
    *Price, Sheriff, v. Holland, Assignee. Price v. Same.
    January Term, 1855,
    Richmond.
    1. Sheriffs — Execution of Erroneous Process — Liability. —A sheriff or other ministerial officer is protected from personal responsibility in the execution of process emanating- from a court or magistrate having jurisdiction of the subject, although the judgment of the court or magistrate, upon which the process issued, is erroneous, and the error is apparent on the face of the proceedings.
    2. Same — Same—Same—Case at Bar. — A sheriff, who has released a debtor, taken in custody upon a ca. sa., by authority of a warrant of discharge from a magistrate under the act for the relief of insolvent debtors, is not liable to the judgment creditor in an action of debt for an escape, although it is shown that the notice by the debtor to the creditor, of his intention to apply for the benefit of the act, was insufficient.
    In April, 1845, Asa Holland, assignee of John Sample, recovered a judgment against Robert Hairston, for the sum of eleven hundred and fifty dollars, and costs, to be discharged by the payment of five hundred and seventy-five dollars, with interest thereon from the 1st day of January, 1827, till paid, and the costs of the suit. A writ of ca. sa. was issued upon this judgment, under which Hairston was taken by the sheriff of Franklin county, and was released by the jailor by authority of a warrant of discharge from a justice of the peace, under the act for the relief of insolvent debtors.
    Whereupon, Holland instituted an action of debt in the Circuit Superior Court of Law and Chancery for the County of Franklin against ' Showers Price, the sheriff of Franklin county, for having willfully and negligently, against his will, permitted the escape of the said Robert Hairston.
    The defendant pleaded nil debet, and also offered a special plea, setting forth that the said Robert Hairston *was in the custody of his deputy by virtue of the said writ of ca. sa. in the declaration mentioned, and that “on the 5th day of June, in the year 1845, at the parish and county aforesaid, he the said Robert Hair-ston applied to a certain Richard M. Tallia-ferro, who was then and there a justice of the peace for the said county of Franklin, to be discharged from custody and imprisonment as an insolvent debtor, pursuant to the act of Assembly in Virginia in such cases made and provided; and such proceedings were thereupon had in the said matter, to wit: on the 5th June, 1845, that by a certain warrant of discharge then and there duly made by -the said Richard M. Talliaferro, then and there being a justice of the peace for the county aforesaid, pursuant to the aforesaid act of Assembly for the relief of insolvent debtors, directed to the jailor of Franklin county aforesaid, it was ordered and adjudged, that the said Robert Hairston should be discharged from the said custody and imprisonment a,s to the detainer of the said plaintiff, and this he is ready to verify.” Which plea, on the motion of the plaintiff, was rejected by the court.
    The defendant thereupon offered another special plea, the same in substance as the foregoing, with the addition, “that the said Robert Hairston had previously given reasonable notice to the plaintiff of his intention to make such application, and had furnished the plaintiff with a copy of the schedule he intended to offer,” to which the plaintiff replied, and issue was joined thereupon, as well as upon the plea of nil debet, before pleaded.
    The plaintiff offered in evidence the record of the judgment in the declaration mentioned, the writ of ca. sa. and the return thereon, the writ of the justice to the jailor of the county directing the judgment debtor, Hairston, to be brought before him, the writ of the justice to the jailor directing the discharge of the insolvent debtor, and also several witnesses to prove the notice to- the plaintiff' of the intention of Hairston to apply for his'discharge, “at the tavern house of Thomas S. *Greer, at Rocky Mount, in Franklin county,” and that the said notice was the notice upon which the judgment of the justice rendered at the court-house of the county was founded, and that the said Hairston had been seen going at large.
    The defendant, to support the issue on his part, offered in evidence, a commission appointing the said Richard M. Talliaferro, a justice of the peace, the record of his qualification, and a witness to prove that he had continued to act as such ; the warrant of the justice directing the jailor to bring the said Robert Hairston before him at the court-house of Franklin county, on the 5th June, 1845; and the warrant directed to the jailor for his discharge, which was as follows :
    “To the Jailor of Franklin county.
