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Qui jussu judicis aliquod fecerit non videtur dolo malo fecisse, quia parere uecesse est

He who does anything by command of a judge will not be supposed to have acted from an improper motive ; because, it was necessary to obey.


It is under this rule that an officer is protected in the execution of any process issuing from a court or judge of competent jurisdiction. But it may be stated, that where the court or judge has not jurisdiction, or the matter adjudicated upon is not within such jurisdiction, in that case the officer is not so protected ; excepting in the case of a constable, etc, lawfully acting under warrant of a justice of the peace, who is in such case protected by express statutory enactment. The rule as to judges and judicial officers is, that they are not liable for injury caused by the due exercise of their judicial functions, even though done in error or mistake of judgment ; but it is otherwise where they act beyond the limit of their authority. And so, also, ministerial officers acting under judicial authority are exempt from liability for the consequences.

If a ministerial officer of a court take upon himself the exercise of judicial functions, as to issue a judicial order, he is liable for all the consequences resulting from the carrying such order into effect ; for the judicial authority cannot be delegated. But if such order is prima facie issued with proper judicial authority, the mere ministerial officer who bond fide receives the warrant to execute, and does so execute it, is not responsible for what is done under it.

A sheriff is protected in the proper execution of all writs directed to him ; but if he execute them in a manner not justified by the law, he will be liable in damages. For instance, if he has acted under a genuine writ issued from one of the superior courts, lie and his officers acting under him are protected by it, though it be irregular on the face of it ; as a capias against a peeress, or, one void in form ; as a capias not properly returnable. For, it is not their duty to examine the judicial act of the court, nor to exercise their judgment as to the validity of the process in point of law ; but they are bound to execute it, and are therefore protected by it.

So where one was in prison upon a ca. sa. in an action for an assault and false imprisonment, and, petitioning the Court of Bankruptcy, was discharged by order of the commissioner ; in an action against the keeper of the prison for an escape ; it was held that, whether or not that was a debt from which the com￾missioner had power to discharge the prisoner, yet the defendant was protected, being bound to obey the order of the commissioner, who was acting judicially in a matter over which he had jurisdiction.

But it is otherwise where a ministerial officer acts in execution of an authority not bond fide, or under an order of a judge assumed, without jurisdiction. For, if the process under which a sheriff or his officers act in taking in execution the body or goods is forged or feigned, it is not the order of the court ; it is a nullity, and they derive no protection from it. So, if a commissioner in bankruptcy wrongfully order the imprisonment of a debtor, he having no jurisdiction ; the messenger executing the order will be assumed to know of such want of jurisdiction, and will be liable in an action for the false imprisonment. But a genuine writ, though irregular, is always a justification to the sheriff and his officers, who had no option but to obey.

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