II. Statutes relating to the Action of false Imprisonment, 21 Jac. 1. c. 12.-24 G. 2. c. 44.

Stat. 21. Jac. 1. c. 12.-By stat. 21 Jac. 1. c. 12. s. 5. it is enacted, "if any action, bill, plaint, or suit, for false imprisonment, shall be brought against any J. P., mayor, or bailiff of city, or town corporate, headborough, portreve, constable, tithing-man, churchwarden, or overseer of the poor, and their deputies, or any other, (who in their aid, or by their commandment, shall do any thing concerning their office) concerning any thing by them done by virtue of their office, such action, bill, &c. shall be laid within the county where the trespass was committed." 2. "The above-mentioned persons may plead the general issue, and give the special matter in evidence." 3. "If upon the trial, the plaintiff shall not prove that the trespass was committed within the county wherein the action, &c, is laid, then the jury shall find the defendant, without respect to the plaintiff's evidence, not guilty." 4. "If the verdict shall pass with defendant, or plaintiff become nonsuit, or suffer any discontinuance, defendant shall have double costs."

N. The officer or person acting in aid, in order to entitle himself to double costs, must obtain a certificate from the judge, that, at the time of the trespass, he was a mayor, constable, &c. and in the execution of his office, or that he was acting in aid of mayor, constable, &c. But it is not necessary that this certificate should be granted at the trial".

The provisions of the preceding statute having been found very salutary, they have, by a late statute (42 G. 3. c. 85. s. 6.), been extended to all persons holding a public employment, or any office, station, or capacity, civil or military, either in or out of this kingdom, and who, by virtue of such employment, have power to commit persons to safe custody; provided, that where any action shall be brought against such persons in this kingdom, for any thing done out of this kingdom, the plaintiff may lay the act to have been done in Westminster, or in any county where the defendant shall reside.

By stat. 24 G. 2. c. 44. s. 1. "No writ shall be sued out against, nor any copy of any process at the suit of a subject, shall be served on, any J. P., for any thing by him done in the execution of his office, until notice in writing of such

a Anon. 2 Ventr. 45.

b Harper v. Carr, 7 T. R. 449,

intended writ or process shall have been delivered to him, or left at the usual place of his abode, by the attorney or agent for the party who intends to sue, at least one calendar month before the suing out or serving the same, in which notice shall be clearly and explicitly contained the cause of action (8); on the back of which notice shall be indorsed the name of such attorney, with the place of his abode (9), who

(8) Two things are required by this clause before an action can be brought against a magistrate, one that the plaintiff shall give notice of the writ or process which he intends to sue out; the other, that such notice shall also contain the cause of action. This form, prescribed by the statute, must be religiously adhered to, as will appear by the following case:

Plaintiff gave defendant notice, which, after reciting the cause of complaint, stated, that plaintiff would cause an action to be commenced against defendant; such notice was holden insufficient, because it did not mention any writ or process. Lovelace v. Curry, 7 T. R. 631. It is not necessary, however, that the form of action should be stated in the notice*; but the plaintiff having given notice of one form of action cannot declare in another:

Plaintiff gave notice of an action on the case for false imprisonment, and afterwards brought an action of trespass and false imprisonment. Yates, J. held the notice insufficient, as tending to mislead the J. P. who might know that an action on the case was improper, and such whereon the plaintiff might be nonsuited, and neglect to tender amends. Strickland v. Ward, Winchester Sum. Ass. 1767, reported in a note to Lovelace v. Curry, 7 T, R. 631.

Where the subject matter is within the jurisdiction of the magistrate, and he intends to act as a magistrate at the time, however mistaken he may be, he is still within the protection of the statute. Hence, where one magistrate committed the mother of a bastard to custody for not filiating, it was holden that such magistrate was entitled to the notice prescribed by this statute, before an action for false imprisonment was brought against him, although the stat. 18 Eliz. c. 3. s. 2. only gives jurisdiction in such matters to two justices of the peace. Weller v. Toke, 9 East, 364.

(9) A notice written by the attorney, and signed by him thus: "Given under my hand, at Durham," was holden insufficient, because it did not expressly state that Durham was the place of attorney's residence. Taylor v. Fenwick, M. 23 Geo. 3. B. R. cited by Lawrence, J. in Lovelace v. Curry, 7 T. R. 635. But a notice, indorsed with the name of the plaintiff's attorney, with the addition of the words "of Birmingham," has been holden sufficiently descriptive of the attorney's place of residence. Osborn v. Gough, 3 Bos, & Pul. 551.

