The ground on which Clarke, the plaintiff in the first named suit, was discharged, on the return of the writ of habeas corpus, from the imprisonment to which he had been sentenced by the defendant May, was, that under the Rev. Sts. c. 94, §§ 5, 6, and St. 1838, c. 42, by virtue of which justices of the peace are empowered to punish for contempt persons, duly summoned to testify before them, who fail or neglect to appear, without reasonable excuse, no authority was conferred to punish contempt by a separate and independent proceeding; but that the power and jurisdiction of magistrates in such cases was only incidental and auxiliary to the trial of the cause in which the witnesses were summoned; and could not be legally exercised, except during the pendency of such cause; that after its final disposition by a judgment, the authority to punish such contempt ceased, and that Clarke was therefore illegally committed.
The decision in that case is decisive of the liability of the defendant May in the present actions. Although he had jurisdiction of the subject matter, he was empowered by law to exercise it only in a particular mode, and under certain limitations. Having disregarded these limitations, and exercised his authority in a manner not sanctioned by law, he has been guilty of an excess of jurisdiction, which renders him liable as a trespasser to the party injured. The rule of law, by which magistrates are held responsible in such cases, and the authorities in support of the rule, are fully stated in Piper v. Pearson, ante, 120.
It is undoubtedly true that judges and magistrates cannot be held liable in trespass for acting without jurisdiction, or for exceeding the limits of their authority, where the defect or want of jurisdiction is occasioned by some facts or circumstances applicable to a particular case of which the judge or magistrate had neither knowledge nor the means of knowledge. In other words, if the want of jurisdiction over a particular case is caused by matters of fact, it must be made to appear that they were known, or ought to have been known, to the judge or magistrate, in order to hold him liable for acts done without jurisdiction. Otherwise the maxim ignorantia facti excusat applies. Pike v. *413Carter, 3 Bing. 78, and 10 Moore, 376. Lowther v. Earl of Radnor, 8 East, 113. Calder v. Halket, 3 Moore P. C. 77. But the case at bar does not fall within this qualification of the general rule. The defendant May was cognizant of all the facts, which constituted the defect of jurisdiction in the proceedings against the plaintiff.
In regard to the liability of the other defendant, Kent, who, as a constable, served the capias and committed the plaintiffs to jail upon the mittimus, a different rule is applicable. The magistrate had jurisdiction of the subject matter; the irregularity, which constituted an excess of jurisdiction in him, and for which he is liable, did not appear on the face of the capius or the mittimus, which were regular in form, and contained nothing from which any defect or excess of jurisdiction could be known or inferred by the officer. He was therefore serving a process, regular on its face, in a matter of which the magistrate had, apparently, entire and perfect jurisdiction which he had properly exercised. In such cases, the rule is well settled, that the officer cannot be held liable. His warrant being regular on its face, and being issued by a magistrate having jurisdiction over the subject matter, affords a full justification for all acts done by him in its lawful execution. 1 Chit. Pl. (11th Amer. ed.) 182, note 2. Donahoe v. Shed, 8 Met. 326. Fisher v. McGirr, 1 Gray, 45, 46. Kennedy v. Duncklee, 1 Gray, 71.
The result is, therefore, that the plaintiffs in both cases are entitled to judgment for their damages against the defendant May; and in the second case, the defendant Kent is entitled to judgment.