    “Whereas, in obedience to a warrant issued for that purpose, you brought Robert Hairston before me, a justice of the peace for the said county, at the court-house thereof, on this day, with a list of the executions wherewith he stood charged in your jail, and by the said list it appeared that the only execution with which the said Hair-ston stood charged in the said jail, was a capias ad satisfaciendum from the Circuit Superior Court of Haw and Chancery for Bedford county, in favor of Asa Holland, assignee of John Sample, against the said Robert Hairston, for $1,150, and $19 86 costs, to be discharged by the payment of $575, with legal interest thereon from the 1st day of January, 1827, till paid, and the costs; and whereas, it was shown .to me that the said Robert Hairston gave to the said Asa Holland reasonable notice of his intention to take the oath of an insolvent debtor, and of the time and place thereof, and served with the said notice, a copy of the schedule which he meant to offer, and the said Robt. Hairston, upon coming before me at the said time and place, has subscribed and delivered in a schedule of his estate, and taken the oath prescribed by the 31st section of an act, entitled ‘an act to reduce into one act the several *acts concerning executions, and the relief of insolvent debtors,’ and done all that the law requires to entitle him to be discharged. These are therefore to command you, in the name of the commonwealth, forthwith to discharge the said Robert Hairston, if he be detained in your custody for no other cause than the execution aforesaid. And for so doing this shall be your warrant. Given under my hand and seal this, the 5th day of June, 1845.
    “R. M. Talliaferro, J. P.”
    And the defendant further proved by a witness, that the notice above mentioned, (in plaintiff’s evidence,) was served on Holland, on the morning of the 5th of June, and that he refused to attend.
    The plaintiff thereupon demurred to the defendant’s evidence, and the defendant was required to join in the demurrer.
    The jury found a special verdict subject to the opinion of the court upon the demurrer to evidence, and the court, sustaining the demurrer, gave judgment thereupon for the plaintiff, from which the defendant applied to this court for an appeal, which was allowed.
    Before the supersedeas was executed, execution issued upon the judgment of the Circuit Court, and was levied upon two slaves belonging to the defendant, for which he gave a .delivery bond with Marshall P. Price, as security. This bond was forfeited, and there was a judgment and execution thereon, to which there -was a supersedeas from this court on the petition of Marshall P, Price. The first appeal was afterwards revived in the name of Warfield Price, executor of Showers Price, deceased.
    Grattan, for appellant:
    The two cases depend upon the decision of the same question. The sole question is, whether the sheriff was bound to show, that notice had been given to the creditor of the intention of his debtor, who had been taken *in , execution, to take the insolvent. debtor’s oath. The warrant of discharge of the justice recites, that reasonable notice had been given to the creditor, and that recital should have, been conclusive of that fact. Hawkins v. For-syth, 11 Heigh, 294; Carper v. McDowell, 5 Grat. 212.
    The sheriff cannot be held responsible, for discharging a debtor under a warrant of discharge, if the notice to the creditor upon which the warrant was founded is proved to have been insufficient.- The case of the Marshals in 10 Coke, 76. It was there held; that the sheriff is excused for executing process, which issued from proper authority, although it was contrary to law. In Webb v. Batchelder, 1 Vent. 123, it was held, that the sheriff was not responsible for levying a distress against a clergyman, although the distress was illegal. In Hill v. Bateman, Strange R. 710, it was held, that the officer was not personally responsible for executing process, if it issued from a magistrate having jurisdiction of the subject. In Savacool v. Broughton, S Wend. 170, it was held, that a constable was not responsible in an action for trespass, for executing process issued by a magistrate, in a case, where the magistrate had given judgment without any process to bring the defendant before him. See, also, to the same effect, Beach v. Furman, 9 John. 229; State v. McDonald, 3 Devereux, 468; Yeager v. Carpenter, 8 Leigh, 4S4.
    The justice in this case had general jurisdiction over the subject. 1 R. C. 1819, p. 536, l 31, 33; Sess. Acts 1833-4, p. 37.
    There is no limit to the authority here, and it is provided in terms, that the warrant of the magistrate shall protect the sheriff. The authority is the same as that given to the cour-t itself over the same matter. See Judge Tucker’s opinion in Hawkins v. Forsyth, 11 Heigh, 294.
