CHITTENDEN, could not always be performed upon the instant of rendering the judgment. To adopt the rule contended for, would, in 1843. numerous instances, subject the efficacy of a judgment to the Chipman law of necessity, to the happening of accidental circumstances, and to the will and caprice of a ministerial officer. This decree, for all the purposes intended, was good when it was passed, and the record, when made up, had relation back to the passing of the decree. Judgment affirmed. v. Bates. JOHN CHIPMAN V. SETH BATES. In a plea of justification under a search warrant, it is not necessary to allege that the complaint was signed, or any minute made of the day, month and year when exhibited; or that any recognizance for cost was given, or that the warrant was returned; nor is it necessary to state the grounds of suspicion of the person praying out the warrant. If the officer enters the dwelling house of the person against whom the process issues, the door being open, and without doing any unnecessary damage, to execute the same, the owner of the house cannot maintain trespass against the party who prays out the process, although the goods were not found. Quere. Whether the party would be liable in such action, if the door had been forcibly broken open by the officer. THIS was an action of trespass in three counts, for breaking, and entering, the dwelling house of the plaintiff; to the last of which the defendant pleaded in bar, a justification under a search warrant, setting forth that he had been lawfully possessed of a certain ram, which had been stolen from him; that, upon his complaint, on oath, that he had reasonable, probable and sufficient cause to suspect and believe that said ram was by the plaintiff, knowing said ram to have been stolen, secreted in his dwelling house, a warrant was issued by a justice of the peace, directed to the constable of Essex, commanding him to enter said dwelling house in the day time and search for said ram; that the said constable, and the defendant as his servant, and by his command, in virtue of said warrant, in the day time, peaceably and quietly entered into the said dwelling house, and cellar of the plaintiff, the outer door thereof being then and there CHITTENDEN, open, in order to search for and find the said ram, so stolen January, 1843. as aforesaid, and for no other purpose whatever-doing no unnecessary damage to the plaintiff, nor creating unnecessary disturbance in said dwelling. Chipman v. Bates. To this plea there was a demurrer. The court adjudged the plea insufficient; to which the defendant excepted. C. D. Kasson, for defendant. The demurrer being general, the plea must stand or fall, as it shall be found good or bad in substance, without regard to its mere form. 1 Chit. Pl. 701-3. I. The objection that the cause or ground of the "belief" or "suspicion" is not stated, is one of form only. The substantive averment consists in this-that the defendant had "sufficient cause" &c., and it is for the jury to find, from the evidence, whether this be true. Davis v. Russell et al. 5 Bing. 354; 2 Ld. R. 1301; Beckwith v. Philly, 6 B. & C. 635; French v, Smith et al. 4 Vt. R. 366; 1 Chit. Pl. -713, 719, 722. Admitting it to be a compound of law and fact, it does not vary the case; for almost every proposition which is a bar to the action, consists of such a compound. Non est factum does not require the defendant to state the reason why it is not his deed. He may show it a forgery, or obtained by duress, or fraud. He may show a want of delivery, or any thing else, which, when proved, the law adjudges to amount to the proposition that it is not his deed. So of son assault demense; he need not allege the manner. And so of all other propositions which are a bar to the action. In an action for malicious prosecution, the defendant may simply traverse the "probable cause." All those cases wherein the contrary doctrine has seemingly been holden, were actions for false imprisonment, where the arrest was made without lawful warrant. But no case is to be found, where, when the proceeding was had under the authority of the law, as here, the defendant was ever bound to set out the evidence, which tends to prove the fact of "probable cause." The law has reposed in the magistrate the power to de 1843. Chipman Batas. cide upon the cause for issuing a warrant. He has decided; CHITTENDEN, January, and this court cannot, in this collateral manner, call in question that decision. The only question is-had the defendant cause for making the complaint? If this be not so; if the court can claim to have all the complex circumstances spread upon the record for their decision, it would oust the defendant of his trial by jury; it would leave the court to decide upon the weight and force of each circumstance in evidence, in proving the "probable cause," which is clearly the province of a jury. French v. Smith, 4 Vt. R. 366; 1 Chit. Pl. 258. It would be impracticable to state the ground of suspicion. The cause of it is often of such a nature as to preclude the spreading of it on the record; or such as to make it too prolix. Public rumour, and the source of it; words spoken by particular individuals, and the relation they bear to the parties; the mode of expression; hints; ironical or satirical remarks,and their circumstances; looks; vague surmises; winks, nods, and other obliquities and their occasions are but a few of the means of insinuation, which may or may not, as circumstances shall indicate, induce belief and justify prompt action; and which it would be impossible to give an idea of to the court. 1 Chit. Pl. 262, 270, 567. (n. 2.) II. The remaining and main question is, whether with "sufficient cause of suspicion" a search warrant, in due form, is a justification of a party, in entering the house unless he find the property? 1. The court will observe, that the plea shows a felony had been committed: and this will dispose of a large class of cases which may seem to militate against our position, and which I shall not again notice. Whatever the common law might have been, anciently, we contend, that, by virtue of Art. IX. of the declaration of rights in the constitution of Vermont, and also the 4th Art. Amend. Con. U. S., together with our state legislation on the same subject, (Rev. Stat. Vt. p. 177) the common law, if it ever existed to the contrary, is unqualifiedly abolished. 2. It is a curious fact, that while most elementary writers lay down the law in the negative of the proposition, not a single adjudged case is to be found to support their dicta; and 2d, that all later writers refer to Lord Hale as their au CHITTENDEN, thority, Hal. P. C., and he cites some Mss. in the time of January, 1843. Hen. 2d. This is the evidence of what the common law was. Chipman v. Bates. Since that time, either Parliament has enacted some statute to remedy the evil, or else that is not considered the law now, or we should find some cases of less remote antiquity. The later cases, what we do find, seem to indicate that the English courts are, whatever might have been the law, inclined to make it conform to the advancing civilization. In Samuel v. Payne, Doug. 260, the goods were not found, and the court held ultimately, that if a felony had been committed, it would, with probable cause, justify the complainant in arresting; but as to all but him the mere charging of the felony whether true or false was sufficient. This doctrine is since recognized in Davis v. Russell, 5 Bing. 354, by Park, J.; and by Littledale, J., in Beckwith v. Philby, 6 B. & C. 637, where, if any actual felony have been committed, the complainant may justify on showing probable cause. Those were cases of false imprisonment to be sure; but, certainly, personal liberty is quite as sacred as rights of property. If the common law ever stood as contended by the plaintiff, it was a manifest relic of an antiquated feudal barbarism ; and such an one as the courts of America will not readily adopt. The only cases we have been able to find in the United States, are Bell v. Clapp, 10 J. R. 263, where the goods were found, though the court lay no stress on that fact; and Beatty v. Perkins, 6 Wend. R. 382, where the goods were not found; and though the warrant issued on the mere allegation of the defendant without apparent "probable cause," the court held, after a thorough review of all the authorities, that it was a good justification. The last case is identical with this. 3. There is another view of the case, arising out of the cases above cited, which is conclusive against the plaintiff's action. The plea shows that the defendant entered under the authority of the law, and as the servant, and by the command of, the proper officer of the law. This, as regards the vi et armis, is the act of the law, and justifies the force, &c. Chipman v. Bates. And it is well settled, both in England and this state, that CHITTENDEN, January, in trespass, where the act is done under authority of legal 1843. process, the "virtute cujus" is not traversable. The attempt here is to show that the defendant, though acting under the law, wrongfully set the law in motion. This cannot be done. And it presents a fine illustration of the true distinction between trespass, vi et armis, and on the case-the one is applicable where the injury is direct and immediately consequent upon the unlawful act-the other where the injury, or its immediate cause, is only consequential, and remote, from the unlawful act. The entering of the house was legalized by our statute. Hence that act was not unlawful. If there was any thing unlawful, it was the act of the defendant in making the complaint; but for this the plaintiff could not have trespass, for it lacked the vi et armis, and could work no injury in and of itself. If it wrought an injury, it was by setting the law in motion to do the forcible acts. In this view it likens itself to a case of malicious prosecution. Ham. N. P. 114, 121-2; 1 Ld. R. 412; 1 Saund. 298; 11 Vt. R. 22; 3 East R. 593; 1 Chit. Pl. 152; 3 T. R. 185; Boot v. Cooper, 1 T. R. 535. J. Maeck, for plaintiff. Two questions arise in the present case: first, is the plea sufficient; second, if the plea is not sufficient, then is the declaration sufficient in form and substance, and appropriate to the cause of complaint. I. The plea which it is contended is bad. The plea attempts to set up a justification under process of an inferior court. The process was one of an extraordinary character, unknown to the common law; (Coke, 4 Inst. 176; 1 Chitt. Crim. L. 64) a process which, in its execution, most deeply affects the feelings and character of the individuals who are made subject to its operation. It is highly proper that it should be watched with great jealousy by the higher tribunals; and no justification under it is ever to be held good, unless the party shows by his plea that he has conformed himself to the law in every particular, in praying out, and executing the warrant. He is bound, in pleading, not only to set forth the warrant itself, but a justifiable cause for |