PRICE

V.

MESSENGER

[ *161 ]

imprisonment and seizure of the sugar, a verdict was found of 301. for the former, and 70l. for the latter.

A rule having been moved for, calling on the plaintiff to shew cause why this verdict should not be set aside, it was granted as to the 70l. the Court intimating an opinion that as to the 301. the verdict could not be disturbed.

Shepherd and Best, Serjts. now shewed cause:

The main objection to the plaintiff's recovery is, that no demand was made of a copy of the warrant under which the defendants acted, pursuant to 24 G. II. c. 44. But no officer can avail himself of that objection, unless he shew that he has acted in obedience to the warrant of a magistrate, per Lord MANSFIELD, Dawson or Lawson v. Clarke, cited 3 Bur. 1767; whereas in this case the defendants exceeded the authority delegated to them by the magistrate. Where the warrant itself authorises others to act in a matter not within the jurisdiction of the magistrate, he is personally responsible; but where an officer exceeds his authority, the magistrate who gave that authority is not liable for such excess. Here the warrant was to seize stolen sugar, and the officers were bound at their peril to seize stolen sugar or none at all. In the case of Boote v. Cooper, cited 1 T. R. 535,† where the warrant was to enter and search for concealed goods, it was rightly held that the officer was justified in entering and searching, though no concealed *goods were found, that being no excess of authority; but in Entick v. Carrington, 2 Wils. 286, DE GREY, Ch. J. seems to have considered that an officer who, under a warrant to search for stolen goods, should seize the goods of the owner of the house, would not be within the protection of the 24 Geo. II. c. 44. Supposing the warrant itself to be legal, still the defendants have not executed it according to its true spirit; for they were not to decide wantonly that any sugar found in the plaintiff's house was stolen sugar, but to exercise a sound discretion. Now the sugar seized by the defendants appears to have been exposed in a situation in which no man would place goods subject to seizure. Though the warrant speaks of + Reported Esp. Cas. 135, by the name of Cooper v. Booth, in error in K.B.

PRICE

sugar deposited or concealed, yet the word "deposited," when applied to stolen goods, must mean deposited for the purpose MESSENGER. of concealment; especially as it is connected with the word "concealed."

Cockell, and Bayley, Serjts. contrà :

If the officers acted in obedience to the warrant, it is altogether immaterial whether the warrant were legal or illegal; for if legal the officers and the magistrate are both justified; if illegal the magistrate alone is responsible. It would be highly dangerous to allow the officer to exercise his judgment whether the warrant directed to him by the magistrate were good or not; it is his duty to obey. The warrant in this case only asserted that there was stolen sugar in the plaintiff's house, and ordered the officers to seize it; now it was impossible for them to ascertain whether the sugar they found was stolen or not, or how much of it was in that predicament.

LORD ELDON, Ch. J.:

The ground upon which I have formed my opinion in this case may be stated in a very few words. The public interest requires that officers who really act in obedience to the warrant of a magistrate should be protected. In such cases, therefore, the law has provided that the remedy of the party grieved shall be confined to the magistrate, as well where he has granted a warrant without having jurisdiction, as where the warrant which he has granted is improper. The statute provides that no action shall be brought against an officer for any thing done in obedience to any warrant of any justice of the peace, unless a demand hath been made of a copy and perusal of the warrant; and in that case, after compliance with such demand, any action shall be brought against such officer for any such cause as aforesaid, without making the justice a defendant, a verdict shall be given for the defendant, "notwithstanding any defect of jurisdiction in such justice;" and if such action be brought jointly against such justice, and *also against such officer, on proof of such warrant, the jury shall find for the officer "notwithstanding any such defect of jurisdiction as aforesaid." The Act therefore

[ *:62 ]

PRICE

v.

MESSENGER.

takes it for granted, that an officer may be said to act in obedience to the warrant of a justice of the peace, though such justice had no jurisdiction, and though the warrant be an absolute nullity. For it is as much a defect of jurisdiction, if the justice grant an improper warrant in a case over which he has jurisdiction, as if he had no jurisdiction over the case at all. The only question therefore is, Whether the act of the officer were done in obedience to any warrant of any justice of the peace? And considering the nature of the protection intended to be given to officers by this act, I think it reasonable to say that the defendants in this case acted in obedience to the warrant within the meaning of the Legislature. If this be so, it is sufficient for the defendant to say that no demand of a perusal and copy of the warrant was made, whether that warrant on production would have afforded a defence or not. It was not agreed by the plaintiff's counsel whether the warrant itself were legal or illegal. Now suppose it to have been legal: the officer acted with as much precision in the execution of the warrant as the justice in granting it. If the information given to the latter was insufficient to enable him to describe the goods with certainty, the former was unable to ascertain with certainty what goods he was directed to seize. Then suppose the warrant to have been illegal, it was not competent to the defendant to judge of its legality. If he executed it in the only way in which it was capable of being executed, namely, by making it attach on all goods which fell within the description contained in it, he acted in obedience to it, and having done so, he is entitled to avail himself of the protection of the Act. Whether the warrant would have afforded a defence to the justice or not I shall give no opinion.