    The levy of an execution on a judgment obtained by fraud is no trespass in the sheriff, and the title of a purchaser under such an execution is good. An officer *is always protected in executing process issued by competent authority. The ministerial officer has no right to en-quire into the regularity of the proceedings .prior to the issue of process. Little v. Hasey, 12 Mass. 319; Simms & Wise v. Slacum, 3 Cranch, 300; Amidon v. Smith, 1 Wheat. 447; Bush v. Pettybone, 5 Barb. Sup. Ct. R. 273; Bennett v. Burch, 1 Denio, 141; Bennett v. Graham, 1 Minot. Alab. R. 269; Sewell on Sheriffs, 46 L. Library, 445; Saffery v. Jones, 2 B. & Adol. 598.
    Bouldin, for the appellee:
    If the effect of the demurrer to evidence be as the counsel for the appellant contends, to waive all other testimony than that offered by the defendant, yet there is sufficient in that to establish the position of the appellee. The notice proved by the witness for the appellant is the same as that proved by the appellee; and it was an insufficient notice. The evidence of the defendant also established that the sheriff had knowledge of the insufficient notice.
    It has been argued that the warrant of the magistrate is to be taken as conclusive of the question, whether reasonable notice was given to the creditor. Now, these warrants of magistrates are merely matters in pais. In the case of Hawkins v. Forsyth, 11 Leigh, and the other cases cited upon this point, the fact sought to be disproved was the very fact certified to by the officer, and so they are distinguished from this case. In Hutchison v. Rust, 2 Grat., those cases were reviewed and some doubt is expressed as to the extent to which the doctrine of those cases had been carried. The warrant in this case is not conclusive, because there is no certificate of the time and place of the application. It is merely certified that reasonable notice of the time and place had been given. It is submitted that this case should be decided on its merits.
    The general doctrine, that the order of a court, acting within its jurisdiction, although erroneous, is a ^complete protection to the officer executing it, is not denied. But it has no application here. The debtor, in this case, was in the custody of the sheriff, and could only be released, by paying the debt, or by obtaining a regular discharge, and it was the duty of the sheriff to see that his discharge was regular. Hamlett v. Carr, 3 Grat. 82.
    The authority of a magistrate in such a case is a special authority. Such special authority must be strictly pursued, and must appear on the face of the proceedings to have been regularly exercised. Inhabitants of Chittington v. The Inhabitants of Penshurst, 5 Mod. 321; Rex v. The Inhabitants of Wootten Rivers, 5 Mod. 149; Wood v. Commonwealth, 4 Ran. 329; Brown v. Compton, 8 Term. Rep.
    Before the justice could act in this case, it should appear that due notice was in point of fact given, and it should appear in the warrant how and when the notice was given. These facts do not appear on the warrant here, and there was, therefore, a defect of jurisdiction in the magistrate, and the sheriff is liable.
    Grattan, in reply:
    The case of Hutchison v. Rust, referred to as having diminished the authority of Carper v. McDonald, was a suit in chancery, and was decided on the whole case. The question was, whether the deed had been in point of fact executed, and the question whether the certificate of a justice was conclusive as to the acknowledgment of a deed which had been executed, did not arise in the case. The principle decided in Carper v. McDonald has never been questioned.
    The warrant does in terms certify, that the notice of the application for a discharge was properly given. It was said, that a warrant is matter in pais. This is new .doctrine, but whether it is true or not, matters in pais, as well as matters of record, operate an estoppel. Cecil v. Early, 10 Grat. 198; Cox v. Thomas, 9 Grat. 312, 323; Cordle v. Burch, 10 Grat. 480.
    *This was not a case of such special and limited jurisdiction as to require particular strictness in its exercise and that the steps necessary to its exercise should appear on the face of the proceedings, but was precisely such jurisdiction as was exercised in the cases first cited, where the ministerial officer was protected in the execution of the order of the magistrates.
   THOMPSON, J.,

delivered the opinion of the court.

