, I believe, uniformly held to be the law of this State. (Way v. Carey, 1 Caines, 191; Wells v. Newkirk, 1 Johns. C, 20; Bigelow v. Stearns, 19 Johns., 39.) This being so, it was necessary, in order to charge the defendant with a duty, as constable, to execute the warrant, to aver the facts which, and which alone, could confer authority upon the justice of the peace to issue it— that is, that a complaint was made before him, on oath, that the criminal offence had been committed, that he examined the complainant on oath, and found that there was cause to suspect the person named in the warrant as suspected of its commission, and therefore issued it. (2 R. S, 3ded., 793, §§2, 3.) If there were no such complaint, the magistrate had no jurisdiction, and the warrant was in fact void. If void for mere want of jurisdiction, I am of the opinion that the constable was not-bound to execute it, although the law would have protected him for obeying it.
On this ground (which was not raised at the Criminal Term), I am of opinion that the defendant is entitled to judgment.
Judgment reversed, and judgment rendered for defendant.