* Sabin v. De Burgh, 2 Camp. N. P. C. 196.

shall be entitled to the fee of 20s. for preparing and serving such notice." And by s. 2. "It shall be lawful for such J. P., at any time within one calendar month after such notice given, to tender amends to the party complaining, or to his attorney, and in case the same is not accepted, to plead such tender in bar to any action grounded on such writ or process, together with the plea of not guilty, and any other plea, with leave of the court; and if upon issue joined the jury find the amends so tendered to have been sufficient, they shall give a verdict for the defendant; and in such case, or in case the plaintiff become nonsuit, or discontinue his action, or judgment be given for such defendant upon demurrer, such J. P. shall be entitled to the like costs as if he had pleaded the general issue only; and if the jury find that no amends were tendered, or that the same were not sufficient, and also against the defendant on such other plea, they shall give a verdict for the plaintiff, and such damages as they think proper, which he shall recover, together with his costs." And by s. 3. "No such plaintiff shall recover any verdict against such J. P. where the action is grounded on any act of the defendant, as J. P., unless it is proved upon the trial that such notice was given; but in default thereof, such J. P. shall recover a verdict and costs." And by s. 4. "In case such J. P. neglect to tender any amends, or have tendered insufficient amends before the action brought, he may, by leave of the court where such action depends, at any time before issue joined, pay into court such sum as he shall see fit; whereupon such proceedings shall be had as in other actions where the defendant is allowed to pay money into court." And by s. 5. "No evidence shall be given by the plaintiff, on the trial of any such action, of any cause of action, except such as is contained in the notice." And by s. 6. "No action (10) shall be brought against any

(10) This section does not extend to actions of assumpsit, Hence, where an action for money had and received was brought against an officer, who had levied money on a conviction by a J. P., the conviction having been quashed, it was holden, that a demand of the copy of the warrant was not necessary. Feltham v. Terry *,

E. 13 G. 3. B. R. Whether the term "action" extended to replevin or not, seems formerly to have been a vexata quæstio. In Pearson v. Roberts and another, Willes, 668. it was holden to extend to actions of replevin to recover damages † : but Willes, C. J.

* Bull. N. P. 24.

Q. Whether there be any mode of proceeding, by action of replevin, to recover damages, as contradistinguished from proceedings to have the goods again. See 6 East, 236.

constable, headborough, or other officer (11), or against any person acting by his order and in his aid, for any thing done in obedience (12) to any warrant under the hand or seal of

in delivering the opinion of the court, took a distinction between a replevin by plaint, in the sheriff's court, for the recovery of the goods, and replevin by way of action, to recover damages, admitting that the former could not be considered as an action within the meaning of the statute. In Milward v. Caffin, 2 Bl. R. 1330. it was holden, that replevin was a proceeding, to which the statute had never been held to exteud. On the last cited case, Lord Kenyon made the following observations, in Harper v. Carr, 7 T. R. 270. "I will not now enter into an examination of the case of Milward v. Caffin, because that was decided on the form of the action, replevin, to which it was ruled this statute did not extend; had it not been for that decision, I should have thought that the act did extend to a replevin, and certainly convenience requires that it should; otherwise it is in the plaintiff's power to evade the provisions of the act, by adopting a particular mode of proceeding, which depends on his own choice. Perhaps, however, it may be shewn on examination, that this case was rightly decided, whatever doubts may have been concerning it." Such was the opinion of Lord Kenyon; but the question to which it relates is now completely at rest: for, in Fletcher v. Wilkins, 6 East, 283. it was expressly determined, that replevin was not an action within the meaning of this statute; Lord Ellenborough, C. J. (who delivered the judgment of the court) observing, that the reason assigned by Lord Kenyon, ab inconvenienti, had undoubtedly great weight; but, on the other hand, it appeared to the court, that the inconvenience of depriving the subject of his remedy by replevin was full as great; for it might happen, that no damages which a jury was properly authorized to give, could compensate for the loss of a particular chattel, which the owner might be for ever deprived of, if he could not sue replevin.

(11) Churchwardens*, and overseers of the poor†, acting under a magistrate's warrant of distress for a poor's rate, are within the meaning of the words "other officer" in this statute, and consequently entitled to the protection which it affords, when sued in those actions to which the statute extends, e. g. trespass, &c., but secus when sued in replevin, that being a proceeding not within the statute. See the preceding note.

acted in obedience to the liable, the officer is not Money v. Leach, 3 Burr. But if the officer act in

(12) The officer must prove that he warrant, and where the J. P. cannot be entitled to the protection of the statute. 1766. Bell v. Oakley, 2 M. & S. 259. obedience to the warrant it is immaterial whether the warrant be

Harper v. Carr, 7 T. R. 271.

Nutting v. Jackson, E. 3 G. 3. B. R. Bull. N, P. 24,

any J. P. until demand has been made or left at the usual place of his abode, by the party intending to bring such action, or by his attorney, in writing (13), signed by the party (14) demanding the same, of the perusal and copy of such warrant, and the same has been refused or neglected for six days after such demand; and in case, after such demand and compliance therewith, any action be brought against such constable, &c. for any such cause as aforesaid, without making the J. P. who signed or sealed the said warrant, defendant, on producing and proving such warrant at 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 com

legal or not. If the warrant direct the officer to seize "stolen goods," and he seizes goods which fall within the description contained in the warrant in other respects, although they turn out not to be stolen, he is still under the protection of the statute. Price v. Messenger, 2 Bos, & Pul. 158.

(13) A duplicate original of demand is sufficient evidence. Jory v. Orchard, 2 Bos. & Pul. 39.

(14) Demand, signed by attorney, is within the meaning of this section. Ib. per Buller, J.

(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.