Campbell vs. Sherman. certainly reason and authority for holding that an officer who executes a process fair upon its face, shall be protected. But a clear distinction exists between that case and a proceeding in which the process itself shows that the court has exceeded its jurisdiction. The rule is stated by Mr. Justice SMITH in Bognall v. Ableman, 4 Wis., 163, in the following language: "When the process is fair on its face, and issued by a court or magis. trate of competent jurisdiction, it is a protection to the officer. But if it be not fair and regular upon its face, or its recitals or commands show a want or excess of jurisdiction in the court or magistrate issuing it, the officer is not protected in its execu tion." p. 179. The form of the warrant issued in the present case is not set forth in the answer. But it was undoubtedly such a process as the clerk was required to issue upon the filing of the complaint, and it would show upon its face that it was issued in a proceeding instituted under the provisions of ch. 184. It would command the officer to attach and seize the steamer Ida Campbell, her tackle, apparel and furniture, if found within his county, and safely keep the same to answer all such liens as should be established against it in favor of the plaintiff in the cause. It would properly contain recitals showing that a complaint had been filed with the clerk, and state the nature and amount of the demand for which a lien was claimed against the vessel. We must presume from the matters stated in the answer, that such was the form of the warrant under which the officer acted; and furthermore a process setting forth these facts would be required by the law under which the proceeding was taken. And it is very apparent that such a warrant would show upon its face the nature of the proceeding, and that the suit was instituted to enforce a maritime lien. In other words, it would show that the circuit court had no jurisdiction of the subject matter of the action, and no power to hear and determine it. And we understand the rule to be, that where the process does thus show a want of jurisdiction in the court Campbell vs. Sherman. of the subject matter of the action, it is void, and does not protect the officer. In this all the cases agree. But it is said that this rule imposed upon the officer in the present case the duty of determining, in advance of any decis ion of the courts of this state, the validity of an act of the legislature. How can it be expected, it is asked, that a mere ministerial officer could decide such a question, and thus find out that his process was void for want of jurisdiction in the court which issued it? The maxim ignorantia juris non excusat -ignorance of the law, which every man is presumed to know, does not afford excuse-in its application to human affairs, frequently operates harshly; and yet it is manifest that if ignorance of the law were a ground of exemption, the administration of justice would be arrested, and society could not exist. For in every case ignorance of the law would be alleged. And consequently the answer must be given in this case, that the ignorance of the officer is of the law, and the rule is almost without an exception, that this does not excuse. It may devolve upon the officer a vast responsibility in some cases, to say that he must notice at his peril that an act of the legislature attempting to confer jurisdiction upon the courts is unconstitutional. But if the officer does not wish to assume all the hazard which such a rule of law imposes on him, he must require a bond of indemnity from the party for whom he is acting. It is further said that it was the duty of the officer to obey the mandate of the warrant and seize the identical steamboat which he did attach, and that he had no alternative but to obey. If the act which the writ commanded him to do wast a trespass, he was not required to perform it. Nor would he be liable in that case to the plaintiff for refusing to execute a process void for want of jurisdiction. We have examined the authorities cited on the brief of counsel for the defendant, but we find nothing in them inconsistent with the views above expressed. Young vs. French. The conclusion which we have reached is, that the answer does not state a defense to the action, and that the demurrer to it should have been sustained. By the Court. The order of the circuit court is reversed, and the cause remanded for further proceedings according to law. YOUNG VS. FRENCH. (1–3) Statute oF FRAUDS: Promise of one person to answer for debt of another. (4) Laborer's lien on logs. 1. The promise of one person, though in form to answer for the still subsisting debt of another, if founded upon a new and sufficient consideration, moving from the creditor and promisee to the promisor, and beneficial to the latter, is not within the statute of frauds. 