In support of the judgment below, it is urged that justices of the peace are officers of limited jurisdiction; that whenever a particular manner is prescribed, by which that jurisdiction is to be exercised, they are bound to pursue it; and that by a material departure therefrom, the case is coram non judice, and void. That the statute requires the affidavit shall set out particular facts, to authorize a justice to issue an attachment; that such affidavit alone can be a sufficient foundation for this writ: that in this case, a fact is stated in the affidavit, which even if it existed, would not authorize the process, for which reason the judgment against the defendant in the suit thus commenced, is void; that if this be true, the judgment against the garnishee must be void also.
Many cases have been cited by the defendant’s counsel, some of which it is admitted, prove that in England, the judgment against the defendant to the attachment, would have been void. It is very doubtful, however, if the reason of those cases would apply to the present. All of them are cases in which suits have been brought against the justice, to recover damages on account of an injury inflicted by him, in consequence of his having' exceeded his jurisdiction, or against officers who have obeyed illegal mandates, issued by such justices. In no case which has been cited, have third persons Seen made responsible, for obedience to the illegal judgments of magistrates, of the illegality of which, they had not notice in fact or in law. Every officer is presumed to know his duty; therefore, if a sheriff or other ministerial officer, execute process which ■emanates from an illegal source, he is considered as guilty of a wilful departure from duty, and liable to repair the injury inflicted, by making satisfaction in damages. If however the process is issued by a person having proper authority, and appears upon its face to be regular, the officer isjustified in executing it, although the process itself was not legally issued. For instance, if a justice of the peace were to issue a mandate, requiring an officer to inflict corporal punishment upon a white man, the officer would be liable in an action of trespass, to the person injured. But if a constable receives a fieri facias, reciting a judgment, &c. regularly issued by a justiee of the peace, com-*330h'™ *° make of the goods and chatties of the de-lendant, a sum of money within a justice’s jurisdiction, ¡t would be to him a justification for making the money out of the defendant’s property, although there never had been a judgment rendered by the justice, or a suit instituted before him, to authorize such execution. In this case the justice was authorized to issue the writs of attachnw garnishment; he had jurisdiction of the subject ms,, it cannot be supposed that the garnishee was apprised oi any irregularity in suing out the attachment. The suing out of the writ of garnishment, was the regular commencement of a suit against him, which was duly prosecuted to judgment. That judgment he discharged, and is after-wards sued upon the same cause of action in this case. No fraud is charged, nor is it pretended but that lie has acted an honest part in the whole transaction. I cannot think that any precedents impose upon us the necessity of making him pay the money again.
How far this Court would go in modifying and varying the decisions which have been made in the Courts of Westminster Hall, against justices of the peace, it is unnecessary now to determine. Our statute book proves that the legislature has been continually adding provisions to facilitate amendments of their proceedings, and to cure defects in them, which otherwise would have been fatal. There certainly are many cases in which these magistrates would be protected here,in which English decisions would make then} liable. It is believed however in this case, it is not necessary to change any rule of decision, to be authorized to reverse the judgment. The justice had jurisdiction of the subject matter on which the attachment was sued out; the suit was simply commenced by writ of attachment. instead of a warrant or summons; we are not to go beyond the process by which the suit was instituted, to make the payment rendered in the ease a. void one. If the affidavit which the statute prescribed to authorize the writ was insufficient, the proceedings were defective and voidable, but not void; they afforded sufficient data for the writ, and judgment against the garnishee. The judgment must be reversed and the cause remanded, and of this opinion i* the whole Court.
He versed and remanded.