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ing by his order and in his aid, for any thing done in obedience (10) to any warrant under the hand or seal of any J. P. until demand has been made or left at the usual place of his abode, by the party intending to bring such action or by his attorney, in writing (11), signed by the party (12) demanding the same, of the perusal and copy of such warrant, and the same has been refused or neglected for six days after such demand: and, in case, after such demand and compliance therewith, any action be brought against such constable, &c. for any such cause as aforesaid, without making the J. P. who signed or sealed the warrant, defendant, on producing and proving such warrant at the trial, the jury shall give their verdict for the defendant, notwithstanding any defect of jurisdiction in such J. P.; and if such action be brought jointly
ing of the words “other officer” in this statute, and consequently entitled to the protection which it affords, when sued in those actions to which the statute extends, e. g. trespass, &c., but secus when sued in replevin, that being a proceeding not within the statute. See the preceding note.
(10) The officer must prove that he acted in obedience to the warrant, and where the J. P. cannot be liable, the officer is not entitled to the protection of the statute. Money v. Leach, 3 Burr. 1766. 1 Bl. R. 555. S. C. Milton v. Green, 5 East, 233. Bell v. Oakley, 2 M. and S. 259. The act was intended to make the justice liable instead of the officer; where, therefore, the officer makes such a mistake as will not make the justice liable, the officer cannot be excused. Hence, an officer executing a warrant of a justice of Norfolk at large, in the county of the city of Norwich, was held not to be justifiable. Coram Ld. Mansfield, C. J. Norfolk Ass. 1761. 1 Bl. R. 563. So where, under a warrant to take up loose and disorderly persons, the constable took up a woman of character. Dawson v. Clerk, Middlesex Sittings, 1 Bl. R. 563. So where the warrant was to take up the authors, printers, and publishers of a libel, and the officers took up persons who did not fall under any of those descriptions. Money v. Leach, 1 Bl. R. 555. 3 Burr. 1766. S. C. But if the officer act in obedience to the warrant, it is immaterial whether the warrant be legal or not. If the warrant direct the officer to seize “stolen goods," and he seizes goods which fall within the description contained in the warrant in other respects, although they turn out not to be stolen, he is still under the protection of the statute. Price v. Messenger, 2 Bos, and Pul. 158.
(11) A duplicate original of demand is sufficient evidence. Jory v. Orchard, 2 Bos. and Pul. 39.
(12) Demand, signed by attorney, is within the meaning of this section. Ib. per Buller, J.
against such J. P. and such constable, &c. then, on proof of such warrant, the jury shall find for such constable; &c. notwithstanding such defect of jurisdiction; and if the verdict be given against the J. P., the plaintiff shall recover his costs against him, to be taxed in such manner as to include the costs which the plaintiff is liable to pay to the defendant for whom such verdict is found (13).
S. 7.—“Where plaintiff in any such action against any J. P. obtains a verdict, he shall be entitled to double costs, if the judge (before whom the cause is tried) in open court will certify, on the back of the record, that the injury, for which such action was brought, was wilfully and maliciously committed.” This enactment relates only to the costs incurred in the ordinary course of law; per Taunton, J. Thomas v. Saunders, 1 Ad. & Ell. 553.
S. 8.—“No action shall be brought against any J. P. for any thing done in the execution of his office, or against any constable, &c. acting as aforesaid (14), unless commenced within six calendar months after the act committed (15).”
(13) A similar protection is extended to messengers acting in obedience to warrants of commissioners of bankrupt, by stat. 6 Geo. 4. c. 16. s. 31. which see post. tit. Trespass, Process.
(14) Acting as aforesaid,” that is, under the warrant of a magistrate. If, therefore, a constable acts without a warrant, this statute does not apply, and the action against such constable may be brought after the expiration of six calendar months, and at any time within the period allowed by the statute of limitations, 21 Jac. 1. c. 16. Postlethwaite v. Gibson, Middx. Sittings after M. T. 41 G. 3. Kenyon, C. J. MSS. and 3 Esp. 226. S. C. In Parton v. Williams, 3 B. and A. 330, where a constable acting under a warrant commanding him to take the goods of A. took the goods of B., it was holden, that the constable not having acted in obedience to the warrant, which directed him to take the goods of A. the magistrate could not be responsible: and therefore there was not any necessity for demanding a copy of the warrant. So where under a warrant against the goods of A. the defendant, an overseer, took goods, already in the hands of the bailiff of A.'s landlord as a distress for rent. Kay v. Grover, 7 Bingh. 312. See Smith v. Wiltshire, 2 B. & B. 619. A perusal and copy
of the warrant need not be demanded, where the officer does not act within his jurisdiction in obedience to the warrant; per Parke, B. Gladwell v. Blake, 5 Tyrw. 194. 1 Cr. M. & R. 645.
