all that can be expected of officers serving writs, which, as has been said, depends upon the particular facts in connection with the duty. A reasonable discharge of the duties of the office at all times, and during all hours, is a responsibility attached to this office. Such an officer is required in each case to act honestly and diligently with due regard to his duties to all litigants and to the public.33

In the interests of a speedy administration of justice, and to secure a prompt compliance with all requirements of the law and orders of courts, it is fundamental that the executive officer should, so long as he reasonably performs the mandates of the court, and does not depart therefrom, or improperly perform the same, be free from personal responsibility. It is no part of the duty of an officer to determine whether process has been rightly issued or not. All that is required of him is to obey the command of a writ regular upon its face, which is issued from a tribunal having judicial powers.

One of the most satisfactory expositions of the general doctrine on this subject, which has been universally adopted and followed, is found in the timehonored and leading case of Savacool v. Broughton, 5 Wend. 170, 21 Am. Dec. 181. The principle there enunciated is, that process void on its face does not justify an officer in executing it, when it appears from the writ that it was issued from a court having no jurisdiction of the subject matter or of the person. On the contrary, an officer may justify under a writ regular on its face, whether issued from a court of general or of limited jurisdiction, if the

33 Phillips v. Ronald, 3 Bush, 244, 96 Am. Dec. 216; Commonwealth v. Gill, 14 B. Mon. 22; Whitney v. Butterfield, 13 Cal. 335, 73 Am. Dec. 584; Hinman v. Borden, 10 Wend. 367, 25 Am. Dec.

subject matter of the suit is within the jurisdiction of the court, and nothing appears in the process to apprise the officer of any want of jurisdiction over the person affected by the process. This doctrine is so fundamental that it is useless to cite more than a few leading cases.34

§ 177. Duty When Officer has Knowledge Dehors the Writ. The question of the duty of an officer when a writ, regular on its face, is placed in his hands, when he has information of defects or irregularities aliunde, is an important problem to both litigant and officer. We are confronted with a conflict of authority, but what is thought to be the correct rules will be presented.

Several considerations and principles enter into the determination of the matter, and it is believed that it is impracticable to lay down an ironclad rule, one adapted to any and all conditions and circumstances. In this situation, as in all others, as before stated, reasonable prudence is required of the officer. Regard, too, must be had for the fact that the officer is only a ministerial one, entirely disqualified for deciding any difficult questions of jurisdiction, and also for the rule, thoroughly imbedded in the law, that such officer is not required to inquire into the regularity of the proceedings of the tribunal from which process is issued, and determine at his peril whether it was lawfully issued or not. His duty is to execute it, if in due form of law, regular on its face, and comes duly authenticated from a

34 Savacool v. Boughton, 15 Wend. 170, 21 Am. Dec. 181, and a complete exposition of the entire subject with a full citation of authorities in a note by Mr. Freeman, on pages 190-209, of the same volume; Burnham v. Stone, 101 Cal. 164, 35 Pac. 627; Emery v. Hapgood, 7 Gray, 55, 66 Am. Dec. 459; Hamner v. Ballantyne, 13 Utah, 324, 57 Am. St. Rep. 736, 44 Pac. 704.

court or magistrate having jurisdiction of the subject matter.

It is difficult to imagine when an officer would be justified in ignoring this rule because of knowledge of irregularities dehors the writ. It has been well said in one of the decisions touching this question that: "It is essential to an efficient administration of the law that there be effectual execution of legal process, to the accomplishment of which promptness and expedition are necessary. Questions of jurisdiction are often difficult of correct determination, depending sometimes for their proper decision upon complications of fact, and involving the employment of legal learning and judicial investigation; and to require ministerial officers with process in their hands for execution to stop and determine such questions, by looking beyond the face of the process before proceeding to execute its precepts would not only be incompatible with the nature of their office and the proper discharge of their duties, but must necessarily retard the administration of justice, and often obstruct or defeat the remedies of parties. The officer may honestly believe that he is in possession of information beyond the writ that deprived the tribunal from which it came of jurisdiction over the party, and yet be mistaken; or he may in good faith believe there was such jurisdiction, and yet have knowledge of facts which exclude it, and if he could be charged with a liability for every such erroneous, though honest, judgment, on the question of jurisdiction, it is not difficult to understand the delays and embarrassment that must result in the business of the courts."

