
    Bullitt vs. Clement.
    APPEAL FROM JEFFERSON CIRCUIT.
    1. When a slave is brought before a justice of the peace as a runaway slar’e, it is the duty of the justice to determine whether or not he be a runaway, and whether the person apprehending the slave shall deliver him to the owner or to the jailer of the county. (Bevised Statutes, 636, in connectton with the act of 1798, Stat. Law, 1411.)
    2. Though the warrant issued by the justice in such case, may not conform literally to the requisitions of the statute, if the omission be not material or prejudicial to the owner of the slave he cannot complain.
    
      3. A justice is not bound to regard the statements of a slave apprehended as a runaway, as evidence; nor is it admitted that a justice is responsible for an error of judgment in committing a slave as a runaway, where there is no malicious or improper design.
    The facts of the case are stated in the opinion of the court. Rep.
    
    
      Bullitt <5* Smith for appellant—
    The only question for discussion is whether or not the slaves were runaways, and whether appellee did not know their owners, and whether he had a right to order them to be imprisoned. The doctrine exempting judicial officers from errors of judgment is not questioned where they have jurisdiction; and that a justice occupies a position' as favorable as the highest judicial officer. What we contend for is, that where a judicial officer exceeds his jurisdiction, by doing an act which he has no authority to do under any circumstances, and the error and excess of jurisdiction appear upon the face of his proceedings, the proceeding is void, and the officer liable as any other individual would be for a similar act. In this we are sustained by numerous authorities.
    The only authority for the appellee is the 93d chapter of the Revised Statutes, 636. Under that act, where a slave is arrested and brought before the justice as a runaway, the justice is required, if he finds reasonable cause to suspect that the slave is a runaway, to give a certificate of that fact, describing the slave, the owner if known, &c., and by his precept indorsed thereon command the apprehender to deliver the slave to the jailer of the county, or if the owner is resident in the county of the justice, to deliver the slave to his owner. The appellee did not give the required certificate, nor indorse the precept as required, but issued his warrant to the jailer commanding him to imprison the slave.
    This objection to the proceeding of the justice is not merely formal. The framers of the statute while giving the apprehender a reward intended to require a corresponding service. It is important that the court shall decide whether it be the duty of the apprehender or the justice to inquire and ascertain whether the owner of the slave reside in the county. .No inquiry seems to have been made by either.
    The authority to act in this case being by statute’, it should have been strictly pursued, which was not' done. There was no authority to issue the warrant of commitment to the jailer.
    Appellee’s counsel admit liability if there was no' jurisdiction, but insist that the slave was rightfully brought before the appellee, and that, if the issuing of the warrant to the jailer was an error, it was a judicial error in a matter within his jurisdiction, for which' there is no responsibility.
    The rule relied on by appellee is thus stated in Starkié's Evidence, vol. 2, 585, 6: “It seems to be a ‘ settled rule that a conviction still subsisting and' * valid on the face of it, on a subject within the ju- ‘ risdiction of the defendant as a magistrate, is a le- ‘ gal bar to an action done under such conviction'.” But he adds: “It is otherwise when the subject mat- ‘ ter is not within the jurisdiction of the magistrate, * or where it appears from the conviction itself that he has ‘ been guilty, of an excess of jurisdiction.” Ib. 586,7. Numerous cases are cited in the text and notes in support of the latter proposition. We ask particular1 attention to the cases of Crepps vs. Durden, Cowper, 646, and Baldwin and wife vs. Blackman, 1 Burrow, 595-602, decided by Lord Mansfield. In the last' case the defendant, who was a magistrate, was authorized by statute to confine paupers in the house of correction “for one month,” but issued his warrant for their confinement until they should be discharged, &c. It was held that this judgment was void, and that the magistrate was liable in trespass, because he had exceeded his jurisdiction by confining the plaintiff for an indefinite time.
    The following rule is deducible from the cases; Where an act has been done by a judicial officer, which he was authorized to do upon a proper state of case, he is not personally liable for any error of judgment, either as to the facts in the case decided, or as to the law applicable to the facts, but where (although he has jurisdiction of the subject matter) he exceeds his jurisdiction, by doing an act which he is not authorized to do, upon any state of case, nor under any circumstances — it is coram non judice and void, and the judge is liable as any other person would be.
    The case of Jarret vs. Uig'bee, 5 Monroe, 546, relied on, was decided under the act oí 1798, (2 Stat. Law, 1411,) which differs materially from the Revised Statutes. Under the act of 1798 magistrates had authority to imprison a suspected runaway, and issue hismitimus to the jailer under certain circumstances; and that in that case no inquiry could be made in a collateral proceeding to ascei’tain whether the proper state of facts existed to authorize the issuing of the mitimus.
    The doctrine that when a justice has once acquired jurisdiction he is not responsible for any error, however palpable, or any outrage however gross, is not admitted; if so, a judge having the power to fine or imprison, for contempt, might substitute whipping, and it would be a “judicial error,” and no responsibility attach.
    The error of the appellee is palpable. He had no authority to issue a warrant for the imprisonment of supposed runaways. All he could do was to issue a precept commanding the apprehender to lodge the slave in jail, or deliver him to the owner.
    The point relied on was raised by the second instruction, which was overruled.
    