(15) If a man be imprisoned by a warrant of J. P. on the 1st day of January, and kept in prison till the 1st day of February, he may bring his action within six months after the first of February, for the
For the further protection of magistrates it is enacted, by stat. 43 G. 3. c. 141, that in all actions brought against any J.P., on account of any conviction made, by virtue of any
act of parliament, or by reason of any thing done, or commanded to be done, by such J. P., for the levying of any penalty, apprehending any party, or for or about the carrying such conviction into effect, in case such conviction shall have been quashed, the plaintiff, in such action, (besides the value and amount of the penalty, which may have been levied upon the plaintiff, in case any levy thereof shall have been made, shall not be entitled to recover any more or greater damages than the sum of two-pence, nor any costs of suit, unless it shall be expressly alleged in the declaration in the action wherein the recovery shall be had, and which shall be in an action upon the case only, that such acts were done maliciously, and without any reasonable and probable cause. Sect. 2.-And further, that such plaintiff shall not be entitled to recover against such justice any penalty which shall have been levied, nor any damages or costs, in case such justice shall prove at the trial, that such plaintiff was guilty of the offence whereof he hath been convicted, or on account of which he hath been apprehended, or had otherwise suffered, and that he had undergone no greater punishment than was assigned by law for such offence. This statute applies to those cases only where there has been a conviction
III. Of the Pleadings.
Money cannot be paid into court in this action: See stat. 3 & 4 W. 4. c. 42. s. 21. The general issue to
o Massey v. Johnson, 12 East, 67.
whole is one entire trespass. Pickersgill v. Palmer, Bull. N. P. 24. In Hardy v. Ryle, 9 B. and C. 609, the question was moved, whether the last day of the imprisonment was to be considered as inclusive or exclusive. The month's imprisonment terminated on 14th December, and the writ was sued out on the 14th June following; it was holden that the 14th December ought to be excluded in computing the six months, and consequently the action was commenced in due time,
an action for false imprisonment is, not guilty. By stat. 7 Jac. 1. c. 5. (made perpetual by 21 Jac. l. č. 12.) in an action upon the case, trespass, battery, or false imprisonment, against a J. P., mayor, bailiff
, constable, &c. for any thing done by virtue of their offices, or against any other persons acting in their aid, and by their command, concerning their offices, the defendant may plead the general issue, and give the special matter in evidence. In other cases, matter of justification must be pleaded specially. Every plea of justification must admit the trespass. To an action for false imprisonment brought by A. against B., C., and D.P, they pleaded a plea of justification, under process, wherein B. said, that he, as attorney, for the plaintiff in the original action, delivered the warrant made by the sheriff upon the process to C. and D. as his bailiffs, to be executed in due form of law, and that C. and D. thereupon arrested the plaintiff A., and detained him in prison. This was holden to be a sufficient admission by B. of the trespass, for the purpose of his justification; for he who commands or directs another to do a trespass is guilty of the trespass, if done by the other person pursuant to his direction. To trespass for false imprisonment, the defendant may plead that he did it by lawful authority. It is a general rule of pleading, that where a party justifies a trespass under an authority given, he must shew that authorityy. There is a difference, however, in this respect, where the justification is under judicial process, between the party to the cause, or a mere stranger, and the officer who executes the process of the court. The party to the cause, or mere stranger, must set forth in their plea the judgment", as well as the writ; but the officer need only shew the writs (16) under which he acted, for he is bound
p Rowe v. Tutte, Willes, 14.
3 Mod. 137. Carth. 73. S. C.
Per Holt, C. J. Britton v. Cole,
Carth. 443. s Turner v. Felgate, 1 Lev.95. Cotes
v. Michill, 3 Lev. 20.
(16) Where final process issues, a return is not necessary (Hoe's case, 5 Rep. 90.); consequently it is not necessary to allege that such process was returned. (Rowland v. Veale, Cowp. 18. recognized in Cheasely v. Barnes, 10 East, 73. but there said by Lord Ellenborough, C. J. that if any ulterior process in execution is to be resorted to, to complete the justification, there it may be necessary to shew to the court the return of the prior writ, in order to warrant the issuing of the other.) But an officer who justifies under process, which he ought to return (and all mesne process ought to be reto execute the process of the court, having competent jurisdiction, without inquiring after the judgment. And it is to be observed, that where the party to the cause and the officer join in pleading, the plea must contain all the requisites which would be necessary in case they had pleaded separatelyt; for it is a general rule, that where two or more join in a defence, although the justification may be sufficient for one or more, yet if it be not sufficient for the rest, it will be bad as to all the defendants. Such are the rules of pleading, where the justification is founded on process out of the superior courts: but in justifying under process issuing out of inferior courts, greater strictness is required"; as, 1. The nature and extent of the jurisdiction of the court below ought to be set forth (17); for the judges of the superior courts are not bound to take cognisance of it. N. This rule holds even in justifications by officers. 2. It ought to be stated, that the cause of action below arose within the jurisdiction of the court below; on this point, indeed, there has been a diversity of opinion; for in Gwynne v. Poole and others, Lutw. 935. it was holden, that a justification by the party, judge, and officer, to whom the process was directed, was good, although it did not state that the cause of action below arose within the jurisdiction of the court below: but in Moravia v. Sloper and others, Willes, 30. (where Willes C. J. controverts with great ability the reasoning of Powell, J. in Gwynne v. Poole,) the propriety of this decision was questioned, and it was ruled, that although it might not be necessary for the officers (18) of the court below to make this
t Phillips v. Biron, Str. 509. Smith
v. Boucher, Str. 994. Middleton v. Price, Str. 1184.
u Moravia v. Sloper, Willes, 37. re
cognized by Lawrence J. in Evans v. Munkley, 4 Taunt. 50.
is of one
turned) must shew that such process was returned. Middleton v. Price, Str. 1184. “There is a difference, however, between the principal officer, to whom the writ is directed, and a subordinate officer; the former shall not justify under the process, unless he has obeyed the order of the court in returning it; otherwise who has not the power to procure a return to be made." Per Holt, C. J. in Freeman v. Blewett, L. Raym. 633, 634.
(17) It is not necessary, however, to make a profert of the letters patent by which the court is erected. Titley v. Focall, Willes, 689.
(18) But see Morse v. James, Willes, 128, where it was holden, that though an officer need not set forth the proceedings at length, and though he may justify under an erroneous process, yet it must