to any act of official misbehavior punishable by law as an offense against the State. The law-making power has seen fit to prescribe an authoritative definition of the term as applicable to county officers, and this definition is conclusive upon the courts. It is prescribed in the Revised Statutes as follows: "All convictions, by a petit jury, of any county officers for any felony, or for any misdemeanor involving official misconduct, shall work an immediate removal from office of the officer so convicted, and such judgment of conviction shall, in every instance, embody within it an order removing such officers."2 By "official misconduct," as used in this title with reference to county officers, is meant any unlawful behavior in relation to the duties of his office, willful in its character, of any officer intrusted in any manner with the administration of justice or the execution of the laws; and under this head of official misconduct are included any willful or corrupt failure, refusal, or neglect of an officer to perform any duty enjoined on him by law." This legislative construction of the Constitution evidently implies that every official shortcoming upon the part of a county officer shall not be visited with the heavy penalty of removal, and that only such acts as involve moral turpitude, or willful negligence which borders closely upon the former, shall cause the officer to be condemned as unworthy of public confidence as a repository of a public trust. The refusal, or failure, or neglect of the officer must be either willful or corrupt, before the State is entitled to his removal upon conviction of a misdemeanor, and not a mere act of negligence or inadvertence, which may comport with honesty on his part and a reasonable desire to properly discharge the functions of his office. It is noticeable that these elements must be found to exist even upon a direct proceeding, in the nature of a civil action, having for its object the removal of a county officer; and certainly the same rule ought to obtain, at least to an equal extent, when the removal is an incident of another proceeding which may or may not involve such removal, and the proceedings in which fail to inform a defendant that such is the object. The Legislature having defined "official misconduct," our conclusion is that such definition materially restricts the general signification of the term as used in the Constitution, even if it was so used in its common acceptation, of which there may be doubt, it being a phrase rather technical than otherwise, and thus limits the jurisdiction of the District Court to that class of misdemeanors which involve unlawful official behavior on the part of a county officer, willful or corrupt in its character, no matter whether it is an act or an omission. 1 Art. 3388. 2 Art. 3393. Apart from the fact that the definition of the term was devolved upon the Legislature as a duty, and that the right was also granted to add to the jurisdiction of the County Court, which, by necessary implication, involves the right to subtract from any other court of original jurisdiction,1 the reason underlying the provision conferring this particular jurisdiction upon the District Court seems to strengthen our conclusion. The power of removal of county judges, county attorneys, clerks of the District and County Courts, justices of the peace, constables, and other county officers, is conferred by the Constitution exclusively upon judges of the District Court, who are authorized to effect such removals in cases of incompetency, official misconduct, habitual drunkenness, or other causes defined by law.2 The framers of the Constitution contemplated further legislation regulating removals from office, and conferred an enlarged discretion upon the Legislature in the matter of prescribing causes for removal and the proper procedure in effecting them, limiting legislative action only in the matter of the tribunal which could decree a removal. Having located this jurisdiction in the district judge, who may exercise his powers in term-time, and having prescribed "official misconduct" as one of the causes of removal, leaving the definition of the term to be fixed by law, it was proper and essential to the harmony of the system that further jurisdiction of misdemeanors involving official misconduct should be vested in the District Court, in order to avoid circuity or multiplicity of action and enable the legislative department to enact, as it has done, that upon conviction of a misdemeanor involving official misconduct a public evil should be remedied at once by the displacement of one unworthy of public trust, without the necessity of a resort to some other proceeding in another tribunal. It was not the intention of the Constitution to burden the District Court with every possible act or omission of an officer for which the law fixed a penalty, the infliction of which would be fully adequate to the offense, and the commission of which may have been prompted by casual inadvertence instead of corrupt or willful design or negligence. The plea to the jurisdiction of the court should have been sustained and the cause transferred to the county court for trial. The remaining inquiry is already practically disposed of by the discussion of the question of jurisdiction. As before stated, this prosecution is based upon article two hundred and five of the Penal Code, and the substantial charge against appellant is that, as sheriff, he negligently permitted certain persons in his custody, charged with felonies. less than capital, to escape. This act does not amount to "official 1 Const. art. 5, sec. 22. 