cause of suspicion, at least, that he was accessary after the fact (a). It is the duty of the officer to whom the warrant is addressed or delivered to execute it within his district, without fee or reward, and if he neglect or refuse, he will be punishable by indictment. The statute 41 Geo. 3. c. 78. however, provides, that when special constables shall be appointed in England to execute warrants, in cases of felony, two justices may order proper allowances to be made for their expenses and loss of time, which order shall be submitted to Quarter Sessions, and two justices are enabled by the same statute to order allowances to be made to high constables in England, for extraordinary expenses incurred in the execution of their duties, in cases of riot or felony. OF SEARCH Of the indemnity ties concerned in [68] We have already considered the rights and liabilities of the pro- to the magistrate, secutor, and, incidentally, the protection the law affords to persons officers, and parconcerned in the arrest. It may be here proper to consider more the arrest. particularly the protection afforded by law to the magistrate and persons executing his warrant. With respect to a person acting as justice of the peace, no action can be brought against him for any thing done in the execution of his office, until after one calendar month's notice in writing of the intended process, and he may tender amends, and plead the same in bar of the action, or he may pay such amends into court, and the action must be brought within six calendar months after the cause of it is alleged to have arisen (b): the months being reckoned inclusive of the day of the act (c). In the case of a continued imprisonment, the magistrate is liable to answer in an action for such part of the imprisonment suffered under his warrant as was within six calendar months before the action commenced against him (d). It has been deemed sufficient to entitle a justice to the benefit of this act, that he conceived himself to be acting as a justice, though what he did was not in the regular execution of his office (e); but no notice is ne (a) 2 Hale, 151, 2. (b) 24 Geo. 2. c. 44. See this act fully commented upon, 11 St. Tr. 319, 320. 2 Wils. 288, 9. Dick. J. Peace, Justice (c) 4 J. B. Moore, 465. 3 Campb. OF THE INDEMNITY TO THE MAGISTRATE,&C. [ 69 ] cessary to support an action against a person for the penalty given by the statute 18 Geo. 2. c. 20, for acting as a justice without a proper qualification (a). The notice must express the nature of the writ or process intended to be sued out, as well as of the cause of action (b). The venue also must be laid in the county in which the cause of action occurred (c). The defendant may also plead the general issue, and give the special matter in evidence; and if the plaintiff do not recover, the defendant shall have double costs (d). But a secretary of state and others acting under his warrant, are not within the protection of the statute in favor of justices (e). With respect to the protection of inferior officers, it is enacted, that if any action be brought against any constable, head-borough, &c. or their deputies, or any other in their aid and assistance, or by their command, for any thing touching or concerning their office, the venue shall be laid in the county in which the supposed wrong was committed, and the defendant may plead the general issue, and give the special matter in evidence. And if he obtain a verdict, or the plaintiff be nonsuited, or suffer a discontinuance, the defendant shall have double costs (f). And though these inferior officers are not entitled to notice of action, nor can tender amends, or pay the same into court, as in the case of a justice of the peace, it is provided (g), that no action shall be brought against any constable, head-borough, or other officer, or person acting by his order, or in his aid, for any thing done in obedience to any warrant under the hand or seal of any justice, until demand in writing has been made or left at the usual place of his abode by the party intending to bring the action, or his attorney, of the perusal and copy of such warrant, and the same has been refused for six days after the making of such demand, and that, in case after such (a) Holt, C. N. P. 458. (b) 7 T. R. 621, and see cases on this subject, Tidd, 8th edit. 27. (c) 21 Jac. 1. c. 12. s. 5. 42 Geo. 3. c. 85. s. 6. (d) 21 Jac. 1. c. 12. s. 5. See the decisions on these statutes in Tidd, 8th edit. 19. 27. Selw. Ni. Pri. Imprisonment, II. (e) 2 Wils. 288 to 292. 11 Harg. St. Tr. 316, 319, 320. (ƒ) 21 Jac. 1. c. 12. (g) 24 Geo. 2. c. 44. s. 6. See constructions on this statute, Tidd, 8th ed. 19, 31, &c. Selw. Ni. Pri. Imprisonment, II. demand has been complied with, an action should be brought against such officer, without making the justice a defendant, then, on producing the warrant at the trial, the jury shall give a verdict for the defendant, notwithstanding any defect of jurisdiction in the justice; and if the action be brought jointly against the justice, constable, &c. then, on proof of the warrant, the jury shall find for the constable, notwithstanding the defect in the process. And it is provided (a), that no action shall be brought against a constable, &c. or person acting in his aid, unless commenced within six calendar months after the act committed. At common law, a lawful warrant from a justice who had jurisdiction of the cause, justified the officer who executed it, although it was irregularly awarded; but the officer was not excused, when the justice who issued the warrant had not jurisdiction of the cause (b). The statute 24 Geo. 2. c. 44. s. 6, was, therefore, passed to protect officers who are not competent to ascertain with certainty the jurisdiction of the magistrate, and who are liable to be indicted if they neglect to obey the warrant (c). Therefore, if an officer seize goods in obedience to the searchwarrant of a magistrate, whether that warrant be legal or not, he cannot be sued until a previous demand has been made of a copy of it (d). And a constable executing the warrant, if sued in trespass without the justice, is within the protection of the statute, and entitled to a verdict on proof of the warrant, having first complied with the plaintiff's demand of a perusal and copy of that instrument at any time before the action brought, though not within six days after such demand, as the act directs (e). In the construction of the words " any thing done in obedience to any warrant," it has been held, they are equivalent to the words. "acting by his order, and in his aid," and that where the justice cannot be liable, the officer is not within the protection of the statute. And it is necessary, in order to bring the officer within (a) 24 Geo. 2. c. 44. s. 8. (b) Com. Dig. Imprisonment. H. 8 & 9. Hawk. b. 2. c. 13. s. 10. Dick. J. Arrest, V. (c) 3 Burr. 1742. 3 Esp. Rep. 226. VOL. 1. E (d) 2 Bos. & Pul. 158. 3 Esp. Rep. 96. 5 East, 237. 1 East, P. C. 299, note (a). (e) 5 East, 445; and see 3 B. & A. 333. OF THE INDEMNITY TO THE MAGISTRATE,&C. [ 70 ] OF THE INDEMNITY TO THE MAGISTRATE,&c. [ 71 ] it, that he should act most strictly in obedience to the warrant (a).. With respect to the person who may be considered as acting by command of the constable, and in his aid, it has been held, that if a person procures a warrant against another, and points out the latter to the constable, he is entitled to the protection of the statute, and may plead the general issue, and give the special matter in evidence (h). A gaoler receiving and detaining a prisoner under (a) 3 Burr. 1768. 2 M. & S. 260. 11 St. Tr. 320. 3 B. & A. 333. (b) 3 Burr. 1768. (c) 2 Bos. & P. 158. 2 M. & S. 261; but see 5 J. B. Moore, 323. (d) 1 II. B. 15. 5 East, 233. (e) 2 M. & S. 259. (f) 3 B. & A. 330. 5 J. B. Moore, 322. (g) 2 Stark. 445; and see 3 Esp. 226. (h) 3 Campb. 257; and sce 2 Stark. 445. a warrant of magistrates, is entitled to the protection of the statute, in having the magistrates made defendants with him in an action of trespass (a). Though the statute 24 Geo. 2. enacts, that no action shall be brought against any constable, &c. yet it has been held, that the act extends only to actions of trespass or tort (b). And, therefore, where an action for money had and received was brought against an officer, who had levied money on a conviction by a justice, the conviction having been quashed, it was holden that the demand of a copy of the warrant was not necessary (c). If a constable acts without warrant, the statute does not apply, and the action against him may be brought after the expiration of six months (d). In cases to which the statute applies, if the plaintiff's attorney make out two papers, precisely similar, purporting to be demands of a copy of the warrant, pursuant to the statute, and sign both for his client, and then deliver one to the defendant, the other will be sufficient evidence at the trial (e). (a) Gow C. N. P. 97. (b) Bul. N. P. 24. 5 East, 1 White, W. 24. Tidd, 33. Selw. N. P. 3d edit. 822. 122. n. W. (c) Id. ibid. Bul. N. P. 24. (d) 3 Esp. Rep. 226. Selw. N. P. Imprisonment, II. N. 15. (e) 2 Bos. & Pul. 39. Tidd, 34. OF THE INDEMNITY TO THE MAGISTRATE,&c. |