must presume from the matters stated in the answer, that such was the form of the warrant under which the officer acted; and furthermore a process setting forth these facts would be required by the law under which the proceeding was taken. And it is very apparent that such a warrant would show upon its face the nature of the proceeding, and that the suit was instituted to enforce a maritime lien. In other words, it would show that the Circuit Court had no jurisdiction of the subject-matter of the action, and no power to hear and determine it. And we understand the rule to be, that where the process does thus show a want of jurisdiction in the court of the subject-matter of the action, it is void, and does not protect the officer. In this all the cases agree.

But it is said that this rule imposed upon the officer in the present case the duty of determining, in advance of any decision of the courts of this State, the validity of an act of the Legislature. How can it be expected, it is asked, that a mere ministerial officer could decide such a question, and thus find out that his process was void for want of jurisdiction in the court which iscued it? The maxim Ignorantia juris non excusat — ignorance of the law, which every man is presumed to know, does not afford excuse — in its application to human affairs, frequently operates harshly; and yet it is manifest that if ignorance of the law were a ground of exemption, the administration of justice would be arrested, and society could not exist. For in every case ignorance of the law would be alleged. And consequently the answer must be given in this case, that the ignorance of the officer is of the law, and the rule is almost without an exception, that this does not excuse. It may devolve upon the officer a vast responsibility in some cases, to say that he must notice at his peril that an act of the Legislature attempting to confer jurisdiction upon the courts is unconstitutional. But if the officer does not wish to assume all the hazard which such a rule of law imposes on him, he must require a bond of indemnity from the party for whom he is acting. It is further said that it was the duty of the officer to obey the mandate of the warrant and seize the identical steamboat which he did attach, and that he had no alternative but to obey. If the act which the writ commanded

him to do was a trespass, he was not required to perform it. Nor would he be liable in that case to the plaintiff for refusing to execute a process void for want of jurisdiction.1

WEST V. CABELL.

(153 U. S. 78.- - 1894.)

GRAY, J. This was an action upon a marshal's bond, in the usual form, the condition of which was that the marshal, by himself and his deputies, should faithfully perform all the duties of his office, and upon which any person injured by a breach of the condition might maintain an action. (Rev. St. § 783, 784; Lammon v. Feusier, 111 U. S. 17; 4 Sup. Ct. 286.) The breach relied on by Vandy M. West, the plaintiff in this case, was his arrest, against his protest, by a deputy of the marshal, under a warrant issued by a commissioner, commanding the arrest of James West, and not otherwise designating or describing the person to be arrested, upon a complaint of the deputy marshal charging James West with the murder of John Cameron. The defence was that the arrest of the plaintiff under that warrant was lawful. At the trial it appeared that the plaintiff had never been known or called by the name of James West, or by any other name than his own; notwithstanding which, the court, against the objections and exceptions of the plaintiff, admitted oral testimony of the commissioner and of the deputy marshal that the warrant was issued and intended for the arrest of the plaintiff, and instructed the jury that, if they believed that the plaintiff was the man for whose arrest the commissioner issued the warrant, the defendants were not liable for damages on account of the mere fact of arrest.

1Cf. Buck v. Colbath, 3 Wall. 334; Elder v. Morrison, 10 Wend. 128; Firestone v. Rice, 71 Mich. 377.

For liability of military and naval officers see Wilson v. MacKenzie, 7 Hill. (N. Y.) 95; Weatherspoon v. Woodby, 5 Cold. (Tenn.) 149. For liability of sergeant at arms and similar officers, see 1 Pol. Sc. Q. 85; Kilbourn v. Thompson, 103 U. S. 168; People ex rel. McDonald v. Keeler, 99 N. Y. 463.

By the common law, a warrant for the arrest of a person charged with crime must truly name him, or describe him sufficiently to identify him. If it does not, the officer making the arrest is liable to an action for false imprisonment; and if, in attempting to make the arrest, the officer is killed, this is only manslaughter in the person whose liberty is invaded. (1 Hale, P. C. 577, 580; 2 Hale, P. C. 112, 114; Fost. Crown Law, 312; 1 East, P. C. 310; 1 Chit. Cr. Law, 39, 40; Huckle v. Money, 2 Wils. 205; Money v. Leach, 3 Burrows, 1742, 1766, 1767, 1 W. Bl. 555, 561, 562; Rex v. Hood, 1 Moody, Crown Cas. 281; Hoye v. Bush, 1 Man. & G. 775, 2 Scott, N. R. 86.) Likewise, a warrant of arrest in a civil action, which does not name or describe the person to be arrested, is no justification of the officer. (Cole v. Hindson, 6 Term R. 234; Shadgett v. Clipson, 8 East, 328; Finch v. Cocken, 2 Comp. M. & R. 196, 1 Gale, 130, and 3 Dowl. 678; Kelly v. Lawrence, 3 Hurl. & C. 1.)

