
    * George F. Williams versus Edmund M. Blunt.
    [f a writ de homine replegiando, in the form prescribed by the statute for one “ held without order of law,” be brought to the Court of Common Pleas by one committed by a justice of the peace in punishment, upon the appeal the Court will dismiss the action, for want of jurisdiction in the Court of Common Pleas. The defendant, who was the original complainant before the justice, is not entitled to costs in such case.
    This was a writ de homine replegiando brought originally to the Court of Common Pleas in the form prescribed by the statute, (Feb. 19, 1787,) “ where the plaintiff is held without order of law,” alleging that the said Williams was “ taken and detained in a place called the county prison, in Newhuryport, in said county, by the duress of the said Blunt." Upon non cepit pleaded, there was a trial before Dana, C. J., and a verdict for the defendant, at April term, 1805. After the verdict was received, Livermore, for the plaintiff, alleged the following exceptions to the opinion, direction, and judgment, of the chief jusiice : —
    “ And now the said W. appears, and, in support of the issue in fact, joined upon the record on his part, here offers in evidence to the jury sworn to try the said issue, and moves the Court for leave to show and offer in evidence to said jury, by good and lawful proofs, the following facts, viz.; That, on the 23d day of June, 1803, at Newburyport aforesaid, he, the said B., of his own mere motion, and with an intent unlawfully to take and imprison him, the said W., did exhibit to a certain justice of the peace for said county a certain complaint in writing, here in Court produced, wherein he, among other things, alleged that the said W. was his apprentice, and duly bound to him as such, and had absconded and left his service ; and did then and there procure a warrant from said justice in common form, also here in Court produced, and by virtue of said warrant did cause and procure the said W. to be arrested and brought before the said justice, and thereupon did procure a further warrant from the said justice, commanding the prison-keeper of the common prison in said Newburyport to receive the said W. into his custody and keeping, and him detain for the space of twenty days; by virtue whereof, the said B. caused the said W. to be taken to said prison, and him there to be detained in manner aforesaid, until he caused himself to be replevied and delivered from said imprisonment by force of his writ of replevin aforesaid. And also to offer and show in evidence, as aforesaid, that-he, the said W., was not, at the time of the taking, detaining, and imprisoning, as aforesaid, nor at any other time, the lawful apprentice of him, * the [ * 208 ] said B., nor bound to him as such; so that the taking, detaining, and imprisoning, aforesaid, were altogether without a right and lawful cause. Whereupon it was adjudged by the Court that the evidence offered as aforesaid, and the facts aforesaid offered to be proved, were not legal evidence to be admitted in this cause, and were insufficient in law for him, the said W., to maintain and prove the said issue on his part; and the said evidence, or proofs, were accordingly refused by the Court to be admitted in the trial of said issue by the jury aforesaid. Because the proceedings before the said justice, and the judgment thereon by him rendered, stand in full force; ■ and because the said W. did not appeal therefrom, as by law he might have done.'”
    
    (Note.—The words last above quoted, which are printed in Italics, were added by the judge before whom the trial was had.)
    The cause has since stood continued to this term; and now Liv ermore, for the plaintiff, moved for a new trial, and contended that the evidence ought to have been admitted, whereby it would have appeared that the taking and imprisoning was by Blunt, the defendant, though the actual custody was by the prison-keeper; thal B. being the principal actor who caused the taking and imprisonment, and the detention properly the detention of B., the writ was duly brought against him ; that the verdict was consequently wrong, and ought to have been that the defendant did take in manner and form, &.c., and damages should have been assessed for the plaintiff; that the evidence being objected to by the defendant, and rejected by the Court, the facts, if competent to support the action, are confessed in the same manner as if demurred to. 
    
