Summary
On report upon agreed statement of facts.
Trespass, for taking and converting to the defendant’s own use three colts. The colts were taken by the defendant, then a deputy sheriff of the county of Somerset, April 21, 1883, and were sold by him by virtue of an execution issued on a decree for lien on the colts and for sale of the same, made at the Supreme Judicial Court for Somerset county, March term, 1883, on a petition for lien for keeping the colts, by Frank Lord of Ripley, in the county of Somerset, entered in said court December term, 1882. In that petition Charles F. Collins is alleged to be the owner of the animals, and in the decree and execution Charles F. Collins is stated to be the owner of the animals. The keeping of the colts by Frank Lord was by and with the consent of George W. Collins, plaintiff in the present suit. The plaintiff in this suit was the owner of the colts at the time they were taken by the defendant and sold. If this action can be maintained, judgment to be for the plaintiff and damages to be assessed by the jury, otherwise plaintiff to become nonsuit.
It is well settled that an officer is protected only when he proceeds under a precept regular on its face and issued from a tribunal having jurisdiction of the subject matter. Nowell v. Tripp, 61 Maine, 430, citing 14 Wallace, 613. See also Flsemore v. Longfellow, 76 Maine, 128 ; Wilmarth v. Burt, 7 Met. 259 ; Ciarle v. Ufa?/, 2 Gray, 413 ; Donahoe v. Shed, 8 Met. 326 ; Hilliard on Torts, 4th ed. vol. 2, p. 126. Now in this case these two necessary facts do not exist.
The petition was dated Nov. 22, 1882, and was to enforce a lien for feeding and sheltering the colts from and including the winter season of 1880-81, to the date of the petition. The case is the same which is referred to in Lord v. Collins, 76 Maine, 443.
The Supreme Judicial Court at that time had no jurisdiction of such liens. The remedy provided for innholders and keepers of boarding houses at that time was a sale at auction under chapter 99 of the public laws of 1876.
"Liens are in derogation of the common law and the court is not authorized to extend the law beyond the objects specifically provided for or enforce a remedy by statute except in accordance with the items thereof.” Lord v. Collins, 76 Maine, 444. His precept was issued by virtue of a proceeding not according to the course of the common law and although the court was one of general jurisdiction there was no presumption of jurisdiction. Prentiss v. Parks, 65 Maine, 562; Penobscot R. R. Co v. Weeks, 52 Maine, 456 ; Com. v. Blood, 97 Mass. 538 ; Morse v. Presby, 5 Foster, 302.
Everybody is bound to know the law and what is authorized. Vinton v. Weaver, 41 Maine, 430.
The execution was therefore illegal on its face and was issued by a court having no jurisdiction of the subject matter. Fisher v. McCirr & ais. 1 Gray, 45 ; Greene v. Briggs, 1 Curtis, C. C. E. 335 ; Com. v. Crotty, 10 Allen, 405; Smith v. Keniston, 100 Mass. 173.
"It is well settled that a warrant issuing from a court or magistrate having no jurisdiction of the case confers no authority on the officer who executes it.” Bowker v. Lowell, 49 Maine, 430, opinion of Judge Goodnow ; Hillard on Torts 4th ed. vol. 2, p. 125.
Every fact essential to the special jurisdiction must appear upon the record. 65 Maine, 562, and 52 Maine, 456.
" It is held that where the subject matter of the suit is not within the jurisdiction of a court all the proceedings are absolutely void and the officer is a trespasser.” Hillard on Torts, 4th ed. vol. 2, p. 130, sec. 3.
cited: Guptill v. Richardson, 62 Maine, 237 ; Gray v. Kimball, 42 Maine, 307; Horton v. Auchmoody, 7 Wend, 200; Fisher v. McGirr, 1 Gray, 1; State v. McNally, 34 Maine, 210; Gurney v. Tufts, 37 Maine, 130; Wilton Mffg Go. v. Butler, 34 Maine, 431.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
