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 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 as aforesaid." 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." 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, (15) unless commenced within six calendar months after the act committed (16)." 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., of 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 (15) "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. (16) 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 1st of February, for the whole is one entire trespass. Pickersgill v. Palmer, Bull. N. P. 24. 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 had been convicted, or on account of which he had 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. THE general issue to an action for false imprisonment is, not guilty. By stat. 7 Jac. 1. c. 5. (made perpetual by 21 Jac. 1. c. 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., 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 Massey v. Johnson, B. R. Trin. b Rowe v. Tutte, Willes, 14. 49 G. 3. 12 East, 67. 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 authority. 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 write (17) under which he acted, for he is bound to execute the process of the court, having competent jurisdiction, without enquiring 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 separately; 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 justi c1 Inst. 283. a. Matthews v. Cary, 443. e Turner v. Felgate, 1 Lev. 95. Cotes v. Michill, 3 Lev. 20. f Philips v. Biron, Str. 509. Smith 7. Boucher, Str. 994. Middleton v. Price, Str. 1184. (17) 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. recog nised in Cheasley v. Barnes, 10 East, 73. but there said by Ld. 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 un der process, which he ought to return (and all mesne process ought to be returned) 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; other wise it is of one who has not the power to procure a return to be made." Per Holt C. J, in Freeman v. Blewett, Ld. Raym. 633, fication is founded on process out of the superior courts: but in justifying under process issuing out of inferior courts, a greater strictness is required: as, 1. The nature and extent of the jurisdiction of the court below ought to be set forth (18); for the judges of the superior courts are not bound to take cognizance 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 (19) of the court below to make this averment in their plea, because they were punishable if they did not obey the process of the court, yet when the party, or his attorney, or a mere stranger, pleaded a justification under process of an inferior court of record, it was necessary for them to state, that the cause of action arose within the jurisdiction of the court (20). Merely stating in the plea the declaration in the court below, which contained an averment that the cause of action arose within the jurisdiction, is not g Moravia v. Sloper, Willes, 37. (18) It is not necessary, however, to make a profert of the letters patent by which the court is erected. Titley v. Foxall, Willes, 689. (19) 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 appear that the process issued in a cause wherein the court below had jurisdiction. (20) But it is not necessary to set forth the cause of action, Rowland v. Veale, Cowp. 18. recognised in Belk v. Broadbent, 3 T. R. 183. where the same doctrine was applied to a justification under mesne process issuing out of a superior court, and in which the defendant merely stated, that the writ, upon which the plaintiff had been arrested, had been issued upon an affidavit to hold to bail, without stating any cause of action for which the plaintiff was liable to be arrested. sufficient, for such averment is not traversable. 3. Before the time of Charles the Second, it was necessary to set forth the proceedings had in the inferior court at length (21); but now they may be set out shortly with a taliter processum est; but if the party justify under a capias ad respondendum, a precedent summons ought to be set forth, or at least the plea ought to be so framed, that the court may intend that a precedent summons had issued', for a capias without a summons is illegal. Where it is stated that the capias issued at the same court at which the plaint was levied, this intendment cannot be made; but where it appears on the plea that the plaint was levied at one court, and the capias issued at a subsequent court, and this allegation is introduced by a taliter processum est, there such intendment may be made". In justifying a trespass under the process of a foreign court, it seems that the plea should be formed in analogy to similar justifications under the process of our inferior courts; but, at any rate, a plea which only states that the court abroad was governed by foreign laws, that the property seized was within its jurisdiction, that certain legal h Adney v. Vernon, 3 Lev. 243. i Patrick v. Johuson, 3 Lev. 403. Rowland v. Veale, Cowp. 18. Higginson v. Martin, 2 Mod. 197. k Marpole v. Basnet, Willes, 38. n. (a.) 1 See Titley v. Foxall, Willes, 688. m Marpole v. Basnett, ubi sup. Murphy v. Fitzgerald, Willes, 38. n. (a.) n Titley v. Foxall, Willes, 688. Adams v. Freeman, reported in Say. 81. and 2 Wils. 5. and illustrated by Durnford, Wilies, 39. (21) There is an obiter dictum in Morse v. James, Willes, 128. that the plaintiff, or a mere stranger, must set forth the proceedings at length, and it is there said to have been established in Moravia v. Sloper. Upon an examination of that case, I cannot find that any such point was expressly decided in it. The court, indeed, in that case were of opinion, that the party, having set forth a capias, ought to have shewn a precedent summons, and that from the taliter processum est, as there pleaded, a summons could not be presumed. It is worthy of remark, that Willes C. J., speaking of Moravia v. Sloper, in Titley v. Foxall*, says, held, in Moravia v. Sloper, that taliter processum est would be sufficient, if it did not appear (as it did in that case) that there could not have been a precedent summons. So in Johnson v. Warner, Willes, 528. it was holden that this mode of pleading, by taliter processum est, was good, and the modern practice is in conformity with it. Rowland v. Veale, Cowp. 18. and 1 Wms. Saund. 92. D. (2), * Willes, 690. 66 we |