
    Jones against Hughes and another.
    
      Wednesday, September 15.
    Where a magistrate has a general jurisdiction over the subject matter, and intends to act as a magistrate but mistakes the law, he is entitled to notice previously to the commencement of a suit against him for an illegal act.
    Therefore, where a magistrate committed a person for travelling on Sunday, though the commitment was unauthorised by law, he was held entitled to previous notice.
    If a person acting as a constable is sued jointly with the magistrate, he must be acquitted, if helms pursued his warrant.
    The Court cannot, after reserving a point and verdict for the plaintiff, order a nonsuit.
    In Error.
    BY the writ of error bringing up the proceedings in the Court of Common Pleas of Washington county, it appeared that this was an action of trespass and false imprisonment brought by Isaac Jones against William Hughes, a justice of the peace of that county, and George. Miller. Hughes issued a warrant against Jones, and procured Miller to serve it for an alleged breach of the sabbath, committed by Jones, the circumstances of which appeared in evidence as follows : The plaintiff, Jones, was travelling on horseback on Sunday, r , • , , Í . c „ , . TTr , . . lrom the neighbourhood or Canonsburgm Washington county to the town of Wheeling in Virginia, where he resided. Between Washington and Wheeling he was observed by the defendant, Hughes, and others who were on their way to meeting. Hughes ordered him to be stopped and conveyed under custody to a house at a short distance, where he wrote a commitment, and delivered it to the defendant Miller, who was not then a constable. The plaintiff was conveyed to the rail in Washington, agreeably to the command of the warrant J 7 and commitment, though not actually imprisoned therein, advice being procured from counsel which induced his liberation. The plaintiff's name was not inserted in the warrant; ^e having refused to disclose his name or business,
    On the part of the defendants it was contended at the trial, that the action could not be sustained, as no notice had been given to the magistrate under the act of 21st March, 1772. The Court, entertaining doubt on that point, reserved it, at the request of the counsel, for further consideration, and charged the jury, that the arrest was unauthorised and illegal. The jury gave a verdict for the plaintiff for 100 dollars damages.
    At a subsequent day the Court below, after argument, decided, that notice was indispensable, and ordered a nonsuit to be entered.
    Wilkins, for the plaintiff in error,
    now contended, that notice was not necessary under the circumstances of this case, as the magistrate had no jurisdiction, but had acted under an assumed authority, entirely beyond the pale of the law, and therefore must be considered as a wanton transgressor, and on the footing of other individuals. The act of 21st March, 1772, Purd. Dig. 351, extends to the magistrate the privilege of a previous notice only, for acts done “ in the execution of his office.” But there is no law that forbids travelling on Sunday; the commitment was in itself a nullity, and no officer was bound to obey it. Even if there was an offence committed, no warrant could legally be served on Sunday, as the act of 1705, Purd. Dig. 630, declares, that “ no person or persons upon the first day of the week, shall serve or execute, or cause to be served or executed, any writ, precept, warrant, order, judgment or decree, except in cases of treason, felony, or breach of the peace,” and the offence charged here was neither of these. He referred to Mitchell v. Cowgill,
      
       to shew that the act of assembly protects magistrates only when in the execution of their office, and that so much strictness was not required here in notices, as in England. But, at all events, he submitted that the Court below had no right, on a reserved point, to direct a nonsuit to be entered.
    
      
      Campbell, in reply,
    observed, that it might be contended, that unnecessary travelling falls within the prohibition of the act of 22d April, 1794, Purd. Dig. 630, “against worldly employment or business,” in which case, the magistrate’s proceedings would be justifiable. But, whether this be the construction or not, the magistrate has a general jurisdiction over the subject matter; he acted merely as a magistrate, and if he mistook the law he is entitled to the privilege of a previous notice, in order that he may make amends, if he sees proper. The act is intended for cases of this kind. «This act,” says Tilghman C. J. in Mitchell v. Cowgill, “should be liberally construed for the protection of justices of the peace who are not often lawyers, and' are frequently called on to act in th'e discharge of their duty without an opportunity of taking advice. It is but reasonable, that they should have time to reflect, and to make amends to the person injured in case they should inadvertently do wrong.”
    
    
      
      
         4 Binn. 20.
    
    
      
       4 Binn. 20.
    
   The opinion of the Court was delivered by

Gibson J.