This is an action of debt brought upon his common law liability against a sheriff for voluntarily and negligently suffering a debtor, in his custody under a writ of ca. sa., to escape. The defendant first pleaded nil debet, upon which issue was joined. He then tendered a special plea in bar, alleging, in substance, that the debtor had taken the oath of an insolvent debtor before a justice of the peace, and had been released and permitted to go at large in obedience to the justice’s warrant of discharge, granted in pursuance of the act of assembly in such case made and provided, this plea was rejected, and the defendant excepted. He then tendered another special plea in bar, which was received, to which the plaintiff replied generally, and issue thereon was joined. The only difference between the two pleas being that the plea rejected contained no averment of reasonable notice to the creditor of the debtor’s intention "to apply for his discharge, whilst the plea which was received contained that averment, (no special.plea was necessary as by the express provision of the insolvent debt- or’s act, the defence set up by it could be availed of, and evidence to support it given under the general issue of nil debet). Upon the issues joined upon the plea of nil debet and the special plea, the parties went to trial, in the progress of which several bills of exceptions were taken to the opinions of the court, both for giving and refusing to give instructions prayed.

After the evidence on both sides was closed, the plaintiff demurred to the defendant’s evidence. The defendant objected to joining in the demurrer, but his Objection was over-ruled, and the demurrer joined. The jury found a conditional or special verdict, subject to the opinion of the court upon the demurrer to evidence, and the court sustaining the plaintiff’s demurrer, gave judgment for him upon the verdict of the jury, and the question arising upon that demurrer is, whether the defendant’s evidence sustained the defence relied on, to wit: the lawful discharge of the debtor under the act for the relief of insolvent debtors. It is unnecessary to notice the points saved by the bills of exceptions taken at the trial, because the demurrer to evidence raises every question involved in the merits of the cause, which it is material to consider and decide.

That the defence relied on is a valid one, if established, is conceded by the plaintiff in replying to and making up the issue joined on the special plea. If we look only to what appears on the face of the proceedings of the magistrate, which resulted in the debtor’s release from custody as recited in the warrant of discharge, a strict compliance with the provisions of the insolvent debtor’s act is shown. By the law as it stood in the Code of 1819, 1 vol. I 31, 33, p. 536-7, two justices were required to act; but under a subsequent law, pne justice is sufficient. Session Acts 1833-4, p. 77. The proceeding in this case was had before a single justice under this act. It is proved by the evidence on both sides, that the debtor was in custody under a ca. sa. That he applied to a justice to be discharged under the insolvent debtor’s act; that the justice so applied to, and who officiated, was such legally appointed, commissioned, and qualified; that he issued his warrant to bring the debtor before him, and after receiving the schedule, and administering the oath of insolvency, granted his warrant of discharge, in obedience to which the officer released the prisoner. The recitals of this warrant show a compliance in all things with the requirements of the law, so that if we are confined to what appears on the face of the proceedings, the question is not debatable; a complete justification *and defence is made out beyond all doubt. But the attempt is made in this case to avoid this complete defence or justification apparent upon and deducible from the face of the proceedings, under the act for the relief of insolvent debtors, by averment and proof aliunde of irregularity in the proceedings or non-compliance with the law, consisting of a failure or omission to give sufficient and reasonable legal notice to the creditor of the intention of the debtor to apply for the benefit of the act. To say nothing of the doubt whether upon the plaintiff’s demurrer to the defendant’s evidence, which is a waiver of all his own evidence in conflict with the evidence demurred to, he has not lost the benefit of that defence, if it were a good one, as it is by no means clear that the defence is made out by the defendant’s evidence; I am well satisfied, both upon reason and authority, that in no case where a sheriff or other ministerial officer has acted in obedience to the mandate of a court of competent authority, having a general jurisdiction over the subject, is it competent to inquire into and impeach the regularity of the proceedings under which the officer acted by evidence aliunde, those proceedings appearing to be regular and legal on their face; nay, more, if error or irregularity appeared on the face of the proceedings, I am