2 Black. Rep. 912. S. C. against an for breaking 66 delivered to the perfons to whom the fame are directed, or to fend notice of the arrival thereof within a reasonable time;If the defendants in this cafe were to be afked in what manner they ufually deliver the goods at London, they would answer, We always keep a porter at London by whom we fend out the goods to be delivered to the perfons to whom the fame are "directed;" our opinion is confined to this particular cafe only. Judgment for the plaintiff. Bostock verfus Saunders and others. C. B. Trefpafs lies TRESPASS n et armis, for breaking and entering the plaintiff's dwelling-houfe, and continuing therein for the excife officer fpace of twelve hours, without the leave and against the will of and entering the plaintiff, and difturbing him in the quiet and peaceable pofthe plaintiff's feffion thereof to his damage of 100l.Iffue being joined upon houfe, undera the general plea of not guilty, this caufe was lately tried before Lord Chief Juftice De Grey, when a verdict was found for the plaintiff, and 100l. damages, fubject to the opinion of the court upon this cafe. warrant of the commillion ers of excife, obtained fendant's own information that he fufpected teas were concealed in or about the plaintiff's houfe; where no fuch goods are found. [See Boot v Coop.r & al. cited 1 Term Rep. K. B. 535. contrà.] The warrant. The defendant being an officer for the duties of excife on the 22d of October 1772, upon oath made by himfelf before two commiffioners of excife, that he had caufe to suspect and that he did fufpect that tea was fraudulently hid and concealed in or about the house of the plaintiff in Hatton-ftreet, London, obtained a warrant from the fame commiffioners in the following words, viz. $6 Chief office of excife in London for the duties of excife, &c. "Whereas John Saunders one of the officers for his majefty's duties of excife hath this day made oath before us commiffioners of excife that he hath caufe to fufpect, and that he "doth fufpect that tea is fraudulently hid and concealed in 66 fome place or places in or about the houfe of Henry Boftock, "of Hatton-freet, merchant, within the limits of the chief "office aforefaid, with an intent to defraud his prefent majefty "of his duties thereon: fetting forth in and by his faid oath the "ground of his fufpicion, and the fame: appearing to us to be reasonable ground of fufpicion; we therefore by virtue of the "power and authority to us given, do judge it reafonable, and by this prefent warrant under our hands and feals, do autho 66 rize and impower the faid John Saunders to enter into all and every room and place in and about the faid house, and the, "out-houfes thereunto belonging, and to feize all fuch tea and "other goods liable to the duties of excife, or inland duties upon coffee, tea, &c. as he fhall find fo fraudulently hid and "concealed, as forfeited to his Majefty's ufe, together with all "the cafks or other veffels and things wherein the fame shall be contained; and all constables and other his Majesty's officers "are hereby authorized and required to be aiding and affifting "to him in the execution hereof, and for fo doing this fhall"be to him and every one of them a fufficient warrant. Given "under our hands and feals this twenty-feventh day of October, "in the year of our Lord one thoufand feven hundred and feventy-two." A. Lucas. The officer Saunders by virtue of this warrant entered the plaintiff's house, and fearched, but found no tea or other goods liable to excife in the plaintiff's house. plain The queftion is, whether the plaintiff is intitled to recover, Serjeant Burand arifes upon the statute of the 10th of Geo. 1. ch. 10. fect. 13. land for plainwhereby it is enacted that if any officer fhall have caufe to term 13 Geo. fufpéct that any coffee, tea, &c. is fraudulently concealed in any 3. place, either entered or not entered, then, if such place be within London or the bills of mortality, upon oath made by fuch officer before two commiffioners for the duties, fetting forth the ground of his fufpicion, the commiffioners may, by warrant, authorize the officer, by day or by night, but if by night, in the prefence of a peace officer, to enter into fuch places, and to feize and carry away all the coffee, tea, &c. which they fhall find fo fraudulently concealed, as forfeited for the King's ufe, together with the bags, &c. and if any perfon fhall hinder the officers from entering fuch places, or in feizing or carrying away fuch coffee, tea, &c. the offender fhall forfeit 100/. Saunders the officer, upon his own oath of fufpicion that tea was fraudulently concealed in the plaintiff's dwelling-house, obtains the warrant, and by virtue, or under colour thereof enters the plaintiff's houfe, together with the other defendants his affifants, they fearch the houfe but without fuccefs, for they found nothing, the fufpicion was groundless; and now the queftion is, whether the plaintiff fhall have this action. It was not proved at the trial, nor is it ftated to the court, what the ground or caufe of fufpicion was, that Saunders had F F 2 when when he swore he had caufe to fufpe&t that tea was fraudulently hid and concealed in the plaintiff's house, that does not appear to the court, they [at the excile-office] have printed forms of these informations and warrants with blanks always ready to be filled up occafionally with the names of whatfoever perfons they are pleafed to fufpect; the form of the oath or information runs thus, viz. "A.-B. maketh oath that he hath caufe to fufpect and doth fufpect that tea is fraudulently hid and concealed in "fome place or places in or about the house of C. D." and thereupon a printed blank warrant is filled up; then, away goes the officer with the warrant and his myrmidons with him, and enter the houfe of C. D. by day or by night, with a peaceofficer (perhaps an ignorant drunken petit conflable) they ranfack the whole houfe, fearch every room, cheft, cupboard and drawer in it. I apprehend, all thefe fummary jurifdictions given by act of parliament, are to be cónftrued and measured by the rules and principles of the common law, for leges ipfæ cupiunt ut jure regantur. How is the law, as to granting warrants by juftices of the peace, to fearch for ftolen goods and feizing them? They are not to be granted without oath of a felony committed, and that the party complaining hath probable caufe to fufpect they are in fuch a houfe or place, and do fhew his reafons for fuch fufpicion. The execution of thefe warrants depends upon the event, viz. it is lawful if the goods are there; unlawful, if not there; and although the juftice of peace who granted the warrant and the officer who executed it may juftify in trefpafs, yet the person who makes the information cannot juftify, 2 H. H. Pl. coron. 150, 151. 2 Wilson, 291, 292. Saunders, in this cafe is both the informer, and the officer who executes the warrant of the commiffioners to search, upon a pretended fufpicion that tea was fraudulently concealed in the plaintiff's houfe, but no ground or caufe of fuch fufpicion was proved upon the trial, or appears to the court, and therefore this informer and his affiftants, by law, must answer for the trespass they have committed, without any cause whatever. The person whofe house is fearched muft not refift under the penalty of 100l. be he ever fo fure and certain that he has no fuch thing as any tea, coffee, &c. in or about his houfe; but at the peril of this penalty, he must peaceably and quietly fubmit to have every room, cupboard, clofet and drawer in his houfe opened and ransacked, and all his private affairs pryed into, by any any little excife-officer who is pleafed to make fuch an oath as in the prefent cafe; what a terrible condition are Englishmen reduced to, if the plaintiff cannot, by law, recover fatisfaction for the injury which hath been done to him! The officer is the informer, to whom the warrant is to be granted, and by whom it is to be executed according to the act of parliament; he is a mere volunteer, and is the perfon whom the ftatute has pointed out to make fatisfaction if he does wrong; he doth not fland in the light or fituation of a fheriff or other law officers, who are bound to execute writs and process iffuing out of the King's courts, without knowing, or being permitted to examine whether the fame iffued legally and regularly or not. The ftatute of 12 Car. 2. ch. 19. to prevent frauds and concealments of the King's customs and fubfidies, was the first act which gave fuch power to enter houfes to fearch, &c. but by felt. 4. it is provided that if the information whereupon any houfe fhall be fearched fhall prove falfe, the party injured fhall recover his full damages and cofts against the informer by action of trespass. The ftatute of 13 & 14 Car. 2. ch. 11. fl. 32. gives the writ of affifiance, and enacts that all perfons aiding and affifling, &c. fhall be faved harmless; but it has been refolved that whoever enters by fuch writ of affiflance, if he finds nothing, he is a tref paffer ab initio. This act of 10 Geo. 1. now under confideration having followed one or other of the faid acts of Car. 2.) has pointed out the perfon who fhall be anfwerable in trefpafs if his information proves faife. The defendant's information in the prefent cafe has proved falfe, and if he is not, by law, answerable to the plaintiff in damages, the liberty of this country will have received a moft fevere blow, and every man's house, from the higheft to the loweft, will be open to excife and cuftom-house officers; the defendant have done wrong, and there is no cafe in the law wherein a man thall take advantage of his own wrong, Serjeant Walker for the defendants-It is a general principle of law that where any officer acts under the command of a court of juftice, or of a judge or magiftrate who has jurifdiction, the perfon commanded is juflifiable. In trefpafs against the sheriff, it is enough for his juftification to fhew a writ: To it is in the cafe of his bailiff or officer; with this difference, that the fheriff muft fhew the writ was returned, if returnable; the bailiff need not, because it is not in his power. 1 Salk. 408, 409. The fame tule holds in criminal cafes, Moore 408. Broughton verfus Mol FF 3 Shoe, Shoe, "Falfe imprisonment by Broughton against Mulfhoe, who juftified, because the plaintiff being in the prefence of a juice "of the peace, the juftice, not having opportunity to examine "him, commanded the defendant to take him into his cuftody "and fafeguard until the next day, which he did, being conftallé, "which is the fame imprisonment: and this was held a good "juftification without alleging the caufe which the justice had "for imprisoning the plaintiff, and without fhewing a warrant "in writing, because in the prefence of the justice; and the "juftification is as proper for any other man, as it is for the contable." I cite this cafe to fhew that where the juice has ju rifdiction to command the conflable, he might juftify although the justice had done wrong, for he was bound to obey the command of the justice whatever was the caufe; fo it is also with regard to the execution of warrants when the magiftrate is abfent. The officer must give credit to the command or warrant of the magiftrate, and can no more difpute his authority than the fheriff can difpute the authority of this court. 14 Hen. 8. 16. a. 1 Vent. 273. 10 Rep. 76. b. The case of the Marshalfea, S. P. Freeman 407. 66 In the prefent cafe the warrant is directed to the officer Saunders the defendant, who is bound to obey the commiffioners who have given the fame under their hands and feals: but it is objected, why does not Saunders fhew the information? I anfwer, it is not in his power, the commiffioners have it, and their warrant is fufficient to juftify him. But it is alfo objected, that Saunders the officer gave the information of his ground of fufpicion, and therefore ought to fhew it; I answer, that when Saunders made the information upon oath, it then became the fufpicion of the magiftrates the commiffioners, with whom the legislature have intrufted the authority to grant the prefent warrant thereupon to fearch the plaintiff's houfe for concealed tea, &c.; the warrant is compulfory, and not diftinguishable from any other warrant of a magiftrate having jurisdiction given by act of parliament to grant a warrant in any particular cafe; it is upon this ground I argue that Saunders was obliged to obey the command of the commiffioners and execute the warrant, and is juftified thereby whether he tound any tea concealed in the plaintiff's houfe or not. Gould Juftice-Surely Brother Walker your client might have fhewn the information and the ground of his fufpicion at the trial, if he had thought fit." Walker Serjeant-Whatever was the ground of fufpicion whereupon the magiftrate acted, the officer need not flew it to the |