delivered the opinion of the Court.
The defendant below, having proved that he took the property by virtue of a legal execution, insists that it is a sufficient justification for the officer, without producing and proving the judgment on which the execution issued. No objection appears to have been made by the plaintiff below, on the trial, to the proof of the execution, without proof of the judgment. He subsequently, however, proved the judgment himself; and he contends,
1. That the judgment was void, not having been entered in pursuance of the provisions of the statute. R. S. 389, §2.
2. That it appears from the docket of the judgment, that it had been paid previous to the issuing of the execution.
1. The statute, (R. S. 389, § 2,) authorizes a justice of the peace to enter judgment by confession, “ Provided such confession shall be in writing, and signed by the person making the same, in presence of the justice and, one or more competent witnesses.” The justice derives his authority to enter the judgment solely from the statute, and the confession of judgment should show that the statute was complied with. It does not appear from the entry of the judgment, that the confession was written and signed in the presence of the justice, and one or more competent witnesses. Although the statute does not say that the justice and the witnesses shall subscribe their names as witnesses, still, no person can be a witness to the execution of a written instrument, without subscribing it as such; and it was *203clearly the intention of the legislature that the witnesses should so subscribe. The statute not having been complied with, the judgment was a nullity. Tenny v. Tiler, 8 Wend. 569. The consent of the party cannot make a void judgment valid. Id. The justice, therefore, had no jurisdiction over the person of the defendant.
2. Admitting the judgment to have been valid, if it had been paid, the justice had no power to issue the execution upon it. On the 6th day of February, 1841, the justice, in his official capacity, made an entry on his docket, that the judgment for damages and costs was paid. This was prima facie evidence that the judgment had been paid and satisfied, and no execution could subsequently issue on the judgment, without showing that this entry was erroneous. The subsequent entry, made by John Hovey, in his individual capacity, and without date, was not evidence in itself. If the plaintiff below placed any reliance» upon it, testimony should have been introduced to explain it. None was offered, and the Judge was right in directing the jury to disregard it.
But the plaintiff in error insists, that notwithstanding the judgment may be void, or may have been paid, still, the execution is a perfect justification to the officer, and that it is not necessary for him to produce the judgment upon which the execution was founded; and he relies upon the case of Savacool v. Boughton, 5 Wend. R. 170.
This case was an arrest of the person ; and it was held that “a ministerial officer is protected in the execution of process, whether the same issue from a court of limited or general jurisdiction, although the court have not, in fact, jurisdiction of the case, provided, that on the face of the process it appears that the court have jurisdiction of the subject matter, and nothing appears to apprise the officer, but that the court also has jurisdiction of the person of the party to be affected by the process.”
*204In Earl v. Camp and Stone, 16 Wend. R. 562, which was trespass for taking from his possession pi'operty which the plaintiff had, as a constable, levied upon by virtue of a writ of attachment issued by a justice of the peace, and which process the court held to be void, the court say: “ It is insisted that the plaintiff, being a ministerial officer, should be protected by his process, which was fair on its face, though the magistrate wanted jurisdiction; and so, indeed, he should, within the case of Savacool v. Boughton, 5 Wend. R. 170, and various other cases decided by this court. McQuinty v. Herrick, 5 Wend. R. 240, 243; Wilcox v. Smith, id. 231; Reynolds v. Moore, 9 id. 35, 36, per Sutherland, J.; Alexander v. Hoyt, 7 id. 89; Coon v. Congden, 12 id. 496, 499 ; Rogers v. Mulliner, 6 id. 597. These cases go the utmost length, and the true length, in the protection of ministerial officers.” — “In general they pught not to look beyond the process, and in no case need they do so. The duty is usually to arrest the person, or to take'the goc^ds of another, the latter of which is to be followed by a sale. Savacool v. Boughton, was an arrest of the person. Alexander v. Hoyt, Reynolds v. Moore, and Coon v. Congden, are cases of goods seized and sold. Our later cases are full and pointed upon the want of jurisdiction .in respect to subject matter; and the principle upon which they go is equally applicable to a want of jurisdiction over the person. Accordingly the collector of a militia fine was protected, though the delinquent was exempt from military duty. Fox v. Wood, 1 Rawle, 143.” “ Wherever there is jurisdiction of the process, the law means to make the officer safe in yielding implicit obedience. Even the justice who issued his warrant against a resident freeholder, without previous summons or oath, was, in Rogers v. Mulliner, 6 Wend. R. 599, protected within this principle.
