ty." 125 No responsibility is therefore incurred where the officer acted under process apparently regular, but in fact based upon a judgment prematurely rendered,126 or rendered against one who had not been summoned,127 or where the justice before whom it was obtained lacked jurisdiction, because defendant resided in another county.12 Nor is he liable for a levy and sale where the execution by virtue of which it was made had been issued after the judgment had been paid,129 nor for an arrest on a capias based upon contempt committed during a trial before a justice, though the punishment was imposed after the trial had terminated, and hence was unauthorized, under a statute which permitted a justice to take such action only during the pendency of the cause.130 An officer "cannot be affected," it has been said, "by any irregularity occurring prior to the issue of his precept, nor by the existence of any fact which deprives the court or magistrate of jurisdiction in that particular case, provided the defect be not disclosed by the precept itself, nor known to the officer. Even if the defect be one which renders the precept void in its operation between the parties, or for the transfer of property, yet it will not subject the officer to liability as a trespasser." 19 131 upon property not covered by the writ. Einstein v. Dunn, 61 App. Div. 195, 70 N. Y. Supp. 520, affirmed 171 N. Y. 648, 63 N. E. 1116. 125 Cooley on Torts (3d Ed.) p. 883. "If a mere ministerial officer executes any process upon the face of which it appears that the court which issued it had not jurisdiction of the subject-matter or of the person against whom it is directed, such process will afford him no protection for acts done under it. If the subject-matter of a suit is within the jurisdiction of a court, but there is a want of jurisdiction as to the person or place, the officer who executes process in such suit is no trespasser, unless the want of jurisdiction appears by such process." Savacool v. Boughton, 5 Wend. (N. Y.) 170, 181, 21 Am. Dec. 181, per Marcy, J. 126 Wilbur v. Stokes, 117 Ga. 545, 43 S. E. 856. 127 Savacool v. Boughton, 5 Wend. (N. Y.) 170, 181, 21 Am. Dec. 181. 128 Heath v. Halfhill, 106 Iowa, 131, 76 N. W. 522. 129 Lewis v. Palmer, 6 Wend. (N. Y.) 367; Twitchell v. Shaw, 10 Cush. (Mass.) 46, 57 Am. Dec. 80. 130 Clarke v. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470. 131 Chase v. Ingalls, 97 Mass. 524, 529, per Wells, J. For further illustrations of action under process fair on its face, see Baker v. From the statement just quoted it would appear that, though the process be fair on its face, the officer would be accountable where he is aware that facts exist which render it void. A later decision from the same state confirms this. Here the constable had arrested a Norwegian subject, master of a Norwegian vessel, in a suit brought by a seaman for wages. Before serving the writ he had been informed that because of a treaty the court lacked jurisdiction. This, it was held, rendered him liable for false imprisonment.182 While this view is not without support,133 it has not met with general approval.134 To withhold protection under such circumstances seems to be of doubtful propriety.135 Where the process is not fair on its face, it furnishes no justification to the officer who has acted under it. Such, it has been held, would be a general warrant to search all suspected places, and search and arrest all suspected persons, Melcher v. Scruggs, 72 Mo. Sheehan, 29 Minn. 235, 12 N. W. 704; 132 Tellefsen v. Fee, 168 Mass. 188, 46 N. E. 562, 45 L. R. A. 481, 60 Am. St. Rep. 379. 133 Leachman v. Dougherty, 81 Ill. 324; Grace v. Mitchell, 31 Wis. 533, 11 Am. Rep. 613. 134 Watson v. Watson, 9 Conn. 140, 23 Am. Dec. 324; Heath v. Halfhill, 106 Iowa, 131, 76 N. W. 522; Brainard v. Head, 15 La. Ann. 489; Wall v. Trumbull, 16 Mich. 228; Webber v. Gay, 24 Wend. (N. Y.) 485; PEOPLE v. WARREN, 5 Hill (N. Y.) 440, Chapin Cas. Torts, 80; Rice v. Miller, 70 Tex. 613, 8 S. W. 317, 8 Am. St. Rep. 630. 185 "To the magistrate is confided the issuing of writs, and to the sheriff and other executive officers is confided the duty of serving them. It is easy to see what widespread mischief might result from permitting an executive officer to decide, on his own knowledge, that he ought not to serve a precept or warrant put into his hands for service, and to consider what justly must follow from such doctrine; that is, that his return of the fact would be a justification for his omission. In short, the executive officer must do his duty, which is to obey all legal writs, and must not arrogate to himself the right of disobeying the paramount commands of those to whose mandates he by law is subjected." Watson v. Watson, 9 Conn. 140, 146, 23 Am. Dec. 324, per Hosmer, C. J. no place or person being designated; 180 an attachment issued by one who had been a justice, but whose term of office had expired at the time; 187 an execution against a judgment debtor whose surname is correctly given, but whose first name, being "unknown to the plaintiff," is stated as the fictitious "John"; 138 and a writ of possession issued by a justice of the peace, which shows that it was based on a judgment in plaintiff's favor to recover "his title and possession" of land, a justice having no jurisdiction to entertain such a proceeding.139 INFANTS 43. While infants are liable for their torts, yet, not being responsible for their contracts, they cannot be held. in an action ex delicto where the cause of action is really ex contractu. For the reason that in an action in tort the law will regard the loss or damage of the party suffering rather than the mental attitude of the actor, it has been thoroughly established that the infant is to be held accountable for his wrongs. "If an infant commit an assault, or utter slander, God forbid that he should not be answerable for it in a court of justice." 