OCTOBER,

1811.

Appeal dismissed, as having been improvidently granted.

Wells

Jackson.

Judge FLEMING. I consider this a very important case, as the liberty, quiet, and safety of all our citizens may be eventually affected by the decision.

It appears to me, that the appellant, and others, mentioned in the record, were arrested, and imprisoned, under a warrant illegal in itself, and executed by a person not legally appointed for that purpose ; and to deprive a citizen of his liberty, under colour of law, is oppression and tyranny in the extreme.

By our Bill of Rights, article 10th, it is declared, that general warrants. whereby an officer, or messenger, may be commanded to search suspected places, without evidence of a fact committed, or to seize any person, or persos, not named, or whose offence is not particularly described, and supported by evidence, are grievous and oppressive, and ought not to be granted.

The warrant now under consideration appears, clearly, to me, to be of that description ; "commanding the constable, or Major John Jackson, to arrest and bring before the justice who issued the same,

Wallas, of Brooke county, lawyer, and — Wells, of said county, yeoman, and their associates,” (not named therein.) The name of John Jackson, one of the persons to whom this ertraordinary warrant was directed to be executed, was crased, and the name of John Black (perhaps one of the prosecutor's dependants and associates, for it seems to have been a party business) was substituted in his place, by the prosecutor himself, without any authority for so doing.

In the famous case of Money et al. v. Leach, in the Court of king's bench, reported in 3 Burr. 1742., the whole Court were of opinion that the warrant, under which the defendant in error was' arrested, was illegal and void, on two grounds ; first. that Lord Halifax, then secretary of state, who issued the warrant, was not com

1811.

Wells

Jackson.

petent to do so; and, secondly, for its uncertainty ; it October, having required the apprehending and seizing the quthors, printers, and publishers, of (what was called) a seditious libel, contained in a paper, styled The North Briton, No. 45, without naming any person whatever as author, printer, or publisher, of the said paper.

Although, in England, the penal laws lean much towards prerogative, and the liberty of the press is not held so sacred as it is, and ought to be, with us, it is laid down by Blackstone, in his Commentaries, “ that a justice of the peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted ; and he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays the warrant; because he is a competent judge of the probability offered to him of such suspicion. But, in both cases, it is fitting to examine, upon oath, the party requiring a warrant, as well to ascertain that there is a FELONY, or other crime, actually committed, without which no warrant should be granted, as, also, to prove the cause of probability of suspecting the party against whom the warrant is prayed.” 2 Bl. Com. 290., and 2 Hale's History of the Pleas of the Crown, 580., cited.

In the case before us, it was not stated that a felony, breach of the peace, or other crime, had been committed; but that Edward Jackson made oath that he was afraid that ----Wallas, of Brooke county, lawyer, and Wells, of said county, yeoman, and their associates, would beat him, &c. Under this extraordinary, defective, and illegal warrant, Walias, William Wells, Stephen Gappin, and - Wells, were arrested, and committed to jail, the two latter said (I suppose by the prosecutor) to be associates of Wallas and Wells; and, although they are not before this Court, for reasons that do not appear, yet the proceedings serve to show the evil consequences that might result to the community at large, or to a great portion of our citizens, should they be sanc. tioned, or countenanced by this Court.

OCTOBER, I am clearly of opinion, upon the whole, that the war. 1811.

rant under consideration is illegal in its o igin, and was M‘Cormack's illegally executed ; and that the instruction given to the administrator jury by the Court below, was erroneous.

But it appears,
Obannon's
execator and by the record, that there was a writ of inquiry against
devisecs.

the defendant, Black, which seems not to have been acted
upon; the judgment was, therefore, incomplete, and the
appeal improvidently granted, and must, consequendy,
be dismissed.

λου. 25th,

1811.

