Vinton v. Weaver , 41 Me. 430 ( 1856 )

Appleton, J.

It was held in Gurney v. Tufts, 37 Maine, 130, that a magistrate’s warrant of commitment must show his authority for issuing it, and that, if it show the want of such authority, it affords no protection to an officer by whom an arrest may have been made. The warrant in that case was similar to the one under which the defendant Weaver has attempted to justify.

It is insisted that a distinction exists between the aids and servants of the officer, and the officer himself, and that, while it is conceded that the latter may be liable, the former should be exempted from liability. But such seems not to be regarded as the law. They must both stand or fall together. “Whenever,” remarks Savage, C. J., in Elder v. Morrison, 10 Wend. 138, “a sheriff or constable has power to execute process in a particular manner, his authority is a justification to himself and all who come to his aid; but if his authority is not sufficient to justify him, neither can it justify those who aid him. He has no power to command others to do an unlawful act; they are not bound to obey, neither by the common law nor the statute, and if they do obey, it is at their peril. They are bound to obey when his commands are lawful, otherwise not. The only hardship in the case is that they are bound to know the law. But that obligation is universal; ignorance is no excuse for any one. The counsel for the plaintiff in error insists that there is a difference between aiding in the original taking and in overcoming resistance. It seems there is no such distinction. If the taking was lawful, the resistance was unlawful; but if the taking was unlawful, the resistance was lawful. If the resistance was lawful, neither the officer, nor those he commands to assist him, can lawfully overcome that resistance.”

Exceptions overruled.

Tenney, C. J., and Hathaway and Goodenow, J. J., concurred. Rice, J., did not sit.