Savacool v. Boughton
New York Supreme Court
■ Demurrer to replication. The plaintiff declared in trespass for an assault, battery and false imprisonment. The defendant pleaded, 1. The general issue; 2. A justification, for that he as a constable, by virtue of an execution issued by a justice of the peace, on a judgment rendered against the plaintiff in assumpsit, for $7,38, arrested the plaintiff and committed him to jail; and 3. A similar justification, setting forth the judgment.
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■ Demurrer to replication. The plaintiff declared in trespass for an assault, battery and false imprisonment. The defendant pleaded, 1. The general issue; 2. A justification, for that he as a constable, by virtue of an execution issued by a justice of the peace, on a judgment rendered against the plaintiff in assumpsit, for $7,38, arrested the plaintiff and committed him to jail; and 3. A similar justification, setting forth the judgment. The plaintiff replied to the second and third pleas precludi non, because, previous to the rendition of the judgment set forth by the defendant, the justice…
1Opinion of the Court
By the Court,
Marcy, J.
What an officer is required to shew to justify himself in the execution of process, is not very clearly settled. There is considerable contrariety of authority on the subject. Where it appears on the face of the process that the court or magistrate that issued it had not jurisdiction of the subject matter of the suit, or of the person of the party against whom it is directed, it is void, not only as respects the court or magistrate and the parly at whose instance it is sued out, but it affords no protection to the officer who has acted under.it.
Where the court issuing…
2Cases cited1 opinion
- Gold v. BissellNew York Supreme Court · 1828
3Cited by133 opinions
- National Bank of Chemung v. City of ElmiraNew York Court of Appeals · 1873
- Brown v. StateSupreme Court of Alabama · 1895
- Wall v. TrumbullMichigan Supreme Court · 1867
- Earl v. Camp & StoneNew York Supreme Court · 1837
- Kerr v. . MountNew York Court of Appeals · 1863
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