    
      Jackson, for the defendant.
    The writ which the plaintiff has thought proper to use in this case is confined, by the statute, to the case where one is held without order of law. But the plaintiff was imprisoned by a warrant issued from a court of competent jurisdiction, in pursuance of a sentence. All the agency which the presen defendant had in the business was to inform a proper magistrate that an offence had been committed. The magistrate L * 209 ] convened the party complained of before * him, and. upon what appeared to him sufficient evidence, sentenced him to the punishment prescribed by the statute for the offence.
    The Court cannot, in this action, go into the inquiry whether the magistrate had jurisdiction of the complaint, or whether the plaintiff was legally the apprentice of the defendant. If he was not, and the magistrate acted maliciously, an action of false imprisonment would lie against him. If Blunt, when he entered the complaint, knew that he had no legal claim to the plaintiff’s services, he might be liable to an action of the case for the injury. But he can in no sense be considered as having the custody of the plaintiff at the time when he replevied himself. It is clear that the plaintiff has mistaken his action. The facts which he offered in evidence would not support it, if proved. The verdict-was, then, what it should have been, the direction of the Court right, and a new trial ought not to be granted. If the present plaintiff was entitled to this writ, every debtor and every criminal, imprisoned by legal process, may procure his liberty, at pleasure, in the same mode.
    
      Livermore, in reply.
    The objection made by the defendant, technically speaking, amounts to this — that the plaintiff was irreplevisable. This seems to be on two accounts, viz., that the sentence or judgment of the justice stands in full force, not appealed from, although, as is said, there might have been an appeal; and secondly, that the plaintiff, having been committed by lawful authority and in punishment, is irreplevisable by law. There is, also, a further objection, viz., that the writ should have been brought against the sheriff or jailer, and is improperly brought against the present defendant, who may well plead non cepit, as he has done.
    To the first objection I answer that, if an appeal lay from the sentence of the justice, it must be by virtue of the “Act vesting certain powers in justices of the peace in criminal cases,” passed March 16, 1784; or of the “ Act describing the power of justices of the peace in civil actions,” passed March 11, 1784. The act giving the jurisdiction in this case does not [*210] * give an appeal. The terms on which an appeal is granted in a criminal case are, that the defendant recognize to the commonwealth in a reasonable sum, not exceeding £5, with sufficient surety, &c.; so that, if this is considered as a criminal prosecution, as in its form it was, then the apprentice has only to forfeit this trifling recognizance, and desert his master’s service at his pleasure. In a civil suit, an appeal is allowed upon the appellant's recognizing to the appellee in a reasonable sum, not exceeding £10, with sufficient sureties, &c. Supposing this to have been a '■tivil suit, then, and giving to the statute the construction that an appeal lies from the justice’sjudgment, it follows that, if the defendant in that process had recognized with sureties in the sum of £10, he would have been dismissed, and the master would have only the security last mentioned for his apprentice, who might abscond, and the master lose his services, though worth ten times the money. It could not, then, have been the intention of the legislature to give an appeal in the case; had it been, they would certainly have qualified it so as to prevent the absurd consequences which I have stated.
    But this act respecting apprentices being subsequent to the act regulating the writ de homine replegiando, the words in the form prescribed in the act (which must in this case be considered as the command of the law) “ provided he is held as his ward, infant, or one to whose service he is entitled, &c., and he shall make you secure, &c., then, and not otherwise, you are to deliver him,” show the intention of the legislature that one in the plaintiff’s situation might relieve himself by this writ, provided he should be illegally imprisoned.
    All acts must be construed favorably to life and liberty. The construction I contend for would be favorable to liberty, but the contrary would be a rigid, narrow construction, and destructive to liberty and security. If it should be considered that no appeal lay from the sentence of the justice, and that the second form of the writ contained in the act cannot be sustained, then it would follow, that the sentence is absolute, and this is the amount of the second objection. If this objection is well founded, and this case falls within the intent and meaning *of the words [ * 211 in the latter part of the first form of the writ prescribed, viz., “or under sentence after conviction for fine or costs, or in punishment,” then it must inevitably follow that his imprisonment for twenty days is irrevocable by the whole power of the commonwealth, except the merciful master who pretends a right to his services. We go now upon the supposition' of the master’s having no right, or of his illegally holding him in prison, and, let the necessity of his deliverance be ever so great, still nothing but the master’s permission could release him. For, if he was brought before this Court by habeas corpus, your honors could go no farther in your inquiries, than to find that he was imprisoned by regular process from competent authority, which if rightful, he was not bailable; and no inquiry could be gone into as to the validity of the defendant’s claim to the services of the plaintiff, as his apprentice.
    Although the commitment is but for twenty days, yet, by repeated processes, the imprisonment might be made perpetual by the authority of a single magistrate.
    It is said an action for false imprisonment would lie; the answer to this is, that it would be a very inadequate remedy for a total loss of liberty, and particularly if to be brought against one wholly unable to respond the damages.
    