This reasoning is insurmountable, and it will be found applicable in all ordinary cases, and, as ap

Torts, Vol. I-26

pears in the note, is abundantly supported by authority.35

With reference to service of process to bring parties into court, it is particularly forceful. Seldom, if ever, will we encounter a case where an officer would be justified in refusing to serve the initial process in a case because he may honestly believe it to have been wrongfully issued. So, likewise, should it control the officer in the service of auxiliary writs, as attachments, the service of which demands promptness, and upon which may depend the life of plaintiff's suit.

Another phase of the rule should be stated. An officer, upon obtaining knowledge from sources other than the writ that the court or officer issuing it was without jurisdiction, may decline to serve it without subjecting himself to personal liability to the plaintiff in the case, or he may pursue the other alternative and rely upon the apparent regularity of the process, and execute its commands without rendering himself liable to the defendant.

36

As stated in the beginning of this discussion, we are confronted with what is said to be a conflict of authority upon this question, but it seems that upon a careful consideration of the uses and purposes of the doctrine under consideration, and the cases where

35 Henline v. Reese, 54 Ohio St. 599, 56 Am. St. Rep. 736, 44 N. E. 269; citing Crocker on Sheriffs, sec. 283; People v. Warren, 5 Hill, 440; Webber v. Gay, 24 Wend. 485; Watson v. Watson, 9 Conn. 140, 23 Am. Dec. 324; Wilmarth v. Burt, 7 Met. 257; Erskine v. Hohnbach, 14 Wall. 613; Wall v. Trumbull, 16 Mich. 228; Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151. See, also, State v. Weed, 21 N. H. 262, 53 Am. Dec. 188; Aldrich v. Aldrich, 8 Met. 102; Twitchell v. Shaw, 10 Cush. 46, 57 Am. Dec. 80; Carle v. Delesdemier, 13 Me. 363, 29 Am. Dec. 508; Underwood v. Robinson, 106 Mass. 296.

36 Henline v. Reese, 54 Ohio St. 599, 56 Am. St. Rep. 736, 44 N. E. 269.

it has been involved, that the conflict of judicial opinion disappears.

Looking to the efficacy of a writ, regular on its face, but issued upon a void judgment, or a writ apparently valid but in fact invalid for other irregularities, so far as concerns the retention of property taken by the officer in pursuance of its command, as against the rights of a defendant affected by the void judgment, quite a different proposition is presented than is in the consideration of the question of the personal liability of the officer serving such a writ, either to a plaintiff or a defendant in a case. herein lies the confusion.

And

It is held in a number of cases that if the officer has personal knowledge of defect in the proceedings which renders the process void or voidable, that by reason of such knowledge he will lose the protection of the process. Such a doctrine is sound if applied in a case of replevin to recover the possession of property seized under an execution void for want of jurisdiction, the execution served by the officer being regular on its face. It will be found that the cases announcing the so-called conflicting doctrine are based upon such a state of facts. And who could deny the rightful owner of property relief under such circumstances? The cases upon this phase of the question and which have been said to be in conflict with the doctrine previously stated are here cited.37

37 Grace v. Mitchell, 31 Wis. 533, 11 Am. Rep. 613. "In the trial of the title or right to property in the officer's hand under the writ, he must, however, produce the judgment, though the writ is fair upon its face, and he has no knowledge that the judgment is void, or that there is none. Such a proceeding is against the property, or to recover it, and not to subject the officer to responsibility for his acts in obedience to mandates of the court": Amner v. Ballantyne, 13 Utah, 324, 57 Am. St. Rep. 736, 44 Pac. 704; citing