dissenting:
The collector’s warrant, here, was legal and regular upon its face—what the officer did was but in obedience to its command. I take the rule of law to be, as laid down in Erskine v. Hohnback, 14 Wall. 613, that if the officer or tribunal possess jurisdiction over the subject matter, and its order or process to the ministerial officer is regular on its face, showing no departure from the law or defect of jurisdiction, the order or process will give full and entire protection to the ministerial officer executing it against any prosecution therefor, and that the officer is not to be affected -as to this rule of protection by anything he may have heard or learned outside of the process. Webber v. Gay, 24 Wend. 485; The People v. Warren, 5 Hill. 440; Watson v. Watson, 9 Conn. 140; Taylor v. Alexander, 6 Ohio, 147; Wall v. Trumbull, 16 Mich. 234; and see Twitchell v. Show, 10 Cush. 48; Wilmarth v. Burt, 7 Metc. 257. The latter I conceive to be the established doctrine under the authorities, and that it is the sound and salutary rule. By the protection it affords to the officer, its tendency is to secure prompt and unhesitating obedience, by executive officers, to the commands of the law.
I find no decision of this court requiring the adoption of a contrary rule. There are what are mere dicta to be found, that the officer may be affected by his knowledge of matters outside of the process, beginning with and following the unwarranted dictum, to that effect in Barnes v. Barber et al. 1 Gilm. 406, which rests upon a seeming misapprehension in that respect of the rule upon the general subject of justification under official process laid down in the leading case of Savacool v. Boughton, 5 Wend. 171, which rule the case of Barnes v. Barbour et al. assumes to adopt and follow.
I see no ground upon which to base the charge of appellant inducing the extension of the tax. His making a certificate of a fact which appeared upon the files of his office as town clerk should not render him chargeable with such a result. The county clerk was induced, from his own sense of duty, to extend the tax and make out and deliver to the collector the tax book with the warrant annexed. It would be unwarrantably rigorous to charge a town clerk with such an act of the county clerk, which the latter should, solely of his own motion and as a supposed official duty, perform, in view of such a certificate, and nothing else. The act would not be a natural and legal consequence to found a legal liability upon.