that the warrant was illegal, provided he acted in obedience to it; as, where the goods were described as "stolen goods," and the officer took them though they were not in fact stolen. Price v. Messenger, 2 B. & P. 158. And, generally, a want of jurisdiction in the justices will not deprive the officer of the benefit of the statute. Atkins v. Kilby, 11 A. & E. 777. If the defendant carried the plaintiff to gaol by a circuitous route, yet it is no ground of action, provided the jury find it to be the most convenient. S. C. ib. Where overseers distrained for a poor rate and sold within four days goods in custody of the bailiffs of a landlord under a distress for rent, it was held, in an action by the landlord against the overseers, that no demand of a copy of the warrant was necessary; for the warrant could not authorise such sale. Whitley v. Roberts, M'Cl. & Y. 107.; Kay v. Grover, 7 Bing. 312. So, in an action against overseers for excessive distress for a poor rate, no demand is necessary. Sturch v. Clarke, 4 B. & Ad. 113.

The act extends only to warrants of justices of the peace, and not to a warrant granted by a judge of the King's Bench. Gladwell v. Blake, 1 C. M. & R. 636.

What actions are within the statute.] The act extends only to actions of tort; and therefore where an action for money had and received was brought against an officer who had levied money on a conviction which had been quashed, it was held that a demand of a copy of the warrant was not necessary. B. N. P. 24. But see Waterhouse v. Keen, 4 B. & C. 200. Replevin is not an action within the statute. Fletcher v.

Wilkins, 6 East, 283.

Evidence of demand.] The demand may be proved by the production of a duplicate original without a notice to produce; Jory v. Orchard, 2 B. & P. 39.; and it is sufficient if the demand be signed by the plaintiff's attorney. Ibid. Where the declaration does not charge the defendants as officers, the plaintiff need not, in the first instance, prove a demand of a copy of the warrant. If the defendants mean to justify under the warrant, that proof lies upon them, and when they come to that part of the case the plaintiff must prove a demand. Price v. Messenger, 3 Esp. 96. Where, in trespass, defendant justified by a special plea under a distress for a poor rate, and the question was a mere question of parochiality or not, the defendant, after admitting a demand of a copy, was held entitled to begin. Burrell v. Nicholson, 1 M. & Rob. 304. Where the warrant was in the hands of the gaolers, and the agent of the plaintiff made no objection to the copy when tendered, it was held that the perusal of the original was dispensed with. Atkins v. Kilby, 11 A. & E. 777. The demand need not specify the time within which it should be complied with; therefore where a copy was required “ within three days," this will not vitiate the demand. Collins v. Rose, 5 M. & W. 194.

If the constable refuse or neglect, for the space of six days, to comply with the demand, the constable may be sued as before the statute. But if he complies with the demand at any time before action brought, though more than six days after the demand, he will be within the protection of the act. Jones v. Vaughan, 5 East, 445.

Limitation of action.] By 24 Geo. 2. c. 44. s. 8., no action shall be

brought against any justice of the peace for any thing done in the execution of his office, or against any constable, headborough, or other officer or person acting as aforesaid (see s. 6., suprà, p. 568.), unless commenced within six calendar months after the act committed.

The object of this section differs from that of the sixth, being intended for the benefit of persons who intend to act right, but by mistake act wrong. Per Abbott C. J., Parton v. Williams, 3 B. & A. 333. And the officer is entitled to the protection of this section of the statute, provided he acts bonâ fide in his character of officer, and under a belief that he is discharging the duty with which he is invested. Per Bayley J., id. 338. Therefore, where some constables, under a warrant to search for black cloth which had been stolen, finding no black cloth took cloth of other colours, and carried it before a magistrate, refusing at the same time to tell the owner of the house searched whether they had any warrant to do so; it was held, that they were within this section of the statute, and that the action ought to have been commenced within six months. Smith v. Wiltshire, 2 B. & B. 619. So where 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 the action must be brought within six months. Parton v. Williams, 3 B. & A. 330. It was ruled by Lord Kenyon, in Postlethwaite v. Gibson, 3 Esp. 226., that a constable taking a person into custody on suspicion of felony, without a warrant, was not within the protection of this section; but this decision has been questioned in Parton v. Williams, 3 B. & A. 334., and Smith v. Wiltshire, 2 B. & B. 622. But there is no doubt that he is not within it where he acts without warrant and without view. Per Lord Abinger, C. B., Ballinger v. Ferris, 1 M. & W. 630. It was laid down by Lord Kenyon C. J. that where a constable acts colore offici, and not virtute offici, he is not protected by the statute; where the act committed is of such a nature that the office gives him no authority to do it, in the doing of that act he is not to be considered as an officer; but where a man, doing an act within the limits of his official authority, exercises that authority improperly, or abuses the discretion placed in him, to such cases the statute extends. Alcock v. Andrews, 2 Esp. 542. (n.) The true test, however, seems to be, whether he acts under an honest belief that he is discharging the duty of his office. See Parton v. Williams, suprà.