HEATH, J.:

The only question is, whether the constable acted in obedience to the warrant? Whether the warrant were legal or not, we are not called upon to decide. When this defendant seized the teas he was not acting in obedience to the warrant; but when he seized the sugars he was. The warrant, after stating that certain sugars had been stolen, and that there was reason to suspect that the same were concealed or deposited in the

plaintiff's house, directs the defendant to seize them. Under I'RICE these circumstances, he could not act otherwise than he has done. MESSENGET.

ROOKE, J.:

The defendant appears to me to have acted in obedience to his warrant, and therefore to come within the protection of the statute. If the warrant were illegal the plaintiff might have proceeded against the justice: but as he has chosen to abandon that remedy and to proceed against the constable, he is only entitled to a verdict for such damages as arose from that seizure which was not made in obedience to the warrant.

Verdict to be entered for the plaintiff for 30l. only.

[163]

ANDERSON v. PITCHER & Ux.

(2 Bos. & P. 164–172.)

A warranty to depart with convoy is not complied with, unless sailing instructions be obtained before the ship leaves the place of rendezvous, if by due diligence of the master they can be then obtained.

THIS was an action for money had and received to the use of the plaintiff by the defendant's wife, before her intermarriage with the defendant.

This cause was tried before Lord Eldon, Ch. J. and a special jury at the Guildhall sittings after Hilary Term, when the following case appeared in evidence:-On the 31st of October, 1795, the plaintiff underwrote a policy of insurance on the Golden Grove, at five guineas per cent., "at and from London to all or any of the West India islands, Jamaica and St. Domingo excepted, with leave to go to the place of rendezvous to join convoy, and warranted to sail from thence with convoy for the voyage." The ship having been lost soon after she sailed from Portsmouth, the plaintiff paid 284l. 5s. under the policy. To recover back that sum the present action was brought, the plaintiff being of opinion that the Golden Grove never received her sailing instructions, and therefore had not fulfilled the warranty to depart with convoy. It now appeared that the Golden Grove arrived at Spithead about nine o'clock in the morning of the 15th November, 1795; that she came round

1500.

May 26.

[164]

ANDERSON

V.

PITCHER.

[ *165]

under the care of the first mate, the captain himself being on shore at Portsmouth; that on the day preceding (the 14th) sailing instructions were delivered at Portsmouth to all such ships as applied regularly for them, and that the captain of the Golden Grove previous to her arrival made enquiry concerning sailing instructions, but found that they could not be obtained until the ship was actually in sight; that on the 15th of November, by day-light, Admiral Sir H. C. Christian, the commander of the convoy got under weigh, but had not entirely quitted the roadstead until about four o'clock in the evening; that when he got under sail he left the Trident frigate to bring up such vessels as did not weigh anchor with him, that about one o'clock the same day the captain of the Golden Grove repaired on board, and got under weigh, at which time the Trident had also got under weigh, and both the admiral's ship and the Trident had then proceeded so far, that it was clear the Golden Grove could not overtake the former soon enough for the captain to go on board that night, and it was even doubtful whether he could overtake the latter; that on the next day, between 10 and 12 o'clock in the forenoon, the captain of the Golden Grove, being then only a quarter of a mile from the admiral's ship, went on board her, and obtained sailing instructions; that soon afterwards the Golden Grove was lost, having been, from the time of her departure to that of the loss, under the protection of the convoy. Lord ELDON directed the jury, that although under some circumstances sailing instructions might be dispensed with, yet that this did not appear to be a case of that kind; that the Golden Grove did not appear to him to have departed from the place of rendezvous with convoy, since she had either not arrived time enough to obtain sailing instructions, or if she had arrived time enough, her captain had not used the necessary endeavours to obtain them before he sailed. The jury found a verdict for the plaintiff.

Early in this Term a rule nisi for a new trial was obtained, in support of which, affidavits of the defendant's attorney, and of several naval men, to the following effect, were filed :-That the point upon which the verdict had proceeded was a matter of surprise upon the defendant, it having been understood that the