2 art. 5, sec. 24. misconduct," as defined by law; neither does the indictment charge willful negligence. A sheriff may be removed from office upon conviction for willfully permitting an escape, or he may be removed upon a proceeding, if his acts or omissions amount to willful negligence; but a conviction for negligently permitting an escape, unaccompanied with eorruption or willfulness, does not work a forfeiture of office. The judgment is reversed and the cause remanded. Reversed and remanded. RESISTING OFFICER-OFFICER MUST HAVE AUTHORITY FOR HIS ACT. UNITED STATES v. GAY. [2 Gall. 359.] In the United States Circuit Court, Massachusetts, 1815. G. was Indicted for Resisting a Customs Officer in his seizure of goods. Held, that if there was no probable cause for the seizure by the officer G. was not guilty. This was an indictment for resisting one Johnson, an inspector of the customs, in attempting to seize two casks of merchandise and some other articles of trifling value. The casks had been brought from Vermont, and were deposited in the store of Gay, at Cambridgeport, a short distance from Boston, to which place they were destined. There appeared to have been no attempt at concealment, or opposition to search. The casks were accompanied by an invoice, on which was written a certificate or passport from the collector of the District of Vermont. This invoice was produced and shown to Johnson, and the marks and numbers in it corresponded with those on the casks. Gay informed Johnson, that the casks were to be transported to Boston, and there delivered to a person, whose name and place of business he declared, and he offered that Johnson should accompany the merchandise, and ascertain at the custom-house the genuineness of the signature of the collector of Vermont. This offer Johnson refused and insisted upon a removal of the property to the custom-house in Boston. Gay, thereupon, placed the casks in a cart, they having before been rolled out from the store by Johnson, and sent them to Boston. The court called upon the district-attorney to show, that, upon these facts, there was probable cause of seizure. Blake, District-Attorney, contended, that the mere production of the invoice or passport did not bind the officer, who had no means of knowing whether it was genuine or not. That the merchandize, being on its way from Vermont, and such as must have been imported, might reasonably be presumed to have been imported from the British colonies, and as such to be liable to seizure. But the court were of opinion, that the facts were not such as to justify the officer in insisting upon a removal of the property to the custom-house in Boston, though it might have been reasonable, that the property should be placed in a neighboring store, until the genuineness of the certificate could be ascertained. STORY, J., directed the jury as follows: In order to maintain this indictment, it is necessary that the resistance or impediment to the inspector should be, while he was in the execution of the duties of his office. It is the duty of the inspector to make seizures of goods imported contrary to law, and if resisted in the act of making such seizure, or in securing the property seized, it is a case within the statute. But it is not the duty of the inspector to make any seizures at his arbitrary discretion. He can not lawfully seize goods, which have been lawfully imported, or which are liable to no reasonable suspicion of illegal importation. To justify him, it is not necessary to show, that the goods were liable to condemnation; but there must, at all events, be a probable cause for the seizure. Otherwise, the power of an inspector would be most arbitrary and mischievous. It is true, that the law vests him with a discretion, but it is a legal discretion; and he can not protect himself, if he acts wantonly and without probable cause, for he is then a mere trespasser, and not in the execution of the duties of his office. What constitutes probable cause for seizure is, when the facts are given, a mere question of law, on which the court ought to instruct the jury. It is not a mere question of fact, of which the jury are the sole judges; and, therefore, the court are bound to direct the jury, whether upon the facts, there be probable cause or not. In the present case, I am clearly of opinion, that there is no probable cause shown for the seizure; and that the defendant ought, upon this ground, to be acquitted. Verdict for the defendant. RESISTING OFFICER-OFFICER EXCEEDING HIS AUTHORITY. UNITED STATES v. SLAYMAKER. [4 Wash. C. C. 169.] In the United States Circuit Court, Pennsylvania, 1821. S. was Indicted for Resistance to the execution of a writ of habere facias possessionem. It appeared that the attempt to execute it was made after the return day. Held, that as such a writ can not be legally executed after the return day S. was not guilty. The writ Indictment for resisting the execution of a habere facias possessionem issued from this court returnable to the 11th of April, 1821. is set out in the indictment in hæc verba. It appeared in evidence, that an alias habere facias possessionem issued on the 4th of May last, returnable to the first day of the present term, upon a suggestion of the plaintiff, vicecomes non misit breve. The deputy marshal, to whom the writ was delivered to be executed, proved, that he was prevented by threats and demonstrations of violence from executing the writ; but he stated that the writ under which he acted was indorsed alias," nevtheless he believed the writ, which was returnable to April court last, was, from its appearance, the one which he was directed to execute. He further stated, that, under the first writ, the possession had been taken peaceably by another of the deputy marshals, and delivered to the plaintiff in the ejectment, who placed a tenant upon the land, but that the possession was afterwards abandoned. Upon this evidence, and before the case of the defendants was fully opened, the district attorney, with great candor, submitted to the court, whether the prosecution could be supported, expressing his unwillingness unnecessarily to consume the time of the court, if the opinion should be in the negative. He cited the following cases: Adams on Ejectment1 and 4 Wheaton.2 WASHINGTON, J. It was decided at the last session of this court, that the defendant could not rule the marshal to return the writ of habere facias possessionem, although the plaintiff may. The reason of the rule is, that it affords the plaintiff the best security for obtaining the full benefit of his judgment, by enabling him to renew the execution at his pleasure, until he has the full enjoyment of the possession. For if after he is put into possession, and the officer has departed, he is again turned out by the defendant, he may, upon a suggestion, vicecomes non misit breve, obtain an attachment, or sue out a new habere facias possessionem, so as to regain the possession. If he is |