Evidence of arrest.] In actions against constables it sometimes becomes a question whether the evidence is sufficient to establish an arrest. Where the constable went with the warrant to the plaintiff's house and shewed it to him, and after some conversation the plaintiff attended the constable to the magistrate by whom the charge was dismissed, the constable having never touched the plaintiff, it was held that this was no arrest; for that the plaintiff went voluntarily before the magistrate. Arrowsmith v. Le Mesurier, 2 New Rep. 211. So where the officer told the party that he had a writ against him, to which the latter replied, Very well, I will come to you immediately," but kept his seat, and on the officer quitting the room made his escape, it was ruled by Abbott C. J. to be no arrest. Russen v. Lucas, R. & M. 26. But where the constable said to the plaintiff, "You must go with me," on which the plaintiff said, "he was ready to go," and went with the constable towards a police office, without being seized or touched, this was ruled to

be an imprisonment; and per Abbott C. J., "if a person send for a constable, and give another in charge for felony, and the constable tell the party charged that he must go with him, on which the other, in order to prevent the necessity of actual force, expresses his readiness to go, and does actually go, this is an imprisonment." Pocock v. Moore, R. & M. 321.; Chinn v. Morris, 2 C. & P. 361. The law on this point was thus laid down by Eyre C. J. in Simpson v. Hill, 1 Esp. 431.: "If the constable, in consequence of the defendant's charge, had for one moment taken possession of the plaintiff's person, it would be in point of law an imprisonment; as, for example, if he had tapped her on the shoulder and said, 'You are my prisoner,' or if she had submitted herself into his custody, such would be an imprisonment; but the merely giving her in charge, without taking possession of the person, where nothing more passes than merely the charge, is not by law a false imprisonment." In the following case the circumstances were held to constitute an imprisonment. The plaintiff appeared before the defendant, a magistrate, to answer the complaint of A. for unlawfully selling his dog. The defendant advised the plaintiff to settle the matter by paying a sum of money, which the plaintiff declined. The defendant then said, "He would convict the plaintiff in a penalty under the trespass act, in which case he would go to prison." The plaintiff still declined paying, and said he would appeal. The defendant then called in a constable, and said, "Take this man out, and see if they can settle the matter; and if not bring him in again, as I must proceed to commit him under the act." The plaintiff then went out with the constable, and settled the matter by paying a sum of money: it was held that this was an assault and false imprisonment for which trespass would lie; and which, as no conviction had been drawn up, the defendant could not justify. Bridgett v. Coyney, 1 M. & R. 211. Where a sheriff's officer, having a warrant to arrest A., sent a message to him to fix a time to call and give a bail bond, and A. fixed a time, attended and gave bail in an action for malicious arrest, this was held to be no arrest. Berry v. Adamson, 6 B. & C. 528. See further as to arrest, antè, Case for malicious arrest, p. 388.

Defence.

A con

The fact of the defendant being a constable or other public officer is sufficiently shewn by proof that he was acting as such; and the regularity of his appointment will be then presumed. Antè, p. 25. stable, having reasonable cause to suspect that a felony has been committed, is justified in arresting the party suspected, though it afterwards appear that no felony has been committed. Beckwith v. Philby, 6 B. & C. 635.; Davis v. Russell, 5 Bing. 354. But it is otherwise in a case of misdemeanor, without a warrant. Fox v. Gaunt, 3 B. & Ad. 798.; and he is in no case justified in handcuffing a prisoner, unless it be necessary to prevent an escape, or an escape be attempted. Wright v. Court, 4 B. & C. 596.

ACTIONS AGAINST REVENUE OFFICERS AND OTHERS ACTING IN THE EXECUTION OF A STATUTE.

Notice of action.] By 28 Geo. 3. c. 37. s. 25., no writ or process shall be sued out against any officer of the customs or excise, or against any person or persons acting by his or their order in his or their aid, for any thing done in the execution or by reason of that or any other act or acts of parliament then in force, or thereafter to be made relating to the said revenues, or either of them, until one calendar month next after notice in writing shall have been delivered to him or them, or left at the usual place of his or their abode, by the attorney, or agent for the person who intends to sue out such writ or process as aforesaid, in which notice shall be clearly and explicitly contained the cause of action, the name and place of abode of the person or persons in whose name such action is intended to be brought, and the name and place of abode of the said attorney, or agent. By section 27., the plaintiff shall not give evidence of any cause of action not contained in the notice. The statute now in operation for the protection of officers of the customs is 3 & 4 W. 4. c. 53. s. 103. to 107.; and of officers of excise, 7 & 8 Geo. 4. c. 53. s. 114. to 119. By 5 & 6 Vict. c. 97. s. 4., in all cases where notice of action is required, it is now sufficient to give one calendar month's notice before action commenced.

The prochein amy of an infant, though not the one named in the record, may give notice of action. De Gondouin v. Lewis, 10 A. § E.

117.

Limitation of action.] If any action or suit shall be brought or commenced against any person or persons for any thing by him or them done in pursuance of that or any other act or acts of parliament then in force, or thereafter to be made, relating to his majesty's revenues of customs and excise, such action or suit shall be commenced within three months next after the matter or thing done. 28 Geo. 3. c. 27. s. 23. Under this section the action must be commenced within three lunar months. Crooke v. M'Tavish, 1 Bing. 307.

By 1 & 2 Wm. 4. c. 32. s. 47., for the amendment of the game-laws, persons acting in the execution of that act are entitled to have the venue local, to be sued within six calendar months, to have notice in writing at least one calendar month before action, to tender amends, and to plead the general issue. Bush v. Green, 4 New Ca. 41.

By 5 & 6 Wm. 4. c. 50., (the Highway Act) no suit can be brought against any person for any thing done in pursuance of or under the authority of that act after tender of sufficient amends, nor after three calendar months after the act done. The venue is to be local, and the plea of the general issue is given, s. 109.

Plea.] The defendant may plead the general issue, and give the special matter in evidence. 23 Geo. 3. c. 70. s. 33. ; 24 Geo. 3. sess.

2. c. 47. s. 55., &c.; and the same plea is given in many other acts; see suprà, Highway Acts, &c. An officer of customs may shew a seizure of goods for forfeiture, though he, in fact, took them only to examine and return them, and though he made no previous demand. But in order to justify assaulting