“But the rule is one of protection merely ; and beyond *205that is not meant to confer any right. The armor which it furnishes, is strictly defensive. It is personal to the officer himself j and cannot be used to confer any right upon the wrong-doers, under color of whose void proceedings he is .called upon to act. ‘ Suppose he goes on and makes sale of the property levied upon ; even the innocent purchaser takes no right. To perfect his title, he must shew a valid judgment; a solid foundation for the process. This is emphatically so of the party who instituted the proceedings.” “ In no case where an officer becomes satisfied that there is a want of jurisdiction, is he bound to act in any way. He has a discretion, if he choose to exercise it; and if he refuses in the first instance, the party cannot make him accountable. In Albee v. Ward, 8 Mass. R. 79, the officer had made an arrest and suffered an escape upon a justice’s execution, whereby the plaintiff lost his debt. In an action for the escape, though the execution was fair on its face, and imported jurisdj the officer was allowed to protect him that it was issued without authority. WtSPthe court' lowed that it furnished a complete protectory against an action of trespass. This is following out the long settled j,-] >LIffifaA-.i2S9jkl lod^^f distinction laid down by Hale, C. J. Anon. Vern. 259; in and which was adjudged in Squibb v. Hote, 2 Mod. 29; 1 Freem. 129, S. C. The same distinction is laid doWn obiter, by Parsons, C. J. in Dillingham v. Snow, 5 Mass. R. 558, with respect to a collector of taxes.”
These cases establish the principle, that a ministerial officer is protected by his process, which is fair on its face, although the magistrate wanted jurisdiction, if he is proceeded against as a tort feasor ; but in no other case will it protect him, unless he shows a valid judgment.
This is an action of replevin, and the proceedings are in rem. • The person found in possession of the property, is not called upon to respond in damages as a trespasser, *206for the value of the property; he is merely summoned to appear and answer the plaintiff for the unjust detention of the property. The issue to be tried is, who had the right of property. The question does not arise whether the defendant was a trespasser or not, as the property which the officer has levied upon, is not held by him for his own benefit, but for that of the party for whom he acts. “ It is for every substantial purpose, his action; and if it be obvious he has no right, it necessarily follows that the officer has none. The latter comes en mitre droit, and must stand or fall upon the claim of his principal. Per Spencer, J. in Hotchkiss v. McVicar, 12 John. R. 403, 408. It is not logical in any sense for him to say, ‘ I am privileged in an act of force, which I do suddenly, according to the command of my writ. The law will protect me in obeying the process which it has authorized another to create ; therefore, I acquire a property; nay, another, a wrongdoer, shall take an interest or property, in virtue of that act.’ ” 5 Wend. R. 568. Who is to take the money assessed for the value of the goods, if the right of property should be found in the defendant ? Not the party who caused the execution to be issued; for his judgment "was void or had been paid; and, if paid, it must remain a God-send to the officer ; no person could receive it out of his hands.
In all cases of replevin, I have always considered the rule well settled, that if a party claimed to hold the property by virtue of a levy under an execution, he must in the first place show a valid judgment for the foundation of that execution, in order to sustain his right to the property.
In this case, although the defendant did not introduce the judgment, which he was bound to do, before he introduced his execution, still, the plaintiff having done so, it would have supplied that defect in the proof, (as there *207were no objections made to the execution,) if it had been a valid judgment. But it having been shown that the judgment was void, and if not, that it had been paid, the execution, though regular on its face, was also void, and formed no defence for the officer.
Judgment affirmed.