as well satisfied, to borrow the language of Judge Carr in Yeager v. Carpenter, 8 Leigh, 455, “that the sheriff or other officer executing the process or carrying into effect the orders of a court, is protected from all consequences however irregular or erroneous the proceedings; provided only that the court had jurisdiction of the matter.” This opinion of Judge Carr commends itself to our adoption by its obvious reason, common sense, and justice, and is sanctioned by an unbroken series of authorities, ancient and modern, English and American, among which have been cited, by the appellant’s counsel, some for their direct bearing on this case, and others for the apt analogies they furnish, the case of The Marshalsea, 10 Coke, 76, 77; Webb v. Batchelder, *1 Ven. 273; Hill v. Bateman, Strange, 710; Haskins v. Forsyth, 11 Leigh, 294; Carper v. McDowell, 5 Grat. 212; Yeager v. Carpenter, 8 Leigh, 455, (before referred to;) Allen v. Crofoot, 5 Wend. 507; 9 John. 229; State v. McDonald, 3 Dev. 468; Simms v. Slacum, 3 Cranch, 300; Amidon v. Smith, 1 Wheat. 447; Barbour’s Sup. Ct. Rep. 273; Bennet v. Burch, 1 Denio, 141; Bennet v. Graham, 1 Minot’s Ala. Rep., and Sewell on the Office of Sheriff in the Law Dibrary, p. 445; and there is nothing in the cases cited, and relied on by the counsel of the appel-lees, of Hutchison v. Rust, 2 Grat. ; Hamlett v. Commonwealth, 3 Grat. ; and Brown v. Compton, 8 Term Rep. at all in conflict with those authorities, or the opinion of Judge Carr in the case of Yeager v. Carpenter.

The power and legal authority of two justices to discharge a prisoner confined for debt or damages, or of one justice since the act of 1833-4, is as plenary and unqualified as is the power and authority of the County or the Superior Court; and for that purpose the two justices, or the single justice, constituted as much a court of insolvency, or insolvent debtor's court, invested with a general jurisdiction over the subject, as the County or Superior Court, and to hold that it was either the right or the duty of the sheriff to obey or not a warrant of discharge from either tribunal accordingly, as he might determine that the proceedings were regular or irregular, legal or erroneous, is a proposition so monstrous and absurd, that its annunciation carries with it its own condemnation. Then, in this case, whilst I am of opinion, that substantially legal and sufficient notice was in fact given, and that the debtor took the oath, and was discharged substantially according to law, had it been otherwise, and had the irregularity appeared on the face of the proceedings, the warrant of discharge, the sheriff had no right to re-judge the justice of his legal superior, the justice, and to refuse obedience to the warrant of discharge for any irregularity or error appearing in the proceedings or the warrant of ^discharge. Had he done so, he would have exposed himself to an action for false imprisonment. To make a sheriff or other ministerial officer responsible for the illegality, irregularity, or errors in the judgments, proceedings, or process under which he is required to act, rendered by, had before, or emanating from a court or tribunal of general jurisdiction and competent authority over the subject, without at the same time investing him with an appellate power, or power of re-visal, and a discretion and election to yield or refuse obedience to the process or mandate, according to his own conclusions of their legality or illegality, would be to expose a ministerial officer to jeopardy and peril too cruel and intolerable to be admitted as a principle in any rational system of jurisprudence. Rar better is the rule, as the law and the sages of the law have wisely established it, to require of the executive or ministerial officer implicit obedience to the mandates and orders of the courts, or other competent tribunals, and to make their mandates his justification and protection, and submit to the evils or inconvenience consequent upon occasional errors of his legal superiors, where they are even irreversible, or not subject to review and corrections, than to invest the ministerial officer with a discretion or election to yield or refuse obedience, which certainly ought not to be withheld, if the mandate of the court did not shield him from all responsibility for his obedience.

I am, therefore, for reversing the original judgment, and the defendant’s judgment upon the delivery bond, with costs of appeal, including only one attorney’s fee, or which is the same thing, excluding an attorney’s fee in the case of the delivery bond, and, in the original case, for entering judgment upon the demurrer to evidence for the defendant with costs, and, on the motion upon the delivery bond for over-ruling the motion with costs, and quashing the delivery bond and fi. fa. upon which it was taken; and in this opinion and judgment, I am authorized to say, the whole court concurs. 
      See. opinion of Judge Caer in Yeager v. Carpenter, 8 Leigh 455.
      The principal case is cited in foot-note to Carper v. M’Dowell, 5 Gratt. 212.
     