[Volume 5, Page 240]
Grumon v. Raymond1 Conn. 40 1814
Reeve, Ch. J. That this warrant was such as no justice ought to have issued will be admitted; for it is not only a warrant to search for stolen goods supposed to be concealed in a particular place, but it is a warrant to search all suspected places, stores, shops and barns in Wilton. Where those suspected places were in Wilton is not pointed out, or by whom suspected: so that all the dwelling-houses and out-houses within the town of Wilton were by this warrant made liable to search. The officer also was directed to search suspected persons, and arrest them. By whom they were suspected, whether by the justice, the officer, or complainant, is not mentioned; so that every citizen of the United States within the jurisdiction of the justice to try for theft, was liable to be arrested and carried before the justice for trial. The warrant was this: Search every house, store or barn within the town of Wilton, that is suspected of having certain bags concealed in it, said to be stolen, and all persons who are suspected of having stolen them. This is a general search-warrant, which has always been determined to be illegal, not only in cases of searching for stolen goods, but in all other cases.
In all the history of legal proceedings there is no such warrant to be found as to arrest all suspected persons; for in those general warrants issued by Lord Halifax, as secretary of state, in search of libels, the persons to be arrested were pointed out in every warrant; but is was to ransack a man's house, and to bring all his books, papers, &c. before Lord Halifax. A number of suits were brought against those employed by Lord Halifax for having executed these warrants; and in every instance, the plaintiff prevailed, and recovered exemplary damages, by verdicts of the jury; which verdicts were approbated by the court; for in all the applications for new trials, they refused them.
It cannot be said, that those cases differed from the present one; that in this case the justice had jurisdiction over theft, and might issue a proper warrant in the case; and having issued an improper one, it is only an error in judgment respecting a subject over which he has jurisdiction, and therefore he cannot be accountable; but that Lord Halifax, as secretary of state, had no jurisdiction over the subject matter. This is not the case. A secretary of state has power to commit for treason and seditious libels upon a proper warrant. Rex v. Kendall and Row, Skinn. 596. S. C. 1 Salk 347. S. C. 1 Ld. Raym. 65. Rex v. Wyndham, 1 Stra. 2. Searche's case, 1 Leon. 70. pl. 93. Yaxley's case, Carth. 291. Hellyard's case, 2 Leon. 175. pl. 213. 2 Hawk. P. C. c. 16. s. 4. And this doctrine was held to be correct by the court who tried the cases. 2 Wils. 288. The ground on which the defendants were held liable was not that the secretary had no jurisdiction in case of libels against the government, but that he had no jurisdiction to issue such a process; for there must be not only a jurisdiction [Volume 5, Page 241] of the subject matter, but also a jurisdiction of the process. This point was expressly determined in the case of Martin v. Marshall and Key, Hob. 63. In a case tried by the mayor of York, the action brought was trespass vi et armis. The mayor of York was judge of a court of limited jurisdiction, and issued a process which was illegal. Though he had full jurisdiction over the subject matter tried, yet the court held him liable; for, say the court, the judge had a limited jurisdiction of the subject matter, but had no jurisdiction of such process as was issued. This doctrine was recognized as correct in Perkin v. Proctor & al. 2 Wils. 386. where the court say, there must be jurisdiction of the process as well as of the person and cause.
In the principal case, the law knows of no such process as one to arrest all suspected persons, and bring them before a court for trial. It is an idea not to be endured for a moment. It would open a door for the gratification of the most malignant passions, if such process issued by a magistrate should skreen him from damages.
As there is no such process known to the law as the record presents, no person could be arrested under it. The case, then, stands on no better ground than it would if there had been no process, and a verbal direction had been given to arrest all suspected persons, and bring them before the justice. But the magistrate who issued a verbal process to arrest was held liable in trespass; and this is recognized as good law in 2 Wils. 386.
Should it be asked, if a justice issues a warrant which has some defect in it, so that the person arrested cannot be held by it, is the justice liable? I answer, he is not, if he aims at issuing a process which the law recognizes, and fails though some oversight or mistake. If he should attempt to issue an attachment against the goods, estate or person of a debtor, and direct the officer for want of property to take the debtor, and him have before the court &c., and it should be so defective as to abate, the justice would not be liable; for he had jurisdiction over that kind of process which he issued. But if he should direct the officer, for want of property, to take the body of the debtor, and put him in irons, and confine him in Newgate, he would be liable; for the law knows of no such process.
Where there is a want of jurisdiction over the persons, as in the Marshalsea case, 10 Co. 70.; or over the cause, as if a justice should try a man for murder; or over the process, as in the case cited from Hobart; it is the same as though there was no court. It is coram non judice.
From the case of Entick v. Carrington, 2 Wils. 275. we have the opinion of the Chief Justice, that if a warrant which is against law be granted, such as no justice of the peace or other magistrate, high or low, has power to issue, the justice who issues and the officer who executes it are liable in an action of trespass. And no man can hesitate to say, that the law knows of no such warrant as one to arrest suspected persons without naming them, without any complaint, against any person, leaving it to the officer to suspect whom he pleases, or to arrest every person that any other person suspects.
But there is another point of light in which this subject may be viewed. The justice never had any jurisdiction of the subject matter. This purports to be a search-warrant for stolen goods; and the law requires, that before any justice can have power to issue a warrant in such case, certain requisites be complied with.
It is comparatively of modern date that such a warrant could, under any circumstances, issue. In the time of Lord Coke it could not be done. 4 Inst. 176, 7. But it is now allowed of under certain circumstances. There must be an oath by the applicant that he has had his goods stolen, and strongly suspects that they are concealed in such a place; and the warrant cannot give a direction to search any other place than the particular place pointed out.
By the complaint on record in writing, it does not appear, that any oath was made, that the bags were stolen; nor that any place was pointed out where they were concealed; both of which were necessary, and without them no warrant could issue.
But it is said, that from the warrant under the hand of the justice it appears, that there was an oath that the bags were stolen; and that they were concealed at Aaron Hyatt's, or some other place. It is true, the justice so says; but it will be remarked, that he says, "as will appear by the complaint;" and upon examination of that, there is no oath ever made that there was any felony, or any place pointed out where the stolen bags were supposed to be; so that the justice had no jurisdiction over the case so as to issue a search-warrant.
But admitting that the warrant under the hand of the justice presents to us correctly the facts, it will not help the defendants; for there is no place pointed out, only at Aaron Hyatt's or somewhere else, which is equivalent to saying, that they were somewhere concealed. This would not be sufficient to warrant the issuing of a search-warrant.
If it should be contended, that it would authorize the issuing of a warrant to search Aaron Hyatt's, yet it laid no foundation to search any other place, for no other place is mentioned; and notwithstanding this, the warrant directs all suspected places in Wilton to be searched, whether houses, barns or stores; and under a warrant so issued the plaintiff was arrested.
It is no uncommon thing where there is a court of limited jurisdiction, that their jurisdiction depends upon the existence of certain things, and for want of these the court has no jurisdiction; and every thing done by the court, where these are wanting, is coram non judice; and the judge and officer are, in such case, liable in trespass to any person who may be arrested by a warrant issuing from the court.
There is a notable case in 2 Stra. 993. which fully establishes this doctrine. It is the case of Smith v. Bouchier and others, viz. the vice-chancellor of the university of Oxford, the judge, gaoler and party. The question arose upon a custom, that a plaintiff making oath that he has a personal action against any person within the precincts of the university, and that he believes the defendant will not appear, but run away, the judge may award a warrant to arrest him, and detain him until security is given for answering the complaint. On the 7th of August 1731, the defendant Bouchier, having the privilege of the university, made a complaint to the defendant Shippen, the vice-chancellor, of a personal action against the plaintiff Smith, to his damage [Volume 5, Page 242] 1000l., according to his estimation, and that he suspected that the plaintiff Smith would run away. He took his oath of and upon the truth of the premises; upon which a warrant was granted to the other defendants, who arrested Smith, and kept him in prison eight days for want of sureties.
Here, it will be observed, the requisite was, that the plaintiff should swear to his belief that the defendant would run away, whereas the oath was, that he suspected. The court held, that it was necessary, to give jurisdiction to the court, that he should swear to his belief; and because he did not, all that was done was coram non judice, and void. The vice-chancellor, judge, officer and party were, therefore, all held to be liable in an action of trespass and false imprisonment.
As in that case there was no jurisdiction without an oath that the plaintiff believed; so in this case there is no jurisdiction without an oath that the bags were concealed in some specific place. As there was no such oath, the justice had no jurisdiction. This case is precisely in point.
When this case is viewed in either point of light, the case is with the plaintiff; for although the justice had jurisdiction of the subject matter of theft, yet he had no jurisdiction over such a process. It was unknown in law and illegal, and could not be issued by any magistrate high or low, as is expressed by Lord Camden, without making that magistrate liable, provided any person was arrested under it.
As to the warrant to search for stolen goods; this could in no case be issued, unless certain requisites had been observed, which were not observed in this case, and of course the justice had no jurisdiction in the case.
The justice, therefore, was liable to this action, and the officer also who executed it; for although an officer is not always liable when he executes an improper warrant; yet this is in a case where it does not appear on the face of the warrant that it is illegal. It may, for any thing that the officer can discover, be legal; and in such case, it is his duty to obey, and to presume that it is lawful. But an officer is bound to know the law; and when the warrant, on the face of it, appears to be illegal, and he executes it, he is liable to the person arrested. Such was the present case.
© 1987 by The University of Chicago