140 He has been held liable, therefore, for injuries to real 141 and personal property,142 including its 136 Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200. 137 Smith v. Hilton, 147 Ala. 642, 41 South. 747. 138 Since such a writ does not direct the collection of the judgment from the debtor, and the officer might levy upon the property of any individual of the same surname. Goldberg v. Markowitz, 94 App. Div. 237, 87 N. Y. Supp. 1045, affirmed 182 N. Y. 540, 75 N. E. 1129. 139 Sartwell v. Sowles, 72 Vt. 270, 48 Atl. 11, 82 Am. St. Rep. 943. For further illustrations, see State v. McDonald, 14 N. C. 468; Harwood v. Siphers, 70 Me. 464; Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151; Hussey v. Davis, 58 N. H. 317. 140 Jennings v. Rundall, 8 Term R. 335, 337, per Kenyon, C. J. 141 Scott v. Watson, 46 Me. 362, 74 Am. Dec. 457; Huchting v. Engel, 17 Wis. 230, 84 Am. Dec. 741. 142 As where he threw a firecracker, causing the death of plaintiff's horse. Conklin v. Thompson, 29 Barb. (N. Y.) 218. unlawful taking 148 and detention; 144 for assault and battery,145 libel,140 seduction,147 though under promise of marriage,148 and for negligence.149 It will constitute no defense to a tort that he has acted under the direction of his parent or guardian.150 Nor will the parent or guardian be responsible for the acts of the infant merely because of the relationship. Agency must be proved.151 As any contract arising out of the relation of master and servant or principal and agent is not binding upon the infant, he cannot be held responsible for the acts or neglect of another by virtue of the doctrine respondeat superior in 143 Shaw v. Coffin, 58 Me. 254, 4 Am. Rep. 290. 144 Wheeler & Wilson Mfg. Co. v. Jacobs, 2 Misc. Rep. 236, 21 N. Y. Supp. 1006. 145 Peterson v. Haffner, 59 Ind. 130, 26 Am. Rep. 81; Sikes v. Johnson, 16 Mass. 389. 146 Fears v. Riley, 148 Mo. 49, 49 S. W. 836. 147 Fry v. Leslie, 87 Va. 269, 12 S. E. 671. 148 Lee v. Hefley, 21 Ind. 98; Becker v. Mason, 93 Mich. 336, 53 N. W. 361. But he is not liable in an action for breach of promise to marry, though seduction has been induced by means of the promise. Leichtweiss v. Treskow, 21 Hun (N. Y.) 487; Hamilton v. Lomax, 26 Barb. (N. Y.) 615. 149 As where through careless handling he discharged a gun, Conway v. Reed, 66 Mo. 346, 27 Am. Rep. 354; or while playing threw a ball which frightened plaintiff's horse, Neal v. Gillett, 23 Conn. 437 (judgment reversed on another ground). 150 "Nor can the defendant derive any support from the scriptural injunction to children of obedience to their parents, invoked in defense. No such construction can be given to the command, 'Children obey your parents in the Lord, for this is right.' The de fense is as unsound in its theology as it is baseless in its law." Scott v. Watson, 46 Me. 362, 363, 74 Am. Dec. 457, per Appleton, J. To the same effect, School Dist. No. 1. v. Bragdon, 23 N. H. 507; Humphrey v. Douglass, 10 Vt. 71, 33 Am. Dec. 177. 181 Tifft v. Tifft, 4 Denio (N. Y.) 175; Smith v. Davenport, 45 Kan. 423, 25 Pac. 851, 11 L. R. A. 429, 23 Am. St. Rep. 737; Wilson v. Garrard, 59 Ill. 51. "There is no such relation existing between father and son, though the son be living with his father as a member of his family, as will make the acts of the son more binding upon the father than the acts of any other person." Paul v. Hummel, 43 Mo. 119, 122, 97 Am. Dec. 381, per Wagner, J. Where agency is established the father is liable. Schaefer v. Osterbrink, 67 Wis. 495, 30 N. W. 922, 58 Am. Rep. 875. a case where he has not actually participated in the wrong.152 Hence he is not liable for the malicious prosecution of a suit during his infancy in his name by his next friend, which was brought without his knowledge or authority,153 nor for the negligence of an agent intrusted with the care of his building, which caused an overflow of water, injuring the property of a tenant.15 This does not, however, militate against the rule that as owner or occupant of lands the infant is liable to the same extent as an adult for creating or maintaining a nuisance, or for negligent use or management by his servants. He cannot evade the responsibility nor delegate the duties which ownership entails.155 Now the rule under which infants are held for their torts is not unlimited, but is to be applied with due regard to the settled doctrine that they are not liable on their contracts. "The dominant consideration," it has been said, "is not that of liability for their torts, but of protection from their contracts." 156 Hence, where the obligation sought to be enforced is essentially contractual, they cannot be charged merely because the action may have been brought in tort form, since otherwise the rule under which they receive protection from their contracts might be evaded. If, therefore, the wrong complained of consists merely in the nonperformance or improper performance of an agreement, plaintiff will not be permitted to recover by a trick of pleading, while, on the other hand, infants are liable for a distinct and independent wrong, though the relation between the parties might have been the result of contract. The test, it has been said, is whether liability can be made out 152 Burns v. Smith, 29 Ind. App. 181, 64 N. E. 94, 94 Am. St. Rep. 268. 153 Burnham v. Seaverns, 101 Mass. 360, 100 Am. Dec. 123. 154 Robbins v. Mount, 33 How. Prac. (N. Y.) 24. 155 McCabe v. O'Connor, 4 App. Div. 354, 38 N. Y. Supp. 572, affirmed 162 N. Y. 600, 57 N. E. 1116. Injuries caused by fall of defective wall. 156 SLAYTON v. BARRY, 175 Mass. 513, 515, 56 N. E. 574, 49 L. R. A. 560, 78 Am. St. Rep. 510, Chapin Cas. Torts, 81. |