#### *Walter V. Foster vs. William Gault.*

1. A constable, in the discharge of an official duty, is not bound or required by law to look beyond the process which requires him to act. If the court issuing the process has jurisdiction oyer the matter in- which he is required to act, it is his duty to execute the process. He is neither permitted or required to look behind it to see if the court has done its duty, and complied with all that the law requires as a prerequisite to the issur ing of the process.

2. A ministerial officer, whose duty it is to execute a process, is justifiable under that process, unless it be void, and not merely voidable.

*Before*Evans, J., Union, *Spring Term,*1842.

This was an action of trover, under the following circumstances. One William Runnells sued out a domestic attachment against the plaintiff and his father, William T. Foster, for a debt -under twenty dollars. The process was placed in the hands of the defendant, an acting constable of the district, who seized upon and took into his possession *336a mare, the subject of this action. The evidence was very satisfactory, that the mare was the property of the plaintiff. The magistrate condemned the mare to be sold, to satisfy the judgment in favor of Runnells, and the constable, in pursuance of this order, sold the mare. This was the conversion complained of.

The magistrate stated, that before issuing the attachment, he took a bond from the plaintiff, Runnells, but did not require security, as he was amply sufficient. The presiding Judge, in his report, states that “ *Ido not remember the words of the*affidavit, *but I think they loere substantially what is required by the attachment Acts!*

The jury Were charged by the court, that so far as the constable was concerned, it was wholly immaterial whether there was security to the bond or not. The question was, whether the constable, a mere executive officer, was bound to look beyond the precept under which he acted.

The jury found for the defendant, and the plaintiff appealed, on the following grounds :

1. Because his Honor the presiding Judge erred in charging the jury that a magistrate’s judgment and order for sale, predicated on a domestic attachment, in a case where the plaintiff in attachment had not given bond with surety, as the law directs, to indemnify the defendant, was, nevertheless, sufficient to justify the constable in selling the defendant’s property.

2. Because the affidavit of the plaintiff in attachment, under which the property of this plaintiff was sold, was informal, and consequently the magistrate’s order for sale void, and conferred no power on the defendant to sell the plaintiff’s property.

3. Because the law and evidence entitled the plaintiff to recover.

Herndon, for the motion,

cited Acts 1839, p. 29. sec. 30, and contended that a magistrate’s jurisdiction being a limited one, and having no other powers, the party should bring himself under the specific provisions of the Act; and he referred to the case of *Haigood vs.*Hunter, 1 McCord, 511. It is necessary, in all process issuing from an inferí- *337or jurisdiction, that the magistrate should specify particularly the authority under which he acted, and shew the facts, in order to justify the constable, and enable him to shew that the magistrate had jurisdiction over the matter. -Cited 1 N. <fe McC. 227; Chev. Rep. 5, *Devall vs. Taylor.*

A. W. Thompson, contra,

said our constables must be protected. The constable in this matter was not required to know or look beyond the process under which he acted. The constable’s office is one of rather an inferior grade, and it is difficult often to obtain competent men to fill those offices; and unless they are protected by law, no respectable and competent persons can be found to fill them.

*Curia, per*

Evans, J.

The objections made to the verdict in this case are — 1st: that the magistrate took the plaintiff’s bond without security, as required by law. 2d; because there was an informality in the affidavit upon which the attachment issued. In relation to this last objection, it does appear that the affidavit does not follow *verbatim*the words of the Act of 1785, P. L. 368, though in substance it recites a case wherein the magistrate had jurisdiction. The words of the affidavit are, “that they (the defendants) have absconded, and are about to remove their effects out of this State, or so conceal themselves that the ordinary process of law cannot be served on them.” The words of the 7th 'clause of the Act giving the magistrate jurisdiction, are, “ is about to remove, or is removing, out of the county privately, or so absconds or conceals himself that a warrant or summons cannot be served on him.” In the view which this court takes of the case, it is unnecessary to express any opinion on this part of it. The defendant is a constable, and the law does not and ought not to require that he should look beyond the process which requires him to act. If the process issue from a court having jurisdiction, it is his duty to execute it. He is neither permitted or required to look behind it to see if the court has done its duty, and complied with all that the law requires as a prerequisite to the issuing of the process. In this case, the attachment was levied on the mare, and returned to the magistrate, who thereupon gave judgment for the plaintiff, and ordered the sale of the property *338attached, to satisfy the judgment. It was under this order the defendant, Gault, acted when he sold the mare, which was the only conversion alleged or proved at the trial. There is a wide distinction between those who issue, or procure to be issued, an irregular legal process. The magistrate might sometimes be liable — the party procuring the process to issue, would, in general, be liable — but the ministerial officer whose duty it is to execute it, is justifiable, unless the process be void, and not merely voidable. There is no pretence to say the authority under which the defendant acted was void. The case was within the jurisdiction of the magistrate. The constable was not bound to enquire as to the affidavit, or whether the magistrate had taken security to the bond.

The motion is dismissed.

Richardson, O’Neall, Earle, and Butler, JJ., concurred.