      Clement Sp Taylor and Ripley Sp Logan for appellee—
    The appellee denies that he knew that the slaves brought before him- were the slaves of appellant, or that there was any sufficient evidence of that fact before him. He also denies any knowledge that the appellant was a citizen of Jefferson county. JDenies any malicious design to oppress the appellant under color of law. Alleges that the slaves were brought before him by a police officer, as runaways; that upon hearing the case it appeared to him that the slaves were runaways. That he did not know their owners, or that they resided in Jefferson county.
    The 1st section, article 6, Revised Statutes, page 636, gives jurisdiction to justices of the peace to dispose of any runaway slave which may be arrested and brought before them. If there be reasonable cause to suspect that such slave is a runaway, the justice is required to give a certificate of the fact, stating the county in which the slave was arrested; the name, if known, and description of the negro; the name and residence, if known, of the master; the name and residence of the person who apprehended the runaway ; the amount due the apprehender; and by his precept indorsed thereon command him to deliver the slave to the jailer of the county, or if the owner resides in the county of the justice, to deliver him to the owner. That the commitment was by warrant, instead of a bare precept on the back of the certificate, cannot be material. It was a substantial compliance with the statute. The case of Jarret vs. Higbee, 5 Monroe^555, is analogous, and is relied on.
    The appellee, as justice of the peace, having jurisdiction of the case, and having judicially disposed of it, is in no way responsible when he acted in good faith, without any malicious purpose towards the appellant, of which there is no proof.
    The judgment should be affirmed.
    September 27.
   Judge SiiursoN

delivered tbe opinion of the Court.

In this action, brought by the owner of three slaves against the defendant, who is a justice of the peace, the plaintiff alleged that the defendant had, under color of his office, but, in reality, for the purpose of vexation and oppression, committed said slaves as runaways to the jail of Jefferson county, where they were confined for the space of twenty-four hours, when in fact said slaves had not run away, and he, the plaintiff, resided in Jefferson county, which was known to the defendant.

1. When a slave is brought before a justice of the peace as a runaway slave it is the duty of the justice to determine whether or not he be a runaway, and whether the person apprehending the slave shall deliver him to the owner or to the jailer of the county. (Revised Statutes, 636, in connection with the act of 1798, Stat.Law, 1411.)

The defendant denied in his answer that he had, at the time the slaves were brought before him as runaways, any evidence that they belonged to the plaintiff, or any knowledge of the plaintiff’s place of residence. He alleged that said slaves were brought before him as runaways, by a police officer in and for the city of Louisville; and upon hearing the proof in the cause, it appeared to his satisfaction that they were runaways, and therefore he committed them, as it was his dutjr to do, to the jail of Jefferson- county. He alleged that in this matter he acted in his official capacity, was in the performance of his dut}', and was not actuated in what he did by any malicious motive or feeling, or by any desire tofiarrass or oppress the plaintiff.

The jury having rendered a verdict for the defendant the plaintiff has appealed to this court.

