the court, he cannot be a witness because he is a defendant, and if the warrant will not protect him, he is without defence. Serjeant Burland in reply-I admit that if a constable or other officer acts in a cafe where he is bound to obey, he is juftifiable, and if the warrant granted by a juftice be wrong, he only is anfwerable. If my Brother can fhew that Saunders was bound and compelled to give the information, I will admit he is not answerable; but on the contrary it appears he is a mere volunteer in this bufinefs, as I before said. In the case of an information before a juftice of the peace, there are neceffarily three perfons of the drama, the informer, the magiftrate, and the conftable or officer, who act different parts; but here the defendant Saunders voluntarily takes upon himself to act two parts, the part of the informer and the officer, which he was not bound to do-This act of parliament points out the perfon aginft whom the redrefs fhall be had, if wrong be done (namely) the officer [the informer] who is to execute the warrant, is that perfon who fhall be anfwerable in fuch a cafe as this; if it was otherwife, I could not help thinking myself an abfolute flave, for it would be indifferent to me whether a fet of thefe myrmidons, excife and custom-house officers, or a band of foldiers, could enter my houfe by day or by night, and do me fuch injury (as in this cafe has been done to the plaintiff) with impunity; it would be monftrous to suppose that the legislature hath given any fuch power to these perfons, fo I do not doubt but the court will give judgment for the plaintiff, who is as eminent a tradesman as any in London. This cafe was well argued again at the bar in this term by Serjeant Kemp for the plaintiff, and Serjeant Glynn for the defendant; when the court was fo clear that judgment ought to be given for the plaintiff, that Serjeant Kemp was told by the Lord Chief Juftice he had no occafion to reply. Lord Chief Justice De Grey-This cafe has been spoken to at the bar extremely well, it is a queftion of great confequence to the King's fubjects, who ought certainly to know the perfons against whom they fhall have remedy, whenever' they shall be injured in a cafe like this. This is a queftion of conftruction upon an act of parliament, the 10 Geo. 1. ch. 10. fect. 13. which enacts, that if any officer fhall have caufe to fufpeet that any coffee, tea, &c. is fraudulently concealed, &c. then upon oath made by fuch officer before two of the commiflioners, fetting forth the ground of his fufpicion, they may, by warrant, authorize the officer to enter, &c. feize and carry away all the coffee, tea, &c. which he shall find concealed, &c.; and if any perfon fhall hinder the officers from entering, or feizing, or carrying away fuch coffee, tea, &c. the offender fhall forfeit 100/. Saunders the officer, upon his own oath, obtains a warrant, fearches the plaintiff's house, finds nothing; he both acquires and executes the warrant. It is contended he is juflifiable as acting under the command of the commiffioners, and that it is fufficient for him to fhew their warrant authorizing him to enter the plaintiff's houfe, &c. in like manner as a bailiff of the fheriff is juftifiable in the execution of his warrants. But the case of a sheriff's bailiff is very different from this; the bailiff is bound to execute the fheriff's warrant; the officer of excife is the party promoting, and acting for his own benefit under an authority which he has obtained by his own oath, and he is not bound to obey like a fheriff's officer; Saunders fwears to his fufpicion, he is mistaken, and his fufpicion is groundless, he finds no teas concealed; the whole matter rifes and ends in himself. The question is, whether the excife-officer is juftified in all events, or whether he acts at his peril; I am of opinion he acts at his peril, and is a mere volunteer.In cafes of warrants granted to fearch for ftolen goods, the informer makes oath that a felony has been committed, and of the reafons he has for fufpicion that the goods are concealed in such a place; the execution of thefe warrants depends upon the event; the search is lawful if the goods are there; unlawful, if not there; and although the juftice of peace and the officer may juftify in trefpafs, yet the informer cannot. 2 H. H. Pl. Coron. 