The principle of the common law, by which warrants of arrest, in cases criminal or civil, must specifically name or describe the person to be arrested, has been affirmed in the American constitutions; and by the great weight of authority in this country, a warrant that does not do so will not justify the officer in making the arrest. (Com. v. Crotty, 10 Allen, 403; Griswold v. Sedgwick, 6 Cow. 456, 1 Wend. 126; Mead v. Haws, 7 Cow. 332; Holley v. Mix, 3 Wend. 350, 354; Scott v. Ely, 4 Wend. 555; Gurnsey v. Lovell, 9 Wend. 319; Melvin v. Fisher, 8 N. H. 407; Clark v. Bragdon, 37 N. H. 562, 565; Johnston v. Riley, 13 Ga. 97, 137; Scheer v. Keown, 29 Wis. 586; Rafferty v. People, 69 Ill. 111.)

In Com. v. Crotty, for instance, in which Morris Crotty and others were indicted and convicted for a riot in resisting the arrest of Crotty upon a warrant commanding the arrest of "John Doe or Richard Roe, whose other or true name is to your complainant unknown," the conviction was set aside by the Supreme Judicial Court of Massachusetts, upon the grounds that the warrant was insufficient, illegal and void, because it did not contain Crotty's name, nor any description or designation by which he could be known and identified as the person against whom it was issued, and was, in effect, a general warrant, upon which any other person might as well have been arrested, as

being included in the description; and that: "The warrant being defective and void on its face, the officer had no right to arrest the person on whom he attempted to serve it. He acted without warrant, and was a trespasser. The defendant whom he sought to arrest had a right to resist by force, using no more than was necessary to resist the unlawful acts of the officer. An officer who acts under a void precept, and a person doing the same act who is not an officer, stand on the same footing; and any third person may lawfully interfere to prevent an arrest under a void warrant, doing no more than is necessary for that purpose." (10 Allen, 404, 405.)

The fourth article of amendment of the Constitution of the United States declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The provision of section 1014 of the Revised Statutes, which authorizes an offender against the laws of the United States to be arrested and imprisoned or bailed by a judge of the United States or a commissioner of the Circuit Court in any State where the offender may be found, "and agreeably to the usual mode of process against offenders in such State," is necessarily subordinate to the declaration of the Constitution that all warrants must particularly describe the person to be seized.

In the case at bar, the effect of the rulings and instructions of the court was to give the jury to understand that the private intention of the magistrate was a sufficient substitute for the constitutional requirement of a particular description in the warrant. For this reason the judgment is reversed, and the case remanded, with directions to set aside the verdict, and to order a new trial.

HERITAGE V. DODGE.

(64 N. H. 297.-1886.)

TRESPASS for assault and battery.

The plaintiff requested the following instruction: "If the jury find that the plaintiff could not help coughing by reason of a chin-cough, then the defendant was not justified in punishing him, although the defendant believed that the plaintiff coughed for the purpose of defying his authority and disobeying the rules of the school." Refusal and exception. Verdict for defendant.

SMITH, J. The instructions requested made the defendant liable, without regard to the fact whether he exercised reasonable judgment and discretion in determining whether the plaintiff was guilty of intentional misconduct as a scholar. The law clothes the teacher, as it does the parent in whose place he stands, with power to enforce discipline by the imposition of reasonable corporal punishment. . . . He is not required to be infallible in his judgment. He is the judge to determine when and to what extent correction is necessary; and like all others clothed with discretion, he cannot be made personally responsible for error in judgment when he has acted in good faith and without malice. Cooley, Const. Lim. 341; Cooley on Torts, 171, 172, 288; Lander v. Seaver, 32 Vt. 114; State v. Pendergrass, 2 Dev. & Bat. 365; Fitzgerald v. Northcote, 4 F. & F. 656; Reeve Dom. Rel. 288.

Exceptions overruled.

HEWELLETTE v. George.

(60 Miss. 703.1891.)

PLAINTIFF brought the action to recover for personal injuries inflicted by her mother.

WOODS, J. . . . This brings us next to the instructions of the