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that he is discharging his duty, and that he is acting at the very time in obedience to the warrant of a Magistrate, he was entitled to the protection of that section." Here, however, though the defendants were expressly told that some of the cloths belonged to the plaintiff, and that it could be satisfactorily proved to them, one of them said they should be taken, whether right or wrong. He therefore confessed that he was guilty of an error in seizing them. The principle on which the case of Parton v. Williams was decided was, that the eighth section of the statute was wholly independent of the sixth, and that in order to bring an officer within the latter clause, it was necessary that he should act most strictly in obedience to his warrant. But there it does not appear that the defendants were commanded by the warrant to take any specific goods, as here, but merely that they were to take the goods of a particular person, which is a most material distinction; and in Postlethwaite v. Gibson (a), Lord Kenyon expressly decided, that "the eighth section of the statute 24 Geo. 2. applied to cases only where there has been a warrant granted by a Justice of Peace, and the constable is acting under it." The words "acting as aforesaid" in that section, must therefore have reference to those in the sixth, viz. "acting in obedience to the warrant of a Justice;" and if a party merely act in the character of constable, without paying the strictest obedience to the terms of such warrant, he does not fall within the protection of that statute.

Cur, adv. vult.

Lord Chief Justice DALLAS now delivered the judgment of the Court, as follows:-This was an action of trespass. The first count of the declaration was for breaking and entering the plaintiff's house and seizing and taking his goods, and the last was confined to the seizing the goods generally.

(a) 3 Esp. 227.

Some of the defendants acted as constables, and others in their aid, and at the trial, they produced a warrant of a Justice of Peace, requiring them to search the plaintiff's house for some black kerseymere cloth which had been lately stolen, and suspected to be concealed there, and authorising them to seize the same. They accordingly searched and seized cloths of other colours, which did not strictly fall within. the description of that in the warrant. The action was not brought within six calendar months from the time of the seizure, and the question is, whether the defendants are entitled to the protection of the statute 24 Geo. 2. c. 44. s. 8? And we are of opinion that they are. The case of Parton v. Williams is in point, where the defendants, acting as constables under a warrant commanding them to take the goods of A., took the goods of B. by mistake, and the Court of King's Bench held that they were entitled to the protection of the eighth section of the statute, and that the action was ill brought, after the lapse of six calendar months. All the Judges there decided, that that section was intended to afford to constables some benefit not given by the sixth, observing, that the latter protected them absolutely, and at all times, against any action for acts falling within it, viz. " acts done in obedience to a warrant," and that it was nugatory to limit actions to six months by the eighth section, which, by the sixth, could not be brought at all. In that case, however, it does not appear that the decision of this Court in Price v. Messenger was adverted to, where the defendants, having a warrant to search for and seize stolen sugar, seized certain sugar which was not stolen, and also some nails and tea; and Mr. Justice Heath is reported to have said, that "when the defendants seized the teas, they were not acting in obedience to the warrant." Still, the question did not arise there, as the defendants had suffered judgment by default as to the tea and nails, and the argument and decision of the Court were confined to the sixth section of the statute, namely, that the defendants acted in obedience to the warrant, and

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were within the protection of that section, although the
sugar seized by them, turned out not to have been stolen,
and no question whatever arose on the eighth section of the
statute. The only remaining case that militates against
Parton v. Williams, is that of Postlethwaite v. Gibson; that,
however, was a mere Nisi Prius decision, and the plaintiff
was ultimately nonsuited, so that there was no opportunity
of bringing the question before the Court.
That case,
therefore, was properly disregarded in Parton v. Williams.
There, the Court did not expressly decide that the eighth sec-
tion applied to all cases of constables acting as such; but it
may, however, be inferred from their reasoning, that they
thought so, and we are of opinion, that such is the true con-
struction. The words " as aforesaid" there, refer either to
those immediately preceding, namely," for any thing done in
the execution of his office", to which extent parties are pro-
tected by that section, and it would be strange if constables
were not equally protected;—or else, they are explanatory only
of the word "person"-and the words " or person acting as
aforesaid" in that section, means any person, not an officer,
acting in aid of such officer. The cases of Godin v.
Ferris (a), and Saunders v. Saunders (b) shew, that where a
statute fixes and limits a time within which an action must
be brought against an officer for any thing done by him in
the execution of his duty, the time must be computed
from the original seizure of the goods, and there is no dis-
tinction, whether such action be brought in trespass, or in
trover. Here, however, the defendants were protected by
the eighth section of the statute, although they might not
be by the sixth, for the former was intended to apply to
cases where the latter does not, and to give an additional
benefit to officers acting under a warrant of a Magistrate.
The case of Theobald v. Crichmore is in point to shew,
that although an officer might exceed his authority in the

execution of a warrant of distress, still, that he was not liable to an action unless it were commenced against him within the time, as specified in the statute,

Rule refused,

Mr. Serjt. Hullock, amicus curia, in the course of Mr. Serjt. Pell's argument, mentioned the case of Field v. Croft, from the Home Circuit, which was decided in the King's Bench, within the present Term, on a motion for a new trial, and the Court acted on the authority of Parton v. Williams, and held, that a party who acts as constable at the time, is protected by the eighth section of the statute 24 Geo. 2, although he may not act in obedience to the warrant of a Magistrate. It seems, therefore, that if a constable were to act in his character as such, even without a warrant, that an action must be brought against him within six calendar months from the time of the act complained of (a).

(a) In Alcock v. Andrews (*), Lord Kenyon held, that a constable acting colore not virtute officii, was not protected by the eighth section of 24 Geo. 2, from actions brought after the expiration of six months; but in Graves v. Arnold (†), which turned on the construction of a similar clause in a local act of parliament, viz. 50 Geo. 3. c. 149, Sir James Mansfield held that the constable was protected, as he was acting under the colour of the statute, and believed himself to be exercising the powers conferred by it, although by virtue of the statute he might not be justified in what he did.

(*) 2 Esp. 542, (n.)— (†) 3 Campb. 242.

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Monday,
May 14.

WRIGHT v. AGER.

In an action of THIS was an action of debt, to recover penalties from debt, to recothe defendant, a sheriff's officer, for extortion, in having ver penalties against a she- taken 57. 10s. more than he was entitled to, on the arrest rifi's officer, of the plaintiff. The declaration contained several counts, founded on the 32 Geo. 2. c. 28.

for extortion,

under the

32 Geo. 2. c.28. the Court will not allow the declaration to

be amended,

by inserting

the 23 Hen. 6.

c. 9.

Mr. Serjt. Blosset now moved to amend it, by adding new counts, to be framed on the 23 Hen. 6. c. 9. It apnew counts on peared, that two Terms had elapsed since the return of the writ; but the learned Serjeant submitted, that as the cause of action would be substantially the same, by the mere introduction of those counts, the amendment might be allowed; and he referred to the case of Freen v. Cooper (a).

But the Court observed, that this was a penal action; that the statute 23 Hen. 6. was nearly obsolete; and that the plaintiff having made his election to sue on the 32 Geo.2. he must now abide by it.

The learned Serjeant, therefore, took nothing by his

motion.

(a) 2 Marsh. 59.