stable. The warrant being void, the Magistrates cannot be considered to have authorized the arrest of the plaintiff in London. The backing of a warrant which is bad cannot have the effect of making the original Magistrates liable. If a Magistrate issues an illegal order within his county, can the backing it extend the consequences of the illegality beyond the county? The present case is that of an agent exceeding his authority, under which circumstances the principal is not liable. If the Lord Mayor of London had refused to back this illegal warrant, could he have been compelled by a mandamus to back it? He could not. This shews, therefore, that The King v. Kynaston is not an authority in favour of the plaintiff. Basten v. Carew (7), Carratt v. Morley (8), and Mould v. Williams (9), are in point. Lastly, the plaintiff is entitled to nominal damages only.

Bramwell, in support of the rule on behalf of Cooper, the constable.-The warrant is good, and the constable is not liable. The statute 24 Geo. 2. c. 55. supposes that warrants will be executed out of the county in which the Magistrate has jurisdiction, and that the original Magistrates may be sued for what is done out of the county. In the present case the Magistrates had jurisdiction in Sussex by virtue of their commission, and by the statute relating to the backing of warrants, they had jurisdiction in any place where the warrant was backed. The constable, therefore, is not liable. Then, supposing the warrant to be bad, and the Magistrates to be liable, still the constable is not; secondly, there has not been a proper demand of the warrant. By the statute 24 Geo. 2. c. 55. there are three persons who may make the demand, and it is to be signed by the party who makes it. That was not done in the present case, for the demand was signed by the attorney, and made by his clerk.

[ALDERSON, B.-The clerk who made the demand had authority to make it, and also to receive any answer.]

Thirdly, the plaintiff having obtained a copy of the warrant from the police, the exigency of the statute 24 Geo. 2. c. 44.

(7) 3 B. & C. 649 ; s. c. 3 Law J. Rep. K.B. 111. (8) 1 Q.B. Rep. 18; s. c. 10 Law J. Rep. (N.s.) Q.B. 259.

(9) 5 Q.B. Rep. 469.

s. 6. was satisfied. A statute is not to be construed strictly like a power; any substantial compliance with its provisions is sufficient. What purpose could it serve the plaintiff, who had already in his possession a copy of the warrant, to obtain a second copy from the hands of the constable? Fourthly, where the Justices are sued for the execution by the constable of an illegal warrant, the constable himself is no longer liable. The words of the last clause of the 6th section are these: "and if such action be brought jointly against such Justice and constable, &c., then on proof of such warrant the jury shall find for the constable," &c.; the literal meaning of these words bears out the construction contended for, and it is only reasonable that the constable should be excused from all liability, when the plaintiff has by any means been enabled to bring his action against the Justices. Lastly, with respect to the damages, the only joint act of trespass by these defendants was the original arrest, and as at that time the plaintiff did not pay any money, he can recover in this action nominal damages only.

POLLOCK, C.B.-I am of opinion that this rule should be discharged. The opinion I came to at Nisi Prius has been supported by a reference to the statutes, upon which the questions raised at the trial chiefly depend. In the first place, it is clear that the warrant was a bad warrant, and could afford no justification for the arrest under it. The statute of the 43 Eliz. c. 2. s. 4, which gives the power to levy the arrears of poor-rates by distress and sale of the defaulter's goods, and in the event of such distress being insufficient, to commit him to the county gaol, does not mention costs; and the subsequent statute, the 18 Geo. 3. c. 19, which does give power to award costs, does not warrant the committal of the offender generally until such costs shall be paid, but only for a definite period, not exceeding one month. There is no power under either of these statutes to enforce the payment of costs in the manner authorized by the warrant in this case. But it has been argued that, admitting the warrant to be bad, the arrest being out of the county of Sussex, the Justices who issued the warrant are not liable; and this makes it necessary to consider the effect of "backing" a warrant.

This is merely a ministerial duty, and the Magistrates, therefore, who originally issued. an illegal warrant, are responsible for the arrest made subsequently under it, although the Lord Mayor, in the meanwhile had, by backing the warrant, authorized its execution within the limits of the city of London.

