ment was thus, "D. Shuter," with the place of abode in words at length (x). So where one christian name was omitted (y). So where the notice was signed in the name of the firm "Donne and Cox" (z). The service need not be made by the attorney himself; service by his clerk is sufficient (a).

By sect. 11,-Such J. P. may, after notice and before action, tender amends to the party complaining, or to his attorney; and after action has been commenced, and at any time before issue joined, the defendant, if he have not made any tender, or in addition to such tender, may pay into court such sum of money as he thinks fit; which tender and payment, or either of them, may be given in evidence at the trial under the general issue, and if the jury are of opinion that the plaintiff is entitled to no more damages than the sum so tendered or paid, or so tendered and paid, they shall give a verdict for the defendant, and the plaintiff shall not be at liberty to elect to be nonsuited, &c.

By sect. 12,-If at the trial the plaintiff shall not prove that the action was commenced within the time limited, or that such notice was given one calendar month before action, or if he shall not prove the cause of action stated in such notice, or that it arose in the place laid as the venue, the plaintiff shall be nonsuit, or the jury shall give a verdict for the defendant.

By sect. 13, in cases where the plaintiff is entitled to recover, if he shall prove the payment of any penalty, &c., as parcel of the damages he seeks to recover, or that he was imprisoned, he shall not be entitled to recover the amount of such penalty or more than 2d. as damages for the imprisonment, or any costs, if it be proved that he was actually guilty of the offence of which he was convicted, or that he was liable by law to pay the sum he was ordered to pay, and (as to the imprisonment) that he had undergone no greater punishment than that assigned by law for the offence of which he was convicted, or for non-payment of the sum he was ordered to pay.

By 24 Geo. II. c. 44, s. 6,—“No action (b) shall be brought against any constable, headborough, or other officer, or against any person acting by his order and in his aid, for any thing done in obedience to any warrant under the hand or seal of any J. P. (c), until demand has been made or left at the usual place of his abode,

(x) Mayhew v. Locke, 7 Taunt. 63. (y) James v. Swift, 4 B. & C. 681. (z) Wood v. Folliott, 3 B. & P. 552, n. (a) Morgan v. Leach, 10 M. & W. 558. (b) The word "action" here does not apply to an action “in rem," such as replevin. Fletcher v. Wilkins, 6 East, 283.

(c) A Secretary of State is not a justice of the peace within the statute, and,

therefore, his warrant, if bad, will not justify the officer who executes it, nor is it necessary to demand a copy of the warrant before the bringing of an action. So a king's officer is not within the statute, which means to protect those officers only, who are bound to execute warrants directed to them, as constables, &c. Entick v. Carrington, 2 Wils. 290.

.

by the party intending to bring such action, or by his attorney or agent, in writing, signed by the party 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 warrant, defendant, on production and proof of 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., 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 (d). A similar protection is extended to messengers acting in obedience to warrants of commissioners of bankrupts, by 12 & 13 Vict. c. 106, s. 107; but under a warrant to seize the goods or person of A., the messenger is not protected by it in seizing the goods or person of B. Munday v. Stubbs, 10 C. B. 432.

the

Churchwardens (e), and overseers of the poor (ƒ), acting under a magistrate's warrant of distress for a poor's rate, are within the meaning of the words "other officer" in the statute 24 Geo. II. c. 44, and consequently entitled to the protection which it affords, when sued in those actions to which the statute extends, e. g. trespass, &c. So is a gaoler. Butt v. Newman, 1 Gow, 97. A duplicate original of demand is sufficient evidence; Jory v. Orchard, 2 B. & P. 39; and if signed by the attorney, is sufficient within the meaning of the section; Ib. per Buller, J.; and may be left by his clerk. Clark v. Woods, 2 Exch. 395. A constable is within the protection of the above section, who has complied with the plaintiff's demand before action, though not within six days after demand. Jones v. Vaughan, 5 East, 446. Where on a demand of perusal and a copy of the warrant, the defendant gave a copy, saying, as the fact was, that the original was in the hands of the gaoler, and the plaintiff's agent made no objection, it was held, that the plaintiff had, by his conduct, dispensed with a literal compliance with the statute. Atkins v. Kilby, 11 A. & E. 777. But where the constable did not comply with the demand, although the plaintiff had received a copy of the warrant from other parties, it was held, that the constable was not within the protection of the section, although the justice was joined with him in the action.

(d) This section extends (semble) to actions of assumpsit to recover back money illegally extorted. Waterhouse v. Keen, 4 B. & C. 200; but see Feltham v.

Terry, Bull. N. P. 24.

(e) Harper v. Carr, 7 T. R. 271.
(f) Nutting v. Jackson, Bull. N. P. 24.

Clark v. Woods. A demand of perusal and copy within three days is good. Collins v. Rose, 5 M. & W. 194.

The officer must prove that he acted in obedience to the warrant; and where the J. P. cannot be liable, the officer is not entitled to the protection of the above section. "The act was meant to make the justice liable instead of the officer: where, therefore, the officer makes such a mistake as will not make the justice liable, the officer cannot be excused" (g). Hence, an officer executing a warrant of a justice of Norfolk at large, in the county of the city of Norwich, was held not to be justifiable (h). So where, under a warrant to take up loose and disorderly persons, the constable took up a woman of character. Dawson v. Clerk, cited 1 W. Bl. 563. So where the warrant was to take up the authors, printers, and publishers of a libel, and the officers took up persons who did not fall under any of those descriptions (i). So where, under a warrant against the goods of A., the defendant, an overseer, took goods already in the hands of the bailiff of A.'s landlord as a distress for rent (j). A perusal and copy of the warrant need not be demanded where the officer does not act within his jurisdiction in obedience to the warrant (k). But if the officer act in obedience to the warrant, it is immaterial whether the warrant be 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 (l). Secus, if the warrant specifies the goods (m).

By sect. 8.-No action shall be brought against any constable, &c., for anything done in the execution of his office, unless commenced within six calendar months after the act committed. This section is more extensive in its protection than the sixth, for under it a constable is protected, although he do not act "in obedience to" a warrant. A constable acting under a warrant commanding him to take the goods of A., took the goods of B., believing them to belong to A.: it was held, that he was entitled to the protection of this section, and that an action against him must be brought within six calendar months (n).- "Parton v. Williams points out the precise distinction between the two sections of the 24 Geo. II. c. 44, and discriminates between the absolute protection given by the eighth section and the minor degree of protection afforded by the sixth;" per Talfourd, J., Munday v. Stubbs, 10 C. B. 440. In

Postlethwaite v. Gibson, 3 Esp. 226, it was held, that the section did not protect a constable acting without a warrant, but this case was commented on in Parton v. Williams; and in Freegard v. Barnes, 7 Exch. 827, it was held, that the constable of W., acting under a warrant directed to the constable of D., was within the section; and see Ballinger v. Ferris, 1 M. & W. 628.

Where a constable was appointed under a local act, which gave a notice of twenty-one days before action could be brought for any thing done in pursuance of the act, and executed a warrant under the powers of another general act of parliament which gave no such protection, he was held not to be entitled to notice of action (o).

If a man be imprisoned by a warrant of a 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 (p). “Every continuance of the imprisonment is, in point of law, a new imprisonment; " per Bayley, J., Hardy v. Ryle, 9 B. & C. 609; in which case the question was moved, whether the last day of the imprisonment was to be considered as inclusive or exclusive. The month's imprisonment terminated on the 14th of December, and the writ was sued out on the 14th of June following; it was held, that the 14th of December ought to be excluded in computing the six months, and consequently that the action was commenced in due time. See ante, p. 927, note (i). But if the plaintiff give notice during the imprisonment he must commence the action within six months from that time (g).

III. Of the Pleadings.

Venue. By 21 Jac. I. c. 12, s. 5-If any action for false imprisonment shall be brought against any 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 anything concerning their office), concerning anything by them done by virtue of their office, such action shall be laid within the county where the trespass was committed, and not elsewhere; and if, upon the trial, the plaintiff shall not prove that the trespass was committed within the county where the action is laid, then the jury shall find the defendant, without any regard to the plaintiff's evidence, not Guilty. The provisions of the preceding statute were, by 42 Geo. III. c. 85, s. 6, extended to all persons holding a public employment, or any office, civil or military, either in or out of the kingdom, and who, by virtue of such employment, have power to

(o) Shatwell v. Hall, 10 M. & W. 523. (p) Pickersgill v. Palmer, Bull. N. P. 24.

(q) Weston v. Fournier, 14 East, 492.

commit persons to safe custody; provided, that where any action shall be brought against such persons in the kingdom, for anything done out of the kingdom, the plaintiff may lay the act to have been done in Westminster, or in any county where the defendant shall reside. In actions against justices of the peace, the venue must be laid in the county where the act complained of was committed. 11 & 12 Vict. c. 44, s. 10. If, since the division of the county of Lancaster (by 3 & 4 Will. IV. c. 71, s. 4), the venue in such an action be laid in "the southern division," but it appear that the cause of action arose in "the northern division," the defendant will be entitled to a verdict. Atkinson v. Hornby, 2 C. & K. 335.

The general issue to an action for false imprisonment is, Not Guilty. By 21 Jac. I. c. 12, s. 5, in an action upon the case, trespass, battery, or false imprisonment, against a mayor, bailiff, constable, &c. for anything 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. By 42 Geo. III. c. 85, s. 6, the provisions of the preceding statute were extended to all persons holding a public employment or office, civil or military, who, by virtue of such employment, have power to commit persons to safe custody. By 11 & 12 Vict. c. 44, s. 10, justices of the peace have the like privilege. But by 21 Pl. R., T. T. 1853, unless the defendant insert in the margin of such plea the words, "by statute," together with the year or years of the reign in which the act or acts were passed, and the chapter and section of each act, specifying whether they are public or otherwise, such plea is to be taken not to have been pleaded by virtue of any act of parliament. The plea of the general issue, "by statute," cannot be pleaded together with special pleas (r). Where a statute enables the defendant to plead the general issue, and give the special matter in evidence, the plea of Not Guilty, so pleaded, is not affected by the pleading rules of T. T. 1853; but puts in issue not only the defences peculiar to the statute, but all that would have arisen at common law (s). In other cases, matter of justification must be pleaded specially (t).

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.

(r) Legge v. Boyd, 1 M. & G. 898; see ante, p. 31.

(s) Ross v. Clifton, 11 A. & E. 631.

See Williams v. Jones, 11 A. & E. 643.
(t) Coomer v. Latham, 16 M. & W. 713.