hends B, or takes the goods of B(t); nor if he exceeds the authority given him by the warrant and commits any excess, such as remaining longer in a dwelling-house than he was legally authorized to remain, or breaking open doors and windows which he was not authorized to break open(u). But whenever the officer has acted in obedience to the warrant, he secures his indemnity by complying with the requirements of the statute, although the warrant may be illegal or improper, or may have been granted by a magistrate who had no jurisdiction or power to grant it(x). If the officer loses the protection of the statute, he must justify under the justice's warrant(y). By the 11 & 12 Vict. c. 43, s. 19, constables are authorized to execute warrants out of their districts, provided they are executed within the jurisdiction of the justice granting or backing the same. But the constable is not bound to execute a warrant out of his own district(z). A warrant of distress for rates directed to two persons for execution, may be executed by one of them alone(a). 1016 Excess of authority on the part of constables and officers-Handcuffing unconvicted prisoners.-If a constable abuses the legal authority conferred upon him by detaining a prisoner an unreasonable time without taking him before a magistrate, or by unnecessarily handcuffing him, he becomes a trespasser ab initio, and cannot protect himself under the warrant. A constable or peace-officer has no right to handcuff an unconvicted prisoner unless he has attempted to escape, or except it be necessary in order to prevent his escaping. "Such a degree of violence and restraint," observes Bayley, J., "upon the person cannot be justified, even by a constable, unless he makes it appear that there are good special reasons for his resorting to it "(b). 1017 Abuse of a search-warrant.—If a constable armed with a search-warrant searches the wrong house, or stays an unreasonable and unnecessary time in a house he is authorized to search, or uses any unnecesary violence in the execution of the warrant, or seizes things not specified in the warrant, and which are not likely to furnish evidence of (t) Money v. Leach, 3 Burr. 1768. Kay v. Grover, 7 Bing. 312; 5 M. & P. 145. Hoye v. Bush, 1 M. & Gr. 775; 2 Sc. N. R. 92. (w) Peppercorn v. Hofman, 9 M. & W. 628. Ball v. Oakley, 2 M. & S. 259. Foster's Discourse of Homicide, p. 319. (z) Atkins v. Kilby, 11 Ad. & E. 784. Price v. Messenger, 2 B. & P. 158. Law J., M. C. 159. (y) Read v. Coker, 13 C. B. 859. (z) Gimbert v. Coyney, M'Clel. & Y. 469. (a) Lee v. Vessey, 25 Law J., Exch. 271. See Sir Michael Reg. v. Davis, 30 (b) Wright v. Court, 6 D. & R. 625; 4 B. & C. 598. Griffin v. Coleman, 4 H. & N. 265; 28 Law J., Exch. 134. the identity of the articles stolen and mentioned in the warrant, or to support a charge of felony, he becomes a trespasser, and is liable to an action for damages(c). SECTION III. REMEDIES FOR WRONGS DONE UNDER COLOR OF CONVICTIONS AND WARRANTS OF JUSTICES. 1018 Replerin of chattels distrained under warrant of justices." Though in ordinary practice," observes Parke, B., "the remedy by replevin is applied only to a distress for rent, yet it is at common law applicable in all cases where goods are improperly taken(d); and I find no satisfactory authority to show that it will not lie where goods are improperly taken under a warrant of a justice of the peace. In some cases, no doubt, the court will interfere to prevent a replevin, to save its process from being defeated. The rule is correctly stated in Chief Baron Gilbert's treatise on Replevin, p. 138, where it is said, 'If a superior court award an execution, it seems that no replevin lies for goods taken by the sheriff by virtue of the execution, and if any person shall pretend to take out a replevin and execute it, the court would commit them for contempt for attempting to defeat the execution, and would punish the sheriff by attachment.' But Chief Baron Gilbert also says, 'that in cases in which the court has no jurisdiction, the goods may be replevied.' If, therefore, goods have been seized under a justice's warrant, and the justice had no jurisdiction to make the warrant, the goods so seized may be replevid "(e). "It is true," further observes Alderson, B., "that replevin will not lie for goods seized under the judgment of a superior court; for if you replevied on the first judgment, you could do so on the judgment upon that also, and so there would be replevin on replevin ad infinitum. It is different in the case of an inferior jurisdiction, which is to be set right by the superior" (f). (c) Crozier v. Cundey, 6 B. & C. 232 ; 9 D. & R. 224. Burns, Justice, SEARCH-WARRANT. (d) Mellor v. Leather, 1 Ell. & B1, 619. (e) George v. Chambers, 11 M. & W. 159. Gay v. Mathews, 32 Law J., M. C. 58. Pease r. Chaytor, ib. 121. Morrell v. Martin, 3 M. & Gr. 590. Parke, B., Jones v. Johnson, 5 Exch. 875. (ƒ) 11 M. & W. 161. As to proceedings in replevin, see ante, pp. 671-672. 1019 Of actions against justices.-By the 11 & 12 Vict. c. 44, s. 1, it is enacted, that every action thereafter against a justice of the peace, for any act done by him in the execution of his duty with respect to any matter within his jurisdiction, shall be an action on the case as for a tort, and in the declaration of the cause of action it shall be expressly alleged and proved at the trial that the act was done maliciously, and without reasonable and probable cause(g). Also (s. 2), that for any act done by a justice of the peace in a matter of which by law he has not jurisdiction, or in which he shall have exceeded his jurisdiction, any person injured thereby, or by any act done under any conviction, or order made, or warrant issued, by such. justice in any such matter, may maintain an action against such justice as before the passing of the Act, without proving that the act was done maliciously, and without reasonable and probable cause(): but no such action shall be brought for anything done under such conviction or order, until after the conviction shall have been quashed, either upon appeal or upon application to the Court of Queen's Bench: nor shall any such action be brought for anything done under any warrant which shall have been issued by such justice to procure the appearance of a party before him, and which shall have been followed by a conviction or order in the same matter, until after the conviction or order shall have been quashed; or if such last-mentioned warrant shall not have been followed by any such conviction or order, or if it be a warrant upon an information for an alleged indictable offence, nevertheless, if a summons was issued previously to such warrant, and served upon the party, either personally or by leaving the same for him with some person at his last or most usual place of abode, and he did not appear according to the exigency of the summons(i), in such case no action shall be maintained against such justice for anything done under such warrant. 1020 When the action is brought in respect of things done without jurisdiction, or in excess of jurisdiction, therefore, as where a warrant is made or an order granted, which the justice had no authority to make or grant, and the warrant or order has been enforced, and any person has been imprisoned or his goods have been seized under it, an action for a trespass is maintainable against the justice(k). But before such action is (g) Burley v. Bethune, 5 Taunt. 583. (h) See Midelton v. Gale, 8 A. & E. 155. Pease v. Chaytor, supra. An appearance by counsel or attorney is a sufficient appearance. Bessell p. Wilson, 1 Ell. & Bl. 496. Leary v. Patrick, 15 Q. B. 272. Lawrenson v. Hill, ante, p. 852. commenced notice of action must be given (post, p. 872), and the con viction or order must be quashed. 1021 When the action is brought for a malicious conviction, commitment, or distress, or a malicious abuse by a magistrate of the functions of his office, it is not necessary to get the conviction quashed before bringing the action, but notice of action must be given, and the action must be brought within the time limited by the statute, and proof must be given that the magistrate acted corruptly or maliciously, and had no reasonable or probable cause for convicting or making the order(). Where an information was laid before a justice, upon which he convicted and awarded a penalty and costs, and ordered them to be levied by distress, and so far pursued his jurisdiction, but he then exceeded it, by adding an alternative that the plaintiff should be put in the stocks in case the penalty and costs were not paid or raised by distress, and the plaintiff's goods were seized under a distress, but the plaintiff was not put in the stocks, and the conviction was afterwards quashed, and an action was brought against the justice for the distress, it was held that the justice was entitled to the protection afforded by the first section of the statute, and could not be treated as a trespasser. "It cannot be doubted," it was observed, "that the justice had jurisdiction in everything except the alternative order, and the action is brought, not for putting the plaintiff in the stocks under it, but for doing that which the defendant might have justified if he had drawn up his conviction in proper form. The construction of sect. 2 of the statute must be so controlled by sect. 1 as to be consistent with it; and that is done by so construing sect. 2 as to confine its application to cases in which the cause of action arises from the excess of jurisdiction, as it would have done in this case, if the plaintiff had been put in the stocks, and had brought his action for that "(m). 1022 Effect of the existence of a power of appeal on the right to bring an action. It does not follow that because a plaintiff had a power of appeal and failed to exercise it, that he is thereby precluded from having recourse to the ordinary remedy by action to try the right. There is a great distinction in this respect between cases where there was jurisdiction to convict or to make an order and issue a warrant, and the aggrieved party had a ground of appeal against the conviction or order made with jurisdiction, and the case where there was no jurisdiction to convict or to make the order, and so no juridiction (7) Kirby v. Simpson, 10 Exch. 367; 23 Law J., M. C. 165. See post, p. 876. (m) Per Coleridge and Earle, JJ.; Barton v. Bricknell, 13 Q. B. 393; 20 Law., M. C. 1. Lawrenson v. Hill, ante, p. 835. to issue the warrant. "If, in the first instance, the court has gone beyond its jurisdiction, the Act is void. The party aggrieved may, if he pleases, appeal, because excess of jurisdiction is as much a ground of appeal as a merely erroneous decision; and if the court of appeal erroneously confirms the act of the court below, it may be that the party appealing cannot object to the want of jurisdiction in any collateral proceeding. His own act may estop him personally, but he is not bound to appeal, because he is at liberty to treat the act as void "(n). 1023 Objections by justices to actions against them in the county court.—In all actions against justices of the peace in the county court, the action must be brought in the court within the district in which the act complained of was committed; but no action can be brought in any county court against a justice of the peace for anything done by him in the execution of his office, if such justice shall object thereto(o). Where a justice of the peace, who had been sued in the county court for an act done by him in the execution of his office, gave notice that he objected to being sued in the county court, and afterwards applied for and obtained a writ of certiorari to remove the cause from the county court into the Court of Exchequer, it was held that this notice terminated the proceedings in the county court altogether, and therefore that the suit could not be removed into the superior court(p). 1024 Of setting aside certain actions brought against justices of the peace.— Provision is made by the 11 & 12 Vict. c. 44, s. 7, for setting aside proceedings in certain actions against justices of the peace, brought in defiance of the provisions of that statute. (See ante, pp. 869-70.) 1025 Limitation of actions against justices of the peace.-By s. 8 it is enacted, that no action shall be brought against any justice of the peace for anything done by him in the execution of his office, unless the same be commenced within six calendar months after the act complained of has been committed. The period of limitation runs from the termination, not from the commencement, of the wrongful act(q). Therefore, when a person has been wrongfully imprisoned under an illegal commitment, the time of limitation will run from the period of the termination of the imprisonment, and not from the time of the making (a) Churchwardens of Birmingham v. Shaw, 10 Q. B. 880; 18 Law J., M. C. 89. Pedley v. Davis, 10 C. B., N. S. 492; 30 Law J., C. P. 379. (0) 11 & 12 Vict. c. 44, s. 11. (P) Weston v. Sneyd, 1 H. & N. 703; 26 Law J., Exch. 161. |