With respect to the objections raised on behalf of Cooper, the constable, it has been, in the first place, contended that the demand of the perusal of the warrant, although signed by Steel, the attorney for the plaintiff, was made by his clerk, and was, therefore, not sufficient: but that is a fallacy. Whoever

the person may be who, under this statute, serves the demand at the constable's place of abode, such demand is that of the person whose name is signed to the document. The demand and its service therefore in this case were perfectly regular. In the next place it has been said, that inasmuch as a copy of the warrant had been obtained on behalf of the plaintiff prior to the demand being made, the constable was excused from giving a copy. But in answer to this, I may observe that the permission to make a copy of the warrant was no act of Cooper's, nor was he a party to it in any shape or way. When, therefore, a regular demand was subsequently made upon him, which he refused to comply with, he cannot be said to have complied with the requisites. of the statute. It was urged, in the third place, that wherever the constable is sued jointly with the Justices who issued the warrant, upon such warrant being proved, the constable is entitled to a verdict, and that if another construction had been intended, the legislature would, in the last clause of the section, have used the word "but" instead of "and"; but it appears to me that that branch of the clause clearly refers to the case where the demand for a perusal of the warrant has been complied with by the constable, the words "such action" referring to an action brought after a" demand and compliance therewith." With respect to the amount of damages, I wish the law would allow us to give the defendants the benefit of the amount which was rightfully due from the plaintiff'; but we cannot escape from the position that if a debtor be wrongfully arrested and under

the duress of such imprisonment compelled to pay a debt justly due from him, such amount may be recovered back by action. Here the warrant was bad altogether; the plaintiff, therefore, was entitled to recover all the money which he was compelled to pay by reason of the arrest and imprisonment under it.

ROLFE, B.-I am of the same opinion. Two rules have been obtained, one on behalf of the Magistrates, and the other on behalf of the constable, and I think that each should be discharged. The imprisonment of which the plaintiff complains was the act of the three defendants, and they are one and all responsible for it, unless they can shew that they were justified in making the arrest. The justification set up was under a warrant which authorized the arrest and committal of the plaintiff to the house of correction for the county of Sussex until he should have paid the sum of 18l. 5s. 6d. Now, if this be a larger sum than that for which the Magistrates could compel payment in this manner, the effect is to make the warrant bad altogether; and that it is a larger sum is clear, because the statute of Elizabeth does not give costs. The statute of the 18 Geo. 3. c. 19, which does give costs, contains special provisions for their enforcement, but gives power to commit, not generally until the amount shall have been paid, but only for a limited period. Secondly, it has been contended that the warrant was only executable in Sussex, and that the Magistrates were not liable for its execution out of their jurisdiction; but if a bad warrant, what is there to make it executable only in Sussex? In such case it only amounts to an authority to the constable to take the plaintiff, without any right to do so. But in truth a Magistrate who issues a warrant must be taken to know the law, that such a warrant may be enforced in any county of England upon its being indorsed in the manner required by the statute. Such indorsement is merely ministerial, and in no measure lessens the responsibility incurred by issuing the warrant in the first instance. With respect to the amount of damages, I should be very glad if we had the power to reduce them; but it appears to me that in point of law the plaintiff was entitled to recover back as damages

the full amount he was compelled to pay in order to escape further imprisonment under a warrant which turns out to be altogether bad. With respect to the points made on behalf the constable, I quite agree in thinking that there is nothing in any of them.

PLATT, B. For the reasons which have already been given by the Court, I agree in thinking that this was a bad warrant. As to the point raised, that the Justices were not liable because the warrant had been indorsed by the Lord Mayor, it seems to me that as that Magistrate was bound to do so upon being satisfied of the genuineness of the signatures of the Justices to the warrant, such indorsement is merely a ministerial act on his part, and that the effect of it was,

for the purpose of executing the warrant, to make the city of London part of the county of Sussex, but in no way whatever to abridge the authority of the Justices who issued the warrant. As to the amount of damages, no reason has been given which satisfies my mind that they ought to be reduced. What portion of the imprisonment is attributable to the non-payment of the larger sum or of the less? The law is clear that if by an unlawful act a party extracts from another a sum of money, whether legally due or not, he must pay back the full amount so extracted. Upon the other points in the case I entirely concur with the observations which have fallen from the other members of the Court.

Rules discharged.