2. M., B. & Co. put all their personal property, and the use and control of their mill and other real estate, into the hands of F., with power to saw up their stock of logs, dispose of the lumber made therefrom, and apply the proceeds to the payment of their debts, in a certain order; as compensation for which F. was to have a certain per cent. age of all moneys received and paid out, such commission to be first paid out of the lumber so manufactured and sold. Y., holding a due bill of M., B. & Co. for several hundred dollars, claimed to be due him for labor done in getting out their logs, was about to commence proceedings to enforce a laborer's lieu on the logs, when F., to secure a relinquishment of such proceedings, made the following indorsement on said due bill: "This amount to be paid to Y. on or before Nov. 15, 1870. (Signed) F., Agent of M., B. & Co." The jury also find, upon conflicting oral evidence, that F. at the same time agreed to become personally responsible for said claim, and to pay it on the day named in said indorsement; and that by such indorsement and promise Y. was prevented from taking, within the time limited, the necessary proceedings to enforce his lien. Held, that such oral promise of F. was valid, and not within the statute of frauds. 3. Whether the labor performed by Y., and for which such due bill was given, was such as entitled him in fact to a lien on the logs, need not here be decided; it appearing that F. treated with him on the assump Young vs. French. tion that he had such a lien, and chose to buy him off rather than contest its validity. 4. Plaintiff having been employed for that purpose by M., B. & Co., and having performed services as a cook for the workmen engaged in getting out their logs, it seems that he was entitled to a lien upon the logs for the amount due him for such services. Tay. Stats., 1768, § 25. APPEAL from the Circuit Court for Dunn County. The following statement of facts in this case was originally prepared by Mr. Justice COLE as a part of his opinion: "The firm of McGilton, Bracklin & Co., being largely in debt, with the consent of a portion of their creditors, made an agreement with the defendant in writing, by which they put their entire personal property, and the use and control of their mill and other real estate, into the possession of the defendant, with the power to saw up their stock of logs, and to dispose of the lumber manufactured to the best advantage, the proceeds of the property to be applied in the payment of their debts in the order therein named. The plaintiff was not present, and did not consent to the arrangement. He was a creditor of the firm to the amount of $285.75, for work and labor rendered by him in getting out the logs, and held their due bill for that amount. By the written contract, it was agreed between the parties that the defendant should receive as compensation two and one-half per cent. on all moneys paid out by him, and a like per cent. on all moneys received, which commissions were to be treated as current expenses, and to be first paid out of the lumber manufactured and sold. The plaintiff was advised by one of the firm of McGilton, Bracklin & Co. to file a laborer's lien upon the logs which had gone into the possession of the defendant under the agreement, and he was about taking legal steps for that purpose, when the defendant persuaded him to relinquish his proceedings, and took the due bill and made upon it this indorsement: This amount to be paid to Wm. B. Young on or before Nov. 15th, 1870. S. B. FRENCH, Agent for McGilton, Bracklin & Co.'" 6 Young vs. French. The complaint alleges that defendant made this indorsement and delivered it to plaintiff, "in consideration that plaintiff would not enforce his said lien while defendant was in charge of said business;" that afterwards, and before the expiration of the time allowed plaintiff by law for filing his claim for a lien, defendant, upon the same consideration, again promised to pay him the amount so due him, with interest; and that, relying upon said promise, plaintiff neglected to take steps to assert and enforce his lien, etc. Judginent is therefore demanded against defendant for the amount of said due bill, with interest, etc. The answer denies that plaintiff was employed by McGilton, Bracklin & Co. in any other capacity than that of cook, and denies that he had by law any lien upon the logs of that firm for work done by him in that capacity. It also in effect denies that defendant ever undertook to pay the due bill in question otherwise than as the agent of McGilton, Bracklin & Co., and out of the proceeds of their property, in his hands, and alleges that in consequence of levies made by judgment creditors upon said property, he was left without means, as such agent, to pay plaintiff's demand. On the trial, Mr. Bracklin, of the firm of McGilton, Bracklin & Co., testified for the plaintiff, that he gave plaintiff the due bill on the day of its date, and advised him to file a lien upon the logs therein mentioned. "Mr. French advised him not to take any proceedings at all, and he would pay him. Mr. Young said he wanted some security besides the due bill, and asked defendant to give his individual note. I don't recollect whether defendant said anything in reply; he took the due bill, and wrote that [the indorsement] on the back of it. He then handed the due bill back to the plaintiff, and said that was just as good as his individual note." The plaintiff testified in his own behalf, that after receiving his due bill he stated in the presence of defendant that he was going to file a lien on the logs; that defendant advised him against it, and stated that VOL, XXXV.-8 |