By the Revised Statutes, page 636, it is enacted that “every slave arrested as a runaway shall be “ taken before a justice of the peace, and if there be “ reasonable cause to suspect that such slave is a “ runaway, the justice shall give a certificate, of the “ fact, stating therein the county in which the slave “ was arrested, the name, if known, and description of the negro, the name and residence of his mas- “ ter, and the name and residence of the person who- “ apprehended the runaway, and the amount due the “ apprehender, and by his pre.cept endorsed thereon, “ command him to deliver the slave to the jailer of “ his county, or if the owner is resident in the coun- “ ty of the justice to deliver the slave to the owner “ thereof.”

The defendant instead of making out a certificate, and indorsing a precept thereon as required by the statute, issued a mittimus to the jailer, commanding Mm to receive the slaves into his custody and keep them safely until they should be demanded by their owner, or discharged by due course of law.

2. Tho> the warrant issued by the justice, in such case, may not conform literally to the requisitions of the statute, if the omission be not prejudicial or material to the owner of the slave, he cannot complain.

It is contended that in so doing-, he exceeded his authority as a justice of the peace, and has rendered himself liable to the plaintiff in this action. To sustain this position, the foregoing statute is relied upon as requiring the justice before whom a slave is taken, if he have reasonable cause to believe that he is a runaway, to command, by his precept endorsed on the certificate, the apprehender either to deliver the slave to the jailer of his county, or to the owner, if he resides in the county; and that the justice has no power to determine whether the slave shall be committed to jail, or delivered to the owner; but that matter must be left by him to the person who has apprehended the slave.

In this construction of the statute we do not concur. It is the duty of the justice to determine whether or not the slave is a runaway, and also whether the apprehender shall deliver him to the owner, or to the jailer of the county. This, we think, is the true meaning of the statute, and this construction is fortified by a reference to the statute of 1798, (2 Statute Law, page 1411,) which continued in force until the adoption of the Revised Statutes. By that statute it was provided, that if the owner should not be identified to the satisfaction of the justice, he should, by his warrant, commit the runaway to the jail of his county. We cannot perceive any intention on the part of the Legislature to change the law upon this subject, and transfer the decision of this question from the justice of the peace acting in his official capacity, to the person who may apprehend the runaway, and who may be wholly irresponsible.

The warrant issued in this case by the justice was a substantial, although not a formal and literal compliance with the requisitions of the statute. It contained a statement, although imperfect, of the facts which are required by the statute to be embraced in the certificate to be made out by the justice. Its omissions are not prejudicial to the plaintiff, and the statement it contains, that the slaves said they belonged to him, and that he resided in Jefferson county, did not prove that such was the fact, as the statement of the slaves was not competent evidence on the subject, and would not have justified any action by the justice based exclusively thereon. It was not proved that the defendant, at the time the slaves were brought before him as runaways, knew them or their owner, or their place of residence, or' that he$ had any knowledge on the subject, except that which he derived from the information of the slaves themselves. There was no testimony tending to prove that he had any reason to believe that they had not x’un away from their owner; and as they were absent from home without any written permission from their owner — at least none was proved to have been in their possession — and they had been apprehended and brought before him, charged with being runaways, he had an undoubted x-ight to consider and treat them as such.

3. A justice is not bound to regard the statements of a slave apprehended as a runaway as ev idence. Nor ia it admitted that a justice is responsible for an error of judgment incommitting a slave asa tbenTisf no'malieious or improper design.

As the owner had not been identified to his satisfaction, he had a right to order them into the custody of the jailei’, and whether this was done by him in the exact manner prescribed by the statute, by a precept requiring the apprehender to deliver them to the jailer, or by his warrant directed to the jailer himself is not material, as the same effect precisely resulted from the adoption of either mode of accomplishing this object.

And we do not admit that if the justice while acting within the limits of his jurisdiction, had committed amere error of judgment, without any malicious or improper design, that he would have thereby subjected himself to any liability whatever.

Testimony of any information in relation to the slaves that had been given to the persons apprehending them, when the defendant was not present, and of which it did not appear he had any knowledge, was clearly inadmissible against him.

The law of the case as expounded by the court below in its instruction to the jury, is in unison with the principles of this opinion. .

Wherefore, the judgment is affirmed.  