The English statutes for the protection of officers of justice, being remedial, have always been liberally construed in favour of the object which-induced their enactment; and our act of assembly, which is entirely analogous, has, as far as we have gone, with the exception of a trifling relaxation as to the form of the notice, received the same construction. In Prior v. Craig, where the suit against the magistrate was instituted before a justice of the peace, it was held, that notice was necessary by the equity of the act, although the letter of its provisions was applicable only to causes in Court. It may be laid down as a general rule, that wherever the officer has -acted honestly, although mistakingty; where he supposed he was in the execution of his duty, although he had no authority to act; he is entitled to the protection of the act of assembly. But the cause of action must be, a wrong suffered from an act done by the justice “ in the execution of his office,” and hence an argument that there being no law which either makes travelling on Sunday an ofFence, or gives a justice of the peace summary jurisdiction over it, the magistrate could not, in this instance, have acted in the execution of his office ; for that where he has no jurisdiction but what is unlawfully assumed, his acts can have no connection with his official duty. But the having of jurisdiction is not the criterion; for if one magistrate were to act in a case in which jurisdiction is expressly comndtted to two, he would still be entitled to notice. Where indeed the act done is entirely foreign to the magistrate’s jurisdiction, nothing can give it official colour; but where he has a general jurisdiction over the1 subject matter, and intended to act as a magistrate, he will be entitled to all the benefit which the act of assembly secures to him in any case. For the purpose of bailing, or committing, a justice has general jurisdiction over every thing constituting an offence against the laws; and if, in an honest exercise of it, he judges erroneously of the legal character and consequences of an act done, and treats as an offender a person who has committed no crime, does he not present exactly that sort of case for which the legislature intended to provide? For if the justice should act within the limit of his jurisdiction, he would not be answerable for mere mistake of judgment on the merits ; and, not being a wrong-doer, his conduct would call for no protection from this or any other act of assembly. Now what was there in this case but a misconception of the nature and character of the act of travelling ? By the act of 22d April, 1794, justices of the peace may punish in a summary manner for performing “ any worldly employment or business whatsoever, on the Lord’s dayand although travel-ling does not, in a legal sense, fall within the description of worldly employment or business, it is a subject on which a magistrate might readily be mistaken ; for a carrier driving his team along the highway, which bears a striking resemblance to travelling, would be in the exercise of his vocation, and, if on Sunday, obnoxious to the penalty of the law. Where, however, the magistrate assumes an official character only to give colour to the act, he will not be entitled to notice ; and of the state of the fact, if it be doubtful, the jury may judge. Here, however, there can be no doubt as to the fact j and the magistrate was therefore protected by the want of notice. Then as to Miller, the other defendant, who acted as constable, and, as stated in the ease, strictly according to the command of the warrant, there can be no pretence, let the defence of the magistrate be .as it may, that the suit could be sustained against him. Where a constable has pursued his warrant he can be affected with want of jurisdiction in the magistrate, only where he is sued alone, having, after a proper demand, refused to furnish a copy of the warrant for the space of six days ; but when, as in this case, he is sued jointly with the magistrate, whether after demand and refusal or not, he will be protected, whether the verdict be against or in favour of the magistrate. In the Court below, it would seem, the defence of both was put on the same ground, want of notice to the magistrate ; but the act makes a plain distinction between them, as to the defence they may respectively make: for where the constable has been governed by the mandate of his warrant, he has nothing to do with the magistrate or his want of jurisdiction; nor can he be made jointly responsible with him, unless he refuses to shew his warrant, and thus by his own act puts it out of the plaintiff’s power to distinguish between them, and to pursue the magistrate as the person exclusively liable. But although the opinion of the Court was, on the merits of the question, substantially right, the judgment of nonsuit, which could be rendered only with the assent of the plaintiff, and which from any thing that appears was adverse, cannot be sustained; for the point having been reserved, the proper course was to grant a new trial. The particular kind of judgment entered, being therefore wrong, is reversed, to enable the Court below to give the defendants the benefits of the act of assembly in another trial.

Judgment reversed, and a venire facias de novo awarded. 
      
      
        Ante, 44.
     
      
      
        Note. — Vide Weller v. Toke, 9 East's Rep. 364.
     