defendant for service on said April 13, 1897. That afterwards, to wit, on April 15, 1897, at the town of Brown's Valley, in said county and State, the defendant, as such sheriff, and under and by virtue of said execution, duly levied upon the wagon described in said complaint, as the property of the said John Johnson, and not otherwise, and now detains the same by virtue of said levy. . .

E. F. Crawford, for appellant. . . . The preponderance of authority is in favor of the proposition that an officer is exempt from liability for executing process fair on its face, though he has knowledge aliunde of a defect in the process.

Aaron B. Kaercher, for respondent. The writ relied upon by appellant discloses on its face the fact that the amount claimed in it as due was not founded on the records or judgment of the court, but as "costs in said action," which costs appellant knew were costs claimed by himself under a levy made under another execution in another action. If notice were necessary, the recital in the writ of the amount to be collected is in such form as to be notice to the sheriff of the irregularity. But, aside from this, he had actual knowledge of the fact that both these judgments had been paid previous to the issuance of the executions. Under such circumstances, he cannot invoke the rule of protection to an officer of a writ "regular" on its face. . . .

BUCK, J. [after stating the case as above]. The case was tried by the defendant upon the theory that the execution by virtue of which he took the wagon, being regular upon its face, was a sufficient justification for such act, and protected him from any liability for so doing. The sheriff generally acts in a ministerial capacity, and he is bound to execute process issued from a court having jurisdiction, when the power to execute such process is conferred upon him by law, when it is in due and regular form, is fair upon its face and properly delivered to him. Hazards and dangers frequently embarrass a sheriff in the execution of process, and he is often in peril, even when acting in the utmost good faith. Hence the general rule is quite well settled that he is protected in the execution of process fair on its face. He is not concerned as to whether there exists a cause of action upon which the judgment was rendered, or that there were irregularities by which it was obtained.

But this rule of "process fair on its face" is one of protection merely, and personal to the officer himself, and affords him no shelter where he is the moving party in causing it to be wrongfully issued solely for his own benefit, and where he knows the judgment upon which it is issued to have been paid and satisfied. The parties interested in the judgment upon which the execution was issued, were the plaintiff and defendant, and the judgment, including costs, was satisfied in fact and in law, and so appeared of record, and to the actual knowledge of the defendant sheriff. The judgment upon which the defendant relies for his justification under the execution was rendered and docketed

...

February 1, 1897, and was satisfied in full March 17, 1897, by attorney, and an entry thereof made in the docket opposite such entry. The execution in question was issued April 13, 1897, solely for the collection of the fees of the sheriff, amounting to $11.60, incurred in another action, although the execution recites that they were incurred in the action between the parties named therein. . . . It is fairly inferable that the sheriff had notice of all these facts before he levied upon the wagon in question, and many of the facts were proven beyond doubt. In fact, there is no dispute as to the facts. The sheriff did not testify in his own behalf. Upon these facts we do not think that the doctrine that the sheriff was protected in the execution of the process applies, even assuming it to be fair on its face. The proceeding was for the benefit of the sheriff, and, if he was not the instigator of it, there can be no doubt but that he had knowledge of the entire illegal transaction, and was a party to it. We cannot sanction such a proceeding, and the judgment is affirmed.

(b) WARRANT ERRONEOUSLY ISSUED BY JUDGE LACKING JURISDICTION OVER MATTERS OR PERSONS

1041. TELLEFSEN v. FEE

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1897

168 Mass. 188, 46 N. E. 562

The defendant, a con

TORT, for assault and false imprisonment. stable of the city of Boston, justified under a writ issued by the Municipal Court of said city, in favor of Nels C. Johnson, described as of Boston, against one Tellefsen, described as master of the steamship Albert, commorant of said Boston. The declaration was on an account annexed for work on the steamship. To the writ was annexed a certificate of a master in chancery, authorizing the arrest, if the arrest was authorized by law.

At the trial in the Superior Court, before HOPKINS, J., it appeared that the defendant was a duly qualified constable of the city of Boston; That one Nels C. Johnson, a Norwegian subject, sued out the writ set up in justification to recover money alleged to be due to him for services as one of the crew of the steamship Albert, a Norwegian vessel, of which vessel the plaintiff, a Norwegian subject, was captain; That the steamship was about to leave port; That Johnson had shipped without signing shipping papers with the plaintiff, at the port of New York, for the run to Boston; and, That Johnson left the ship at Boston because his term of service had expired. It also appeared that the arrest of and the alleged assault upon the plaintiff were made upon the deck of the vessel while she was lying at the wharf, the plaintiff being handcuffed; that defendant was informed before he made the arrest that

the vessel was a Norwegian one, and that the plaintiff was a Norwegian subject, and was captain of the vessel; and that the claim of Johnson would be adjusted at the consulate of the Kingdom of Sweden and Norway in Boston. It also appeared that the defendant kept the plaintiff under arrest upon the deck of the vessel and in the cabin until the plaintiff paid the defendant under protest the amount claimed to be due to Johnson. The evidence as to the amount of force used by the defendant, and as to the character of the arrest, was contradictory. At the close of the testimony the plaintiff asked the judge to rule that, by the treaty between the United States and the Kingdom of Sweden and Norway, the plaintiff was exempt from arrest at the time the defendant arrested him, and that the process with which the defendant was armed at the time he made the arrest was not sufficient to justify the defendant in arresting him under the circumstances disclosed in the case, the plaintiff being a Norwegian and upon a Norwegian vessel and in command of it; but the judge refused upon all the evidence so to rule, and ruled that the defendant, under his writ, was justified in making the arrest unless the jury should find that he used excessive force, and instructed the jury as to what would constitute excessive force in a manner not excepted to by the plaintiff. To which ruling and refusal to rule the plaintiff excepted. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The counsel for the defendant were not the counsel who made the attachment in the original case, and the counsel for the plaintiff did not appear in the case in the Superior Court. The case was argued at the bar in November, 1895, and afterwards was submitted on briefs to all the justices.

J. Lowell & E. S. Dodge, for the plaintiff.

B. Hall, (A. F. Coulter with him,) for the defendant.

LATHROP, J. . . . 1. By Art. 13 of the treaty between the United States and Sweden and Norway of 1827, 8 U. S. Sts. 346, 352, it is provided that.

the consuls, vice-consuls, or commercial agents, or the persons duly authorized to supply their places, shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews or of the captain should disturb the order or tranquillity of the country."

Where jurisdiction is given by a treaty to a consul, vice-consul, or a commercial agent, he alone has authority to act in determining in the first instance whether wages are due, and the amount. . . . It appears, therefore, that the consul of Sweden and Norway had exclusive jurisdiction of the controversy or difference between Johnson and Tellefsen, and that the Municipal Court of the city of Boston had no jurisdiction either of the subject matter or of the persons of

the parties in the action which the seaman saw fit to bring against the master.

2. The officer who arrested the master was therefore acting illegally and without justification, and is liable in this action, unless he is protected by virtue of his writ. This presents a question of some difficulty and one which is not wholly free from doubt. Before proceeding to consider the principal question, it may be well to state briefly certain principles laid down by the courts in regard to which there is little or no dispute.

Where the process is in due form and comes from a court of general jurisdiction over the subject matter, the officer is justified in acting according to its tenor, even if irregularities making the process voidable have previously occurred. . . . Where, however, the process is void on its face, the officer is not protected. .. An officer is bound to know the law, and to know the jurisdiction of the court whose officer he is; if, therefore, he does an act in obedience to a precept of the court, and the court has no jurisdiction in the matter, either because the statute under which the court acted is unconstitutional, or there is a want of jurisdiction for any other reason, it would seem that the officer is not protected. There are many authorities to this effect. . . .

Whether this doctrine applies to a case like the present, where the court had general jurisdiction over the subject matter, but no jurisdiction over the particular controversy between the parties, and no jurisdiction over their persons, we need not decide, because on the facts in this case we are of opinion that the officer may be held liable. He was informed before making the arrest that the vessel was a Norwegian vessel, and the captain of the vessel a Norwegian, and that the claim of Johnson would be adjusted at the consulate of the Kingdom of Sweden and Norway. Being informed of the facts, he was bound to know the law, that the court had no jurisdiction over the person of the captain or the subject matter of the action. Sprague v. Birchard, 1 Wis. 457, 464, 469. Grace v. Mitchell, 31 Wis. 533, 539, 545. Leachman v. Dougherty, 81 Ill. 324, 327, 328. There are, without doubt, cases which lay down a more stringent rule, and say that the officer need not look beyond his precept, and is not bound to take notice of extrinsic facts; but all of these are cases which are distinguishable from the case at bar. . . Of course, where the court has jurisdiction of the subject matter and of the parties to an action, knowledge on the part of the officer, or information to him, that there is some irregularity in the proceeding can make no difference. Underwood v. Robinson, 106 Mass. 296. Nor can it make any difference that the officer is informed that there is a defence to the action, such as that the defendant has a receipt; Twitchell v. Shaw, 10 Cush. 46; or a discharge in insolvency; Wilmarth v. Burt, 7 Met. 257; or that the defendant is an infant; Cassier v. Fales, 139 Mass. 461. But the question of jurisdiction is a more serious matter, and if facts are brought to the attention of the

officer about which he can have no reasonable doubt, and he knows, or is bound to know, that on these facts the court has no jurisdiction of the controversy, he may well be held to proceed at his peril.

We can see no hardship upon the officer in holding him responsible in this case for an illegal arrest and for a false imprisonment. If an officer has reasonable cause to doubt the lawfulness of an arrest, he may demand from the plaintiff a bond of indemnity, and so save himself harmless. Marsh v. Gold, 2 Pick. 285, 290. We are not aware that this case has ever been doubted; and in practice, bonds of indemnity have often been required.

In the opinion of a majority of the Court, the instruction requested should have been given. Exceptions sustained.

KNOWLTON, J. It seems to me that the opinion of the majority of the Court is wrong in holding that the defendant was bound to receive statements made by the plaintiff or others for the purpose of determining whether he could lawfully serve a writ which was regular in form, and which on its face showed a case within the jurisdiction of the court. The exceptions on this point present a naked proposition of law, and raise no question in regard to the good faith of the defendant in performing his official duty. The writ which he served stated an ordinary case for the collection of a debt. An officer is bound to know the law, even to the extent of determining whether a statute on which his process is founded is or is not constitutional. But for the facts, he is not called upon to take the testimony of anybody in regard to anything outside of the statements contained in the process, nor even to act upon what he believes to be his own knowledge. The jurisdiction which the court must have in order to justify him is jurisdiction of the case stated in the writ. . . . These reasons seem to me fully to cover the present case.

The cases in Wisconsin and Illinois cited in the opinion are the only ones that I have been able to find, after considerable investigation, which hold a different doctrine. On the authorities cited above, I am unable to see that it makes any difference whether the outside information communicated to the officer, if taken to be true, would show the real case to be one upon which such a precept cannot properly be issued because it comes within a treaty giving exclusive jurisdiction to another tribunal, or would show the precept to be unwarranted for any one of numerous other causes. That the defendant in the original action happens to be a captain of a Norwegian ship, and to owe the plaintiff in his official capacity, gives him a privilege, of which he may or may not avail himself, to take the case out of the general jurisdiction of the court. I think this fact calls for the application of the same principle as at strictly personal privilege. Indeed, the principle of the cases seems to cover every kind of external fact which operates to take away a jurisdiction that appears to be perfect on the face of the papers. It has been held that an officer may, if he chooses, act upon his knowledge or in