      Livermore
    
    then read from 19 Viner’s Abridgment, title Construction of Statutes, E. 67, 81, 82, 86, 87, 95, in notis, 132, 141, 154, 156; and proceeded as follows: I ask now, whether it can be consistent with the principles of natural justice, as held in this country, where we profess to live under a government of laws and not of men, that a justice of peace should possess this exorbitant power. If “judges have power over statute laws to mould them to the truest and best use, according to natural reason and best con venience, and words of a statute ought not to be interpreted to destroy natural justice,”  I ask whether the construction I have contended for is not according to reason, and the truest and best use and general convenience; whether it is not the [*212] most natural and * genuine interpretation of the law; whether the last act concerning apprentices does so far contradict the other, that this construction cannot be given, and so both statutes stand —viz., the justice retain the power of commitment, and the accused have the right to replevy himself, on giving sufficient security to be forthcoming, and to pay all damages and costs, should a proper forum ultimately decide against him; and whether the general words ought not to be specially interpreted to prevent an apparent injury, a condemnation irrevocable, against right, of a person to suffer imprisonment.
    As to the objection that this writ ought to have been brought against the jailer, I answer, he could have pleaded, in justification, that the prisoner was committed by virtue of a mittimus from a magistrate, having competent jurisdiction by law of the subject-matter, and that the process was regular. This would have been a sufficient justification for him, and the writ would indeed have been nugatory. But Blunt, being the principal who caused the arrest and detention, is by law answerable for all consequences.
    In 12 Mod. 36, Dela Bastile vs. Reginald & Ux., and in More vs. Watts, ibid. 424, Lord Holt says expressly, “ There is no diversity between a homine replegiando, and a common replevin for cattle.” It is dear that replevin lies as well against the person who commands the taking of the cattle or goods, as against the person who takes Vin. Abr. tit. Replevin, D. 579.
    
      
      
        Buller's N. P. 316.
    
    
      
      
        Vin. Abr. ubi supra, 154, 156.
    
   Parker, J.

This is a writ de homine replegiando brought originally in the Court of Common Pleas, was tried before the late chief justice of this Court on a plea of non cepit, and now comes before us on a motion by the plaintiff for a new trial, on an objec tian to the opinion of the judge in refusing certain evidence which was offered by the plaintiff in support of his action. The evidence in substance was, that the plaintiff was imprisoned by sentence of a justice of the peace, under the provisions of the statute respecting apprentices, upon the complaint of the defendant, who claimed the plaintiff as his apprentice. The plaintiff also offered to prove that he was not legally an apprentice * within the [ *218 ] statute. Upon this evidence it was contended, for the plaintiff, that the defendant was liable to this process, and that it ought to have been considered by the jury.

If it should appear that this action was not well brought, and that, if the verdict had been for the plaintiff, no judgment could have been rendered upon it, it is not material to examine the opinion of the judge which is objected to; because a new trial, if granted, could be of no benefit to the plaintiff.