Monday, M-Cormack's administrator' against Obannon's

executor and devisees.

a bond to con

relief of his

S

A Court of THIS was a suit, in the superior Court of chancery equity will not compel a se for the Staunton district, by the appellant against the apcurity in

pellees. M Cormack, the plaintiff's intestate, had been tribute to the co-security with Obannon, for a certain Richard Boucher, 00-security in a bond to Henry Whiting, on which judgment was obwho has been forced to pay tained by the creditor, and execution being issued, was the debtunles it appear satisfied by M*Cormack alone, whose administrator, that due dili- therefore, sued the representatives of Obannon, for congence was uSed, without tribution. The following opinion and decree was proeffect, to ob tain

reim- nounced in the cause by Chancellor Brown, the 24th of bursement from the prin- July, 1808. cipal obligor,

" The Court is satisfied, from the evidence in this cause,
or that he was
insolvent. that the plaintiff's intestate, and the testator of the de-

fendant, were co-securities of Richard Boucher; that the
plaintiff's intestate, on the 1st day of October, 1793, dis-
charged the whole debt; and there is no evidence to
prove that he ever received, either froin Boucher or
Obunnon, any payment or indemnity. Obannon was dead
before judgment was had on the bond, and it is not pre-
tended that any payment was made by him. Boucher,
it appears, remained in Berkeley county for about ten

,

1811,

years after the judgment against him and his securities, OCTOBER and about two years after payment by M.Cormack ; during which time, or the greater part of it, he was pos- administrator sessed of both real and personal property, of which the

Obannon's debt might, by possibility, have been made. He is not executor and

derisees. made a defendant, although it is possible he might have proved a payment, or satisfaction, to M Cormack or Whiting. This omission, with the length of time between the payment by M Cormack. who, it appears, lived about nine months after the payment,) and the institution of this suit, might raise a presumption of payment by Boucher; although it must be admitted that the presumption arising from these circumstances in the

a

“ The cause of action commenced 1st October, 1793; suit is instituted the 16th day of August, 1805, nearly twelve

years after; and the statute of limitations is relied on by the defendants. This, it is contended, does not apply to the present case ; 1st. Because co-securities are trustees for each other ; 2dly. The payment, by M Cormack, must relate back to the dale of the bond; and, 3dly. M Cormack is to be considered a bond creditor."

* 1st. In whatever light Courts of chancery might formerly have viewed co-securities, in order to bring them within their control, and to do whatever was considered just and equitable between them, when, perhaps, no other tribunal had cognizance of their case, I cannot,

I since our act of Assembly has given them relief against each other at law, see why their undertaking should be considered such a trust as would bar the statute of limia tations, which is equally respected by Courts of chancery and of law, except in cases exclusively within the jurisdiction of the former."

“ 2d. If the payment by M-Cormack, in 1793, can be considered as relating back to the date of the bond, in

• The sentence here is vot finished. The record seems to be incomplete.

October, 1783, so as to make it a debt of Obannon's to that date ; 1811.

and if the will of Obannon can be construed into an acM“Cormack's knowledgment of that debt, and an assumpsit to pay it administrator

whenever it should be demandable by M Cormack as his
Obannon's
executor and co-security, although this did not happen until nine years
devisees.

after his death ; this is placing M Cormack only where
our act of Assembly has paced him. But if it is sup-
posed that the devise in Obannon's will, viz. " I desire
that all my just debts be paid,” imposes a duty upon the
representatives of Obinnon against the defendant, of
which the statute affords no bar; this supposition is be-
lieved not to be correct whenever the duty (as here) is
demandable at law. The devise, in such case, it would
seem, ought to have no greater or other effect than a
promise of payment by the testator in his lifetime ; viz.
to revive the right of action; and not to create such a
trust as would prevent the executor, after the lapse of
five years from his qualification, from pleading the sta.
tute in bar. For one ground of the statute is the pre-
sumption of payment arising from the length of time,"
&c.

u In this case, the cause of action, which, under our
act of Assembly, was purely lega', arose nearly twelve

before the commencement of this suit; and I cannot see why it should not be barred by the statute, unless the plaintiff is to be considered a bond creditor of the defendants."

“ 3d. If the plaintiff was now coming in with other ereditors, for a distribution of the estate of Boucher, would be considered as standing in the shoes of Ilhiting, the obligee, or, rather, Whiting, the judgment creditor ; and this upon the general rule adopted for the marshalling of assets."

" This is the doctrine laid down in the cases of Eppes v. Randolph, (2 Call, 125.,) and Tinsley v. Anderson, (3 Call, 329.) But this doctrine is not applicable, it is believed, in this case, where one innocent security is seeking contribution from another innocent security. It

years

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a