Appeal-Quashing order of removal for "deficiency
of examinations" equivalent to general quashing;
and upon appeal against subsequent order re-
spondents not estopped thereby, but either party
may shew grounds on which judgment proceed-
ed; and former order having been quashed by
judgment of Queen's Bench, evidence of grounds
of their decision admissible. Examinations stated
that pauper rented tenement of above 101. for
a year, and paid rent during his tenancy. On
appeal, Sessions confirmed order, subject to case
on the point, whether examinations were defective
for not shewing that rent paid by pauper; and
case directed that if Court of Queen's Bench
considered objection fatal, order be quashed "for
deficiency of examinations." Queen's Bench, after
argument, quashed order of Sessions and order
of removal. This a decision on point of settle-
ment, and conclusive upon appeal against subse-
quent order, 1

If examination set up two distinct grounds of
removal, and a document applying exclusively
to one of them, referred to in examination, and
produced before removing Justices, is omitted to
be sent by removing parish, with copy of order,
respondents cannot give evidence at sessions in
support of either ground of removal, 6

---

After entry and respite of appeal against
order of removal, Sessions may further respite
though no notice or grounds of appeal have been
served on respondents; and Sessions having
refused to further respite, though willing in their
discretion to have done so, but that they doubted
as to their power,-mandamus granted for hear-
ing appeal, 45

By Licensing Act, 9 Geo. 4. c. 61. s. 27,
every person who thinks himself aggrieved may
appeal to next General or Quarter Sessions,
unless holden within twelve days, and in that
case to next subsequent Sessions, and not after-
wards, and such Sessions are to hear and deter-
mine matter of appeal, and make such order
therein, with or without costs, as to Court shall
seem meet; judgment to be final and conclusive.
Order of Sessions under this act purported to be
made at General Sessions on 5th of May, and

continued by successive adjournments until 22nd,
and recited that, at General Quarter Sessions in
April then last, W. B. exhibited his petition of
appeal against refusal of certain Justices to grant
him a licence, at which said Quarter Sessions said
appeal, and hearing and determination thereof,
were adjourned unto "this present General Ses-
sions," and proceeded to adjudge that, "upon
hearing, &c. Court did dismiss appeal, and affirm
judgment of Justices, and order and adjudge that
W. B. should pay to said Justices 161. 19s. 2d. for
costs, &c." In fact, at April sessions appeal was
heard, judgment of Justices affirmed, and licence
refused: -Held, that act confined the power of
adjudicating on appeal to April sessions; and
order made at May sessions was without juris-
diction. Semble-That, at April sessions, appeal
had been disposed of, and order bad on that
ground, 70

Under 8 & 9 Vict. c. 10. s. 6. mother of bas-
tard a competent witness to prove she had due
notice of appeal under 7 & 8 Vict. c. 101. s. 4.
Sunday excluded in computing the twenty-four
hours within which putative father must give
notice of appeal against order of affiliation, under
7 & 8 Vict. c. 101. s. 4, 111

The only settlement disclosed by examina-
tions was a birth settlement of pauper's late hus-
band; one ground of appeal stated generally
that "the pauper was not at the time of the order,
nor was the late husband at the time of his de-
cease, legally settled" in appellant parish, but
no ground of appeal traversed fact of his being
born there, or alleged he was born elsewhere.
Respondents bound to give evidence of birth
settlement in appellant parish, 148

See Highway Act. Lunatic. Middlesex
Sessions. Order of Removal. Order of Sessions.
Apprenticeship-Execution of indenture of, by A. B,
churchwarden of township of L, and by C. D, one
of overseers of same township, under 54 Geo. 4.
c. 107. s. 2, sufficient. Indenture, duly allowed
by two Justices under 56 Geo. 3. c. 139. s. 1,
recited that it was made by virtue of an order
under hands and seals of A. L. and J. N. C, Jus-
tices of the Peace in and for the county, &c.,

made in pursuance of statute in such case made
and provided, and bearing date, &c.,—good pri-
mary evidence of order for binding. Allowance
of indenture by Justices under 56 Geo. 3. c. 139.
s. 1, need not appear on face of it to be made
within their jurisdiction, 25
Assault-Where party, summoned to appear before
two Justices, for an assault, appeared, and
pleaded not guilty;" and prosecutor withdrew
complaint, and defendant was discharged,-This
a hearing and dismissal, which entitled defendant
to certificate that charge had been dismissed as
not proved, under 9 Geo. 4. c. 31. s. 27; and
plea to action of trespass for the assault stating
those facts, and that certificate had been granted,
good under 28th section, 67

See Conviction.

Attachment. See Subpoena.

Baron and Feme. See Bastard.
Bastard Mother of, competent witness to prove
notice of appeal against order of affiliation. Sun-
day excluded in computing time of notice, 111

Whether putative father appears in person
or by attorney before Justices, order of bas-
tardy ought to state that evidence was given in
presence and hearing of putative father or his
attorney, as case may be; and if there is any
special reason for omitting the statement after
appearance, it should be suggested on face of
order, 125

Order of maintenance on putative father of
bastard child of married woman valid, though
7 & 8 Vict. c. 101. in language applies to single
women only, 168

See Appeal.