The statute of the commonwealth establishing the right to, and the form of, this writ, directs that, where a person is held without order of law, he shall have a writ returnable to the Court of Common Pleas in the form there prescribed ; but where he stands committed by lawful authority for any crime not capital, another form of the writ is prescribed, and it is to be made returnable to this Court. In this case, the plaintiff was imprisoned in the common jail by lawful authority from a magistrate. If the plaintiff had a right, then, to either of the writs prescribed by the statute, it must have been the latter one, returnable to this Court. The statute concerning apprentices had given cognizance of this complaint to a justice of the peace. If he made an indiscreet or illegal use of his authority, there might have been a remedy for the injured party; but acting, as he did, under the authority vested in him by the statute, he had lawful authority to make the sentence, and of course the Court of Common Pleas had no jurisdiction ; the appellate jurisdiction of this Court fails of consequence ; and therefore, as no benefit could be derived from a new trial to the party moving it, without considering whether the evidence proposed was proper or not, I am of opinion that the appeal ought to be dismissed.

Sewall, J.

On the question immediately before the Court, 1 incline to the opinion that the evidence offered to prove the issue was improperly rejected. Courts of limited jurisdiction must substantiate every fact necessary to give them jurisdiction. If, therefore, the defendant was able to prove that lie was not the plaintiff’s apprentice, the justice had no cognizance of the complaint, and the commitment was unauthorized, On the ground taken by my brother Parker, that the defendant was committed [*214] *by lawful authority from a magistrate having prima facie jurisdiction of the cause, I am satisfied that the writ, being made returnable to the Court of Common Pleas, was brought before an incompetent tribunal, and must therefore be dismissed.

Jackson

moved that the defendant might have his costs, to which he conceived him entitled under the statute of October 30, 1784, which enacts “ that the party prevailing shall be entitled to his legal costs against the other.” This can only be opposed on the ground that there have never been any parties regularly before the Court; or, in other words, that the Court have no jurisdiction of the cause.

There has been no plea in abatement; it therefore cannot appear that the Court has no jurisdiction unless it appears on the face of the writ itself. There was a plea in chief, on which * evidence has been offered, which evidence now comes [ *215 ] before the Court by a bill of exceptions. But the Court cannot look into that evidence to ascertain whether they have jurisdiction ; for this latter question is, in its nature, anterior to the offering of any evidence whatever ; and the only ground on which the action can be dismissed is, that the Court have no authority to receive or examine the evidence. The Court are presumed not yet to know what evidence the plaintiff means to produce, and are to consider the subject as upon a motion before trial, when the whole question would be, whether the plaintiff shall be permitted to produce any evidence at all in support of the action ; whether the Court can judicially hear the cause and inquire into the facts; or whether, on the other hand, the record itself (that is, the writ and plea) shows that they have no power to do this — no jurisdiction of the cause.

Sedgwick, J.

As this case strikes my mind, it lies within very narrow limits. In certain cases, cognizance of this action is given to the Court of Common Pleas. But where any person stands committed by lawful authority for any crime not capital, except in certain cases specified in the statute, not material to the decision of the question before us, this Court is to have original jurisdiction. The question is, Was the plaintiff so committed? It appears from his own showing that he offered to prove, on the trial, that he was committed by the sentence of a justice of the peace for deserting his master’s service. The law certainly considers this as a crime, by inflicting the punishment of imprisonment on the person convicted of it. If he was so committed, and the justice had cognizance of the matter, whether he exercised his jurisdiction in a lawful or an unlawful manner, the statute prescribes a writ returnable to this Court. This writ being not so made, the appeal must be dismissed.

Appeal dismissed.

As soon as the Court had thus pronounced their opinion, Jackson suggested a wish to be heard on a motion for costs for the defendant, and prayed that the judgment might not be immediately entered, by which he would be precluded. The Court assented ; and, at another day,

We admit that, if it appears conclusively to the Court, on inspection of the writ, that they could not, in any event, upon any evidence that could have' been produced, have jurisdiction of the action, they ought to dismiss it, (without any plea or appearance on the part of the defendant,) on the motion of any amicus curia. And in such case, it is true they cannot award costs.

