
    James Taylor v. John Alexander, David Peterson, and James Boland.
    When, the officers of justice stand justified in law for their acts, it is incompetent to inquire into the motive which induced them to act.
    In trespass against a constable and one of his posse, irregular process from a court having jurisdiction of the person and the subject is a justification, notwithstanding the preliminary steps to the process are irregular.
    Leave to enter a nonsuit will not be received after verdict.
    Trespass, from Wayne county. The declaration contains three counts. The first two for an assault, battery, and false imprisonment of the plaintiff, and the third for an assault, battery, and false imprisonment of the plaintiff’s wife. The delendants pleaded, 
      severally: 1. Not guilty; and, 2. Gave notice of justification, as to the first two counts, under a state’s warrant issued against the plaintiff on October 27, 1832, by the defendant, Alexander, a justice of the peace, on the complaint, upon oath, of the defendant, Peterson, for feloniously taking a parcel of buckwheat, delivered to the defendant, Boland, for execution; by virtue of which, he arrested and brought the plaintiff before said justice. 3. To third count, a like notice of justification, under a search-warrant against the plaintiff, issued by justice Alexander1, and given to constable Boland for execution; and while he and the defendant, Peterson, as his ^servant, and by his command, were in the [145 execution thereof, because the plaintiff’s wife attempted to obstruct them, and to prevent her from doing them injury, they gently laid hold of her, but did her no unnecessary injury.
    At the trial, the plaintiff having proved his arrest and imprisonment by Boland, that the arrest was advised by him and Peterson, and that Boland seized and held Mrs. Taylor on account of indications on her part to scald him, offered to prove that the defendants knew he was innocent, and procured the arrest to bring him within reach of civil process, which, being objected to, was rejected by the court. He then rested his case, and the counsel for defendants moved for the discharge of Alexander, because there was no-evidence against him. This motion was objected to by the plaintiff, and overruled by the court; but the court permitted the jury to retire upon the case as to Alexander, when they returned a verdict of not guilty.
    In the further progress of the cause as to the other defendants, the following papers were offered in evidence by the defendants:
    1. The affidavit of Peterson, made October 26, 1832, before Alexander, “ that on or about the 16th of this instant, in the county of Wayne and state aforesaid, David Peterson doth on oath declare, that he verily believes that said goods and chattels, or some part thereof, is in the house of James Taylor; or does verily believe ne is guilty of the fact charged.”
    2. The warrant of the justice against Taylor, reciting a complaint of Peterson, on oath, “ that Taylor, on or about the 16th inst., it is believed, did take a certain quantity of buckwheat from the barn of Thomas Scott, the property of Peterson,” which was returned' with the body.
    3. The search-warrant from justice Alexander, reciting that it had been made to appear to him. “ that the following goods and •chattels, that is to say, about twenty-five bushels of buckwheat, more or less, within twenty days last past, by James Taylor or wife, feloniously taken, stolen, and carried away, etc., and that the said D. Peterson doth on oath declare, that he verily believes the said goods and chattels, or some part thereof, according to the belief of the deponent, are concealed in the house of the said James Taylor;” therefore commanding him, with the necessary and proper assistance, to enter into the house of Taylor in the daytime and search for said goods, and if any were found, to bring them 146] and the said Taylor forthwith ^before the justice; which was returned with part of “ the stolen property,” but the body not found. This evidence was objected to by the plaintiff’s counsel, but admitted by the court.
    In submitting the cause to the jury, the court instructed them that these proceedings under the criminal laws, though irregular, were not void ; and being, for the pui’poses of the action, valid, they afforded a justification to the defendants acting under them, proceeding in a reasonable manner, and using no more violence than was necessary to execute them ; and also, that in this form of action, if the .process was legal, the motive of the party in procuring it, or in setting the machinery of the law in motion, need not be regarded. The jury found for the defendant; and a new trial is moved for, because the court erred in rejecting evidence offered by the plaintiff; in admitting that offered by the ^defendant, and in misdirecting the jury as to the law.
    L. Cox, for plaintiff,
    cited Wheat. Selw. 115, 118; 4 Blk. Com. 291; 1 Chit. Pl. 169 ; 3 Stark. Ev. 1450, note z, and 1453; 5 Taunt. 442.
    Dean, contra,
    cited 3 Stark. Ev. 1446,1448, note c; 2 Stark. Ev. sis:
   Judge Wright

delivered the opinion of the court:

The first question to be decided is, whether it is competent for •the plaintiff in trespass to prove, in order to enhance the damages, that a legal prosecution was commenced with a malicious motive ? If the prosecution complained of be malicious, and the forms of law have been used for malignant purposes, the party injured has his remedy by an action on the case for a malicious prosecution, in which the concurrence of a malicious motive with the want of probable cause, will subject the aggressor to damages commensurate with the iujury sustained, and oftentimes to those exemplary or vindictive. In trespass, the rule is different. If the defendant in that action has acted under valid legal proceedings, they will justify him, and protect those acting under him. The true question in such a case is, were the acts complained of legal ? If they were, they are none the less so, because the party instituting the legal proceeding was actuated by motives oí revenge or malignity. The evidence offered by the plaintiff, and ruled out at the trial of this case, was offered upon the *avowed ground that pro- [147 ceedings had been commenced under the criminal laws. The proceedings themselves had not been shown, and could not be considered by the court either as legal, or as illegal and void; and it was therefore properly rejected. It is no answer to this to say, that subsequently these proceedings were given in evidence, because after so given in evidence the proof was not offered.

2. Were the warrants of the justice of the peace a justification to the officer and his posse ? The principle is well established that executive officers, being obliged to execute process, are protected in the rightful discharge of their duty, provided the process issued from a court or magistrate having jurisdiction of the subject matter. And if the magistrate proceed unlawfully in issuing the process, he, and not the executive officer, will be liable for the injury. 13 Mass. 286, 272; 14 Mass. 459. The executive officer is justified, even when the process under which he acts is voidable for irregularity or mistake in issuing it. 4 Mass. 232 ; 2 Stark. Ev. 818; 3 Stark. Ev. 1448, n. e. The cases relied upon by the plaintiff’s counsel are those of attempted justification where there appears an excess of jurisdiction. In such cases, the process being void, it, of course, could afford no protection. As if a justice of the peace were to issue a writ in slander that process would not protect the officer, because the justice has no jurisdiction of the subject. It does not comport with law or correct policy to permit an executive officer, or those he commands as his posse, to examine into the regularity of the proceedings of the court whose process they execute, or to confer upon them authority to proceed or to forbear, as they may judge best. The rule that holds them to know the extent of jurisdiction requires for its justification some legal subtlety,' but rests on far different ground from that urged by the plaintiff. The papers in this case are irregular, but do they not show a proceeding under the laws of the state? "We think they do. The affidavit might not stand a critical examination. The magistrate in drawing it has endeavored to pursue the statute form, and has omitted a sentence. If the affidavit was the authority under which Peterson and Boland justified, we should doubt; and we might also doubt, if the justice sought under that to protect himself. But it must be remembered that the justice was acquitted before this evidence was introduced. We think the other defendants need not look back of the warrants for their 148] justification. The larceny is bunglingly enough ^charged in the warrant, yet it shows that there was a complaint under the laws for the punishment of crimes, for taking the property of another and commanded the arrest, and the officer was legally bound to execute it. The search-warrant describes the offense sufficiently clear. The objection that it sets forth the belief that the offense had been committed by Taylor or Ms wife, while it commands the search of the house of Taylor, the husband, and if the goods were found, to bring forth only his body, does not seem to us of much weight. The goods were found in Ms possession; Ms arrest is complained of; and, in our opinion, the law does not invoke the aid of courts to punish the officers of justice for trifling errors in drawing up legal process. If they are substantially good, they are sufficient. We do not inquix’e what rights these parties have in any other form of action, and only decide that, in this case, the error of the court is not apparent; certainly not such as to require Of us to grant a new trial.

The court is asked, in case the motion for a new trial is overruled, to permit the plaintiff to enter a nonsuit on paying the costs. This we decline to do. It would innovate upon the usual practice to allow a nonsuit after verdict; and we have decided, at this term, in the case of Gazzam v. Cincinnati Insurance Co., ante, 75, that our office here is to decide questions reserved in the county. This motion was not made in the county and reserved; as an original one, it can not be received.

Judgment on the verdict.  