¶1It is unnecessary to determine in this case, whether the warrant of arrest was void, though we are inclined to the opinion that it was not. The complaint was sufficient; and the warrant was to answer “ to the complaint of Garrett Pbeeland, of said county,” and the offense is charged to *541have been committed in the house of complainant (and occupied by him). This, together with the venue in the margin, might, perhaps, be considered equivalent to charging the offense as committed in said county. But we give no definite opinion upon this point, as the case does not call for it.
¶2Nor is it necessary to determine whether the judgment of the justice was void, or only voidable; since, if it was in all respects valid, it did not authorize the warrant of commitment. The judgment (or what is claimed to be a judgment) was that the defendant pay a fine of five dollars within one hour, or be imprisoned in the county jail for the term of ten days, or till otherwise discharged according to law.
¶3The commitment recites a judgment for the payment of five dollars fine, or imprisonment until the fine should be paid, or he be discharged by due course of law: and the command for the imprisonment is in accordance with this recital. The judgment proved was for imprisonment for a definite time, ten days, or till otherwise discharged, &c. The commitment purports to be founded on a judgment of imprisonment for an indefinite period of time, and commands the imprisonment for an indefinite time.
¶4The period of imprisonment, under the judgment proved, could not have exceeded ten days. The imprisonment authorized by the commitment would be limited (if at all) by the period for which the justice had jurisdiction to punish for the offense, which, by the statute, is three months: — Comp. L. §8965.
¶5The commitment was therefore void. This was not a mere error of judgment in the performance of his judicial duties, such as an erroneous opinion or judgment on the trial of a cause of which he had jurisdiction. . It was a clear excess of jurisdiction, and that in the performance of a ministerial rather than a judicial act.
¶6We have been very reluctantly brought to this conclu*542sion, -as there does not appear, from the case as presented, any ground for suspecting that the defendant acted corruptly, or maliciously. From the facts disclosed, we should infer the contrary; that he acted with entire good faith; and that he erred only through mistake or ignorance, The imprisonment seems to have been very slight, and, for-aught that appears, well merited. But there may have been, or believed to be, something in the case which the record fails to show; and we would not lightly attribute to respectable counsel a willingness to aid in the prosecution of such a suit, where the expense of the litigation must far-exceed any damages he could expect to recover, unless it was believed that a corrupt or malicious motive could be shown.
¶7Actions of this kind, where the officer has acted in good faith, ought not to be encouraged; for though in strict law there may be, as in this case, a legal injury sufficient to constitute a cause of action, and to entitle the plaintiff to any actual damages he may have sustained by the imprisonment, however much he may have morally deserved it; and though the court can not protect the defendant from that liability without overturning well settled legal rules, yet, upon this hypothesis of the case, the plaintiff is, indebted for the support of his action to the imperfection of the law, its inability to deny the action without the sacrifice of that certainty in its rules which is essential to, its general utility. It is quite apparent that “the utmost, strictness of the law, in such cases, is not justice.”
¶8The judgment must be reversed, and a new trial ordered,