#### HARMON AND WATROUS v. GOULD.

Jurisdiction — householders—return—trespass—posse—liabilitj'—privies.

If the return of the officer show that the court has no jurisdiction of the cause, the plaintiff and the justice proceed at their peril, end the judgment will not protect them.

But the constable and others executing process of execution on such judgment will be protected by it, if strangers to the want of jurisdiction.

A plaintiff proceeding in such case, cannot protect himself by being summoned in the constable’s posse, as he is privy to the whole proceeding.

Error to the Common Pleas. Gould brought trespass de bonis, &c. against Harman and Watrous, &c. They plead severally, 1. *710Not guilty. 2. That Harmon recovered judgment before a justice' of the peace against Gould, and sued out an execution, which was delivered to the constable, who levied upon the goods, and by the command of the constable, the defendants, Harmon and Watrous, as his servants in the execution of the writ, took and removed the goods. The plaintiff replied, that the justice who issued the writ, had no jurisdiction of the person of Gould, as he at the time suit was brought, and for thirty days before, resided with his family out of the county in which the suit was brought — and the- return of the constable, ‘served by leaving a copy at the defendant’s *last place*of residence in town,’ showed want of authority, and, therefore, judgment and execution is void. To this there was a genei'al demurrer, which the court below sustained. To reverse which, this writ of error is brought.

*Whittlesey*and *Knapp, for*the plaintiff,

cited 29 *O. L. 172; 3 Bl. C.*273; 5 *J. R.*37; 19 *J. R.*39; 1 *Ch. PI.*167, 8, 9; 5 *Cranch R.*173; 3 *Cranch. R.*331; 3 *Bin. R.*404; 12 *John. R.*257; 7 *Cowen R.*269; 11 *J. R. 444.*

*Wilder,*contra.

Wood, J.

According to the statute, resident freeholders of the county can only be sued before a justice of the township where they reside except in special cases: (29 O. *L.*,173.) The process may be served personally, or by copy left at the defendant’s *dwelling house or place of abode.*In the case before us, the service was not *personal,*nor was it at the place of abode of the defendant, but at his *last place of residence in town.*The demurrer admits that when the suit was brought and for thirty days before the defendant resided out of the county. There was, then, no authority for the plaintiff and the justice to proceed, the return was notice to them of the want of personal service and *oí*residence; consequently as to them the judgment and execution could, be no protection. Nor will it avail the plaintiff below, that the constable, officially acting at his instance on illegal process, commanded him to assist — the whole proceeding is at his instance, and he is answex-able. He cannot divest himself of his knowlege and character of an actor at the command of a constable who is set to work by himself. ' But as to the constable and Watrous, both strangers to the proceedings before the judgment, the process of execution, valid on its face, is a justification: (6 *O. R.*147, &c.) The demurrer, therefox-e, should have been sustained as to Watrous, and overruled as to Hannon. The judgment is affirmed as to Watx'ous and reversed as to Harmon, and remanded back for further proceedings.