But in this case we contend that the Court had jurisdiction of the cause, and the only question is, whether the evidence will support the action. To decide this point, let us suppose that the writ was noxv first read to„ the Court, that there had been no plea, and of course no evidence produced ; and that, under these circumstances, the defendant had moved the Court to dismiss the writ, because it appeared to the Court conclusively that they had no jurisdiction. The writ perfectly corresponds to the form prescribed by the statute, for an imprisonment, xvithout lawful authority, by the duress of a private person. . That form has a blank for the place where the party is detained, as, in replevin for goods, the place where the goods now are is mentioned ; in both cases, for the purpose of directing the sheriff where he may find the object of the writ. In this writ the plaintiff is said to be detained in “ a place called the county * prison, in Newhuryport,” &c., by the duress [ *216 J of Edmund M. Blunt,” &c. Could the defendant urge that it now appeared judicially to the Court, and conclusively, that the plaintiff was imprisoned by lawful authority, because he avers his imprisonment to be in the county prison —and that therefore the Court had no jurisdiction by this writ: Might not the plaintiff reply, that his writ was in the form prescribed for an unlawful imprisonment; that he had averred it to be by the duress of the defendant, and was prepared with evidence to prove that fact; that he mentioned the county prison for the direction of the sheriff, that he might know where to find him; that the Court ought not to dismiss his writ without giving him an opportunity to prove the allegation, that it was by the duress of an unauthorized individual. Surely, in such a case, the Court would put the defendant to plead. The plaintiff might prove that the defendant, claiming to be his bail, liad taken him and delivered him to the jailer for safe keeping until the court when he was to appear, and that, in fact, the defendant never was his bail: or he might prove that the defendant had taken him without any color of right, and persuaded the jailer to keep him in the county prison.

Livermore.

On this question, I think it enough to observe that, if the Court were right in dismissing the action for want of jurisdiction, (and I am bound so to think,) then they cannot award costs to the defendant, which would, in fact, be exercising a jurisdiction.

Parker, J.

If the Court acted with understanding in dismissing the action, it seems to follow of course that no costs can be awarded. The objection now made is, that the action ought not to have been dismissed, but some other judgment rendered, because it is said that enough does not appear on the record to justify the judgment; but enough appears there to satisfy me. It appears that the plaintiff offered certain evidence in support of his action, which, if trac, showed that the Court had no appellate jurisdiction in the case; the defendant objected to this evidence as improper and insufficient; in other words, he demurred to it, which is admitting the facts to be as stated. It appears, then, from the record itself, that | * 217 ] the Court of Common * Pleas had not jurisdiction. If the defendant had pleaded this in abatement, he would not have recovered costs, which never follow a determination against the jurisdiction of the Court.

Sewall, J.

It appears to me that, the plaintiff alleging his imprisonment to be in the “ county prison in Newburyport,” it became apparent on the writ that the action did not lie to the Common Pleas, and I conceive that court would have dismissed the suit on motion, upon this single ground. Perhaps the officer who executed this process would be liable to punishment; but as to the question of costs, when an action is dismissed as out of the Court’s jurisdiction, there cannot be a judgment for costs, which is in some sort assuming the jurisdiction.

Sedgwick, J.,

(after going through the history of the action down to the bill of exceptions,) observed that, by this bill, the facto in the cause were before the Court. From these it was apparent that the plaintifi had mistaken his action. It followed irresistibly that it must be dismissed ; and no costs can be given in an action of which the Court has not jurisdiction.

The Court then directed the judgment to be entered in the following form: —

“ All which, the matters aforesaid, being seen and fully under stood by the Court here, and mature consideration thereof had, — because it appears to the Court here that the Court of Common Pleas had not original jurisdiction of this case, it is thereupon considered that the same be dismissed.” 
      
      
         1 Phil. Ev. 380, 7th Lond. ed. — Cook vs. Herbert, reported in note, Willes, R. 86.— Allen vs. Dundas, 4 D. & E. 130. — Bul. N. P. 247. — Allen vs. Dundas, 4 D. & E. 130. — Bul. N P 247
      
     
      
      
         Dean vs. Dean, 2 Pick. 25. — Clarke vs. Rockwell & Al. 15 Mass. Rep. 221. Sed vide Thomas vs. Whitey 12 Mass. Rep. 370.— Guild vs. Richardson, Admr. 6 Pick. 364.
     