Beer Acts Conviction under, for permitting
drunkenness and other disorderly conduct in
licensed house need not be by two Justices of
division within which house situated. It need
not allege that conviction took place within three
calendar months after offence. Offence properly
stated to be contrary to form of statutes. It need
not state names of persons permitted to be drunk,
or allege that they were unknown. Offence
charged to have been committed was not double.
It need not set out the licence, nor ascertain the
costs, nor be on parchment, 183
Bigamy-The 5 & 6 Will. 4. c. 54. renders abso-
lutely void all marriages afterwards solemnized
between persons within prohibited degrees, and
which were previously voidable only by sentence
of ecclesiastical court pronounced during life of
both parties. Therefore, marriage with deceased
wife's sister contracted after passing of act abso-
lutely void; and proof of subsequent marriage with
another woman during life of deceased wife's
sister will not support an indictment for bigamy.
"Prohibited degrees of consanguinity and affinity"
in 5 & 6 Will. 4. c. 54. refer to decisions of
ecclesiastical courts at that time. Degrees
prohibited by God's law" in 32 Hen. 8. c. 38. are
those enumerated in 25 Hen. 8. c. 22. and
28 Hen. 8. c. 7, 33

Borough Rate. See Gaol. Prisoner.

Caption. See Examinations.

Central Criminal Court. See Indictment.

66

Certiorari-

-

though taken away from Court of
Queen's Bench, by Excise Act, 7 & 8 Geo. 4.
c. 53, may still issue if conviction obtained by
fraud, 153

Chargeability. See Notice of Chargeability.
Charity. See Parish Lands.

Church Rate. See Indictment. Mandamus. Rate.
Churchwardens and Overseers. See Parish Lands.
Commitment-Warrant of Justices for the apprehen-
sion and committal of a party until payment of a
sum consisting of arrears of poor-rate and of costs
is altogether bad; and trespass lies against Justices
and constable. Party arrested under such war-
rant may recover as damages whole amount paid
by him, under protest. The mere fact of Justices
who issued warrant being sued jointly with con-
stable, will not entitle latter to a verdict, last
clause of 24 Geo. 2. c. 44. s. 6. only applying to
actions brought after demand of perusal and copy
of warrant has been complied with by constable.
Under 24 Geo. 2. c. 44. demand of perusal and
copy of warrant under which constable acted,
which is in writing and signed by plaintiff's attor-
ney, sufficient, although it has been left at con-
stable's place of abode by a person other than the
attorney. When, previous to such demand be-
ing made, plaintiff has by other means obtained
copy of warrant constable not excused complying
with demand, if he seek to avail himself of pro-
tection given by that statute. Backing such
warrant by magistrate, under 24 Geo. 2. c. 55,
merely ministerial, and Justices who issued
warrant responsible under it, although made in
different county, 189

See Master and Servant.

Constable.
Conviction

See Commitment.

Officer of Excise has some discretion--
it may be an absolute discretion as to mode
of returning grain into couch-frame under 7 & 8
Geo. 4. c. 52. s. 33. and 1 Vict. c. 49. s. 5, so as
to ascertain whether there is increase in gauge;
and conviction right where increase found by
mode of returning grain, which did not appear
to be improper, 9

Justices are empowered by 9 Geo. 4. c. 31.
s. 27. to convict of assault upon complaint,
penalty to be paid to some one of overseers of
poor, or to some other officer of poor of parish,
&c. in which offence committed, to be by such
overseer or officer paid over to general use of
rate of county in which such parish, &c. shall
be situate.-Conviction which ordered party to
pay fine to treasurer of county, bad, and Ma-
gistrates liable to action at suit of party im-
prisoned, 79

Where maltster by collusion, and to exonerate
himself from penalties under revenue laws, pro-
cured conviction of his servant for an offence he
had himself committed, and certificate of two
Justices operating as discharge of himself,—
Court, upon certiorari, quashed conviction, 153
See Beer Acts. Master and Servant.
Corporation-Liability of borough of Birmingham
to costs of maintenance of prisoners in county
gaol (see Prisoner), 56

Liability to rate for purchase of gaol (see
Gaol), 57

Costs-At hearing of respited appeal against poor-