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By the Court,

Lacy, J.

This is an action of trespass, vi el armis, and for false imprisonment. The defendants pleaded a special juslica-cation, and the only question for us to decide is, was the plea good? The validity or insufficiency of the plea, depends on the jurisdiction that the constitution and laws give the probate court. The facts are properly pleaded, and will bar the action, provided the probate court-had jurisdiction over the subject matter, upon which they proceeded to adjudicate. Upon an application supported by affidavit of Rachel Brown, as the administratrix of the estate of James S. Brown, the probate court issued its process, commanding the plaintiff in error, to come before that tribunal and disclose the evidences of debt in his possession belonging to the estate,, and this was the force and restraint complained of in the declaration, and justified by the defendants» By the 10th section of the 6th article of the constitution, it is declared that the probate court “shall have such jurisdiction in all matter» relative to the estates of deceased persons, executors, administrators, and guardians, as may be prescribed by law, until otherwise directed by the general assembly.” The acts organizing the probate courts and defining the powers of executors, and administrators, make it among their most important duties to preserve the estate of deceased persons, and to collect and take into possession the goods, chattels, moneys, books, papers, and evidences of debt belonging to the estate j and in aid of this power, the 47th section of the administration .law,, gives the probate court authority to issue process and compel the attendance of persons by attachment and imprisonment.

The true inquiry here is, was the process in this case, which was issued by the probate court, void or voidable? If the court had jurisdiction over the subject matter, although in the exercise of its power, it may have acted wrongfully; still its process and judgments, being improvident and illegal, are nevertheless voidable and not void. To charge a judge and those who act in obedience to his mandate, as usurpers and trespassers, he must have assumed an unwarrantable jurisdiction of the subject matter in dispute, and all his acts in such cases are but the acts of a private person, and bis process and judgments are coram. nonjudiee, and mere nullities. Being mere nullities, his acts are then considered as amounting to usurpation and oppression, and it is then but right and just to hold him answerable for such, criminal conduct. But the law, upon principles of policy, necessity and public justice, excuses him in his official capaciy, for mistakes or errors of judgment, upon the ground that human reason, however perfect aud exalted, is still frail and liable to be deceived. These principles, the authorities fully establish, and their application to the case under consideration clearly shows, that the probate court, both by the constitution and the laws, had unquestionable jurisdiction .over the subject matter; and that it was the duty of .the administratrix and. of the court, to see that the estate was taken care of, and its evidences of debt reduced into possession; and therefore the acts of the probate court are not void, and consequently neither the judge that issued the process, nor the sheriff that executed it, are trespassers or usurpers, and of course the demurrer to the plea was rightfully overruled.

Let the judgment be affirmed.

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