150. It is faid the warrant to search the plaintiff's houfe was granted upon a judgment formed by lawful magiftrates [the commiffioners]; I think the commiffioners were bound to grant the warrant upon the oath of Saunders, and could not form any judgment upon the matter, the commiffioners have no power to fummon the fufpected party or any witneffes, they cannot examine on both fides, fo it was impoffible for them to judge; if the commiffioners had fuch power it would be nugatory, for the goods would be removed before fuch examination could be had.- -I think the flat. 10 Geo. 1. ch. 10, fect. 13. is compulfive upon the commiffioners to grant the warrant to the officer to enter and fearch, upon his oath of fufpicion that teas, &c. are fraudulently concealed; fo it points out the very perfon liable, if any injury be done, and no goods found; and it is reasonable and and juft that the informer who obtains and executes the warrant fhould be anfwerable in this cafe; and in my opinion the production of the warrant of itself is not a fufficient juftification. Whether, upon the trial, the information would have been admiffible evidence for the defendam, is not now for the court to determine; but as it was then called for, by the plaintiff, I think it ought to have been produced; but as no evidence was given at the trial of any probable caufe or ground of fufpicion that tea was fraudulently concealed by the plaintiff, the jury found a verdict for him, and gave the whole damages in the declaration; and I am of opinion he muft have judgment. Gould Justice-It is not neceffary to determine whether an action will or will not lie against the commiffioners; but thus much I will fay, that if a warrant, like the prefent, fhould be granted by them, upon a frivolous, vain and groundless fufpicion, an action might well lie against them; but I do not give any opinion as to this. The officer by his own act having obtained the warrant, I think it is not neceffary now to determine, whether he was then bound to execute the fame. The ftatute fays, if the officer fhall have caufe to fufpect, &c. then upon his oath fetting forth the ground of his fufpicion, the commiflioners may grant a warrant authorizing him to enter, fearch, &c. no evidence was given of the ground of the defendant's fufpicion, he ought to have fhewn to the court and jury the cause of his fufpicion; fuppofe the defendant had been obliged to have pleaded fpecially, I think he could not have justified under the warrant alone, but must have pleaded the facts upon which he grounded his fufpicion, and if, upon the facts pleaded a probable caufe had been fhewn, he might (perhaps) have been juftified in the opinion of the jury, although no goods were found; I am also of opinion that judgment must be given for the plaintiff. Blackftone Juftice-Upon the firft argument of this cafe I was and ftill am of opinion that judgment must be given for the plaintiff. I think this is not fuch a warrant as actually commands and requires execution, but I look upon it as a permiflion to the officer to act at his peril. I should rather think the commiffioners would be liable to an action, if there was not good ground of fufpicion laid before them before they granted the warrant, but I give no opinion as to this.-After the officer has acquired the warrant, I think it remains ftill in his option whether he will execute it or not. Nares 2 Black. Rep. 921. S. C. Nares Juftice I am of opinion with my Lord Chief Justice and my brothers, that the plaintiff must have judgment; and fo I was upon the first argument. By the 12th fect. of the ftat. 10 Geo. 1. ch. 10. power is given to the officer's, in the day-time to enter all warehouses, &c. uled for keeping coffee, tea, &c. and to take accounts thereof, &c. this fect. only has refpect to druggifts, grocers, &c. &c. 3c. or other perfons felling or dealing in coffee, tea, &c. by wholefale or retail; but the legislature feeing that coffee, tea, &c. might be fraudulently concealed in private houses, made fur ther provifion by fect. 13. for the fecurity of the subject with refpect to the officer's power of entering into private houses to fearch, &c. the officer himself, who makes information that goods are concealed, must be the perfon authorized by warrant from the commiflioners to enter, fearch, &c. who have a dif cretionary power to grant fuch warrant. In the prefent cafe, the officer informs on oath, acquires a warrant, enters and fearches the plaintiff's houfe, but finds nothing, and an action of trefpafs is brought.-What ought the officer to have fhewn besides the warrant? He ought to have proved upon the trial, that he is an officer, that he made information on oath of the cause and ground of his fufpicion, and what that caufe and ground of fufpicion was, that the jury might judge whether there was any probable caufe or ground of fufpicion, that tea was fraudulently concealed in the plaintiff's houfe; but he proved nothing of this; et de non apparentibus et non exiftentibus eadem eft ratio, it would therefore be very ftrange indeed for the court to fay he is justified under the warrant alone; if a commiffion of bankruptcy be fued out against a perfon not liable to be a bankrupt, and he be declared a bankrupt thereupon, and his goods be feifed to the use of the affignees, trefpafs lies against the affignees who cannot justify under the Lord Chancellor's commiffion alone, but muft fhew every requifite neceffary to prove the party was liable to be a bankrupt; [See 2 Wilfon, 382.] In repleving I the jury at the trial omit to affefs the defendant his damages, a writ of inquiry fhall iffue. Judgment for the plaintiff, per totom curiam. Dewell verfus Marshall. C. B. N replevin, the plaintiff declares for taking and detaining his goods at the parifh of A. in a certain place there called B. The defendant, as churchwarden and overfeer of the poor of the parish of A. avows (under the flat. 43 Eliz. ch. 2. fect. 19.) the taking the goods as a difirefs for the poor's rate; to which the plaintiff pleaded in bar that the defendant took the goods goods of his own wrong, without any fuch caufe alleged by the defendant; iffue being thereupon joined and tried, a verdict was found for the defendant; but the jury did not affefs any damages. The defendant figned final judgment the 3d of May laft, when the prothonotary allowed him 42/. 10s. cofts. It was now moved on the behalf of the defendant, that a writ of inquiry might iffue to inquire what damages the defendant. had fuftained by reafon of the premifes, for that the defendant is intitled to recover treble damages by the ftat, 43 El. ch. 2. fet. 19. by reafon of the wrongful vexation, with his cofts alfo in that part fuftained; whereupon the court made a rule to fhew cause why a writ of inquiry fhould not issue. Upon fhewing cause it was objected for the plaintiff, 1ft, That the defendant having already figned final judginent and had his cofts taxed, had made his election, and now comes too late. edly, That the damages must be affeffed by the fame jury who tried the issue, as appears by the 19th fect. of the said ftatute. But per curiam, the fame jury who tried the iffue may affefs the damages; but if they do not, we must do juftice, and award a writ of inquiry to the fheriff; and a writ of inquiry was accordingly iffued to affefs the defendant his damages. Rowning Gent. verfus Goodchild Gent. This record is entered of Trinity term in the 12th year of King Suffolk (to wit) (to wit) JOHN 2 Black. Rep. 906. S. C. OHN GOODCHILD, late of Ipfwich in the [A&ion on county aforefaid, gentleman, was attached to answer the cafe for to Benjamin Rowning gentleman, in a plea of trefpafs against a deupon the cafe, &c. and whereupon the faid B. R. by John puty post damages, lies matter for 2709: Cowp. Kirby his attorney complains, that whereas the faid F. G. on non-delivery the first day of May in the year of our Lord 1770, and long be- of letters fore, was, and from thence hitherto hath been deputy poft- tis in a coun master of the town of Ipfwrch, in the faid county of Suffolk; try poft-town. See 5 Burr. and whereas alfo the faid B. R. on the fame day and year aforefaid, and long before and afterwards, was an inhabitant of and 182.] within the faid town of Ipfwich, whereof the faid J. G. on the Declaration fame day and year aforefaid, had notice, (to wit) at Ipfwich afore- deputy postfaid, in the faid county of Suffolk; and whereas alfo the faid mafter of 7. G. as being deputy poft-maller of the faid town of Ipfwich as Ipswich for aforefaid, ought to have delivered all letters fent by the poft, keeping and and brought to him the faid 7. G. at the poft-office of the faid detaining the town plaintiff's let against the wrongfully ters directed |