The opinion of the court was delivered by
Rowell, J.The statute provides that complaints and prosecutions for theft shall be commenced within six years after the commission of the offense, and that if a complaint, an information ■or indictment is brought, had, commenced, or prosecuted after the time limited as aforesaid, “ such proceeding shall be void and of no effect.” The complaint exhibited to the .defendant on November 12, 1880, alleged the offense to have been committed on September 20, 1874, more than six years before the bringing of the complaint, and the (prest-ion is, whether the defendant had any authority to cause the plaintiff to be apprehended and committed to prison.
It is an elementary rule in criminal pleading that when the time for prosecuting an offense is limited, the indictment must lay the offense within the time limited, or it will be fatally •defective, even after verdict. 1 Am. Crim. Law, s. 445; State v. G. S., 1 Tyler, 295; State v. Rust, 8 Blackf. 195; People v. Miller, 12 Cal. 291; People v. Gregory, 30 Mich. 371.
In this case the complaint showed on its face that the statute had run on the offense charged, and thus the defendant had notice that it was “void and of no-effect.” He had no authority to issue a warrant on such a complaint; and the fact that it was made to appear to him at the time the complaint Avas exhibited that the larceny had not been discovered till then makes no difference, as the statute began to run. from the commission of the offense, not from its discovery. There was no complaint in laAv. It is the same as though there had been none in fact. He had no jurisdiction of the process, and jurisdiction of the process is as essential as jurisdiction of the person and the subject matter. In Morgan v. Hughes, 2 T. R. 225, it. is said that when a person is committed to prison by the Avarrant of a justice Avithout *116accusation, some one is guilty of false imprisonment, and that it must be the imprisonment of the justice, who is the immediate and not the remote cause of it. In this State the law makes the same presumption, in favor of the jurisdiction of justices that it does in favor of the ■jurisdiction of superior courts of general jurisdiction. Wright v. Hazen and Gordon, 24 Vt. 143. Brit, presumptions are indulged in only to supply the absence of evidence or averment respecting the facts presumed. They have no place for consideration when the evidence is disclosed or the averment is made. When, therefore, the record states the evidence, or contains an averment with reference to a jurisdictional fact, it will be taken to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, nor that the fact was otherwise than as averred. Galpin v. Page, 18 Wall. 350; Wade v. Hancock, 14 Reporter 672; Freeman Judg. s. 125. Hence it cannot be presumed that the allegation of time in this complaint was a mistake, and that the evidence may have shown that the offense was in fact committed within the time limited. The case must stand on the presumption and ground that the offense was in fad committed more than six years before the complaint was exhibited. It does not stand as it would had the complaint laid the offense within the time limited, but the evidence had shown it without the time. Magistrates of neither superior nor inferior courts are answerable for a want of jurisdiction arising from a mistake of fact that they had no means of discovering nor corree,ting, nor when they would have had authority to act had the facts been as alleged by the party. Lawther v. The Earl of Radnor, 8 East. 113; Pike v. Carter, 3 Bing. 78; 1 Smith Lead. Cas. 1135. In Aiken v. Richardson, 15 Vt. 500, it was held — as it has been since in Muzzy v. Howard, 42 Vt. 23 — that under the statute against arrest and imprisonment for debt there was no competent jurisdiction to issue a capias without the requisite affidavit, and that the case was analogous to the cases that proceed on the ground that jurisdiction of the process is as essential as jurisdiction of the person and of the subject matter. And *117Smith v. Bouchier, 2 Str. 993, was referred to approvingly, which was trespass and false imprisonment against five, who justified under process of the University of Oxford, for that by the custom, a plaintiff making oath that he had a p'ersonal action against any party within the precincts of the university, and that he believed the defendant would not appear but run away, the judge might award a warrant to arrest him, and detain Mm till security was given for his answering the complaint; that the defendant Bouchier made a complaint to the defendant Shippen, the vice-chancellor, of a personal action against the plaintiff, and that he suspected the plaintiff would run away; that he took his oath of and upon the truth of the premises, upon which a warrant was granted to the other defendants, whereon plaintiff was arrested. The court held that the custom was not pursued, for that by it the plaintiff was to swear to his his belief of the defendant’s design to run away, whereas he only swore that he suspected it, which was not the same thing; and the plaintiff had judgment against all the defendants. Wright v. Hazen and Gordon, supra, was case for false imprisonment against the party and the justice for an arrest for debt without the requisite affidavit. As to the justice, the pleadings left the case to stand on the fact that the plaintiff was a resident citizen at the time the writ issued, so the plaintiff had judgment on the pleadings ; but in view of a repleader being awarded, the court said that all it would be necessary for the justice to show was, that' the original writ described the plaintiff as a non-resident, and that he signed it supposing such to be the fact, having no mode of trying that question in advance, and that he was not'bound to, know at his peril the facts limiting his jurisdiction. This holding would make the justice liable if the original writ described the plaintiff as a resident, unless the requisite affidavit was filed, for he would then have knowledge of the facts that limited his jurisdiction.
In Carleton v. Taylor, 50 Vt. 220, it is said to be a well settled rule of law that when the court had no jurisdiction of the process it is nugatory and void, and that all persons acting under it are without protection; that if, under our statute exempting *118from arrest in suits on contracts, the process issues against one not of the class named, or without compliance with the prescribed condition, it issues without warrant of law, and the court has n/> jurisdiction of the process,
In Merrill v. Thurston, 46 Vt. 732, a justice was held liable where the plaintiff was committed on a warrant issued to bail in a recognizance for an appeal in a liquor prosecution, the recognizance not being one authorizing a surrender of the principal in discharge of bail. That was a stronger ease for the defendant than this, for there the facts may fairly be said to have given the defendant colorable jurisdiction, and to have called upon him to decide whether he had jurisdiction and authority to act or not; while here the facts presented had no color of legal value, and tlie defendant’s action in the premises was but the commission of an official wrong.
Whatever the decisions elsewhere have been on the subject— and they are not uniform — we deem it impossible to sustain this plea without overruling several decisions of this court that have long been recognized and practiced upon as the settled law of the State.
Judgment affirmed, cause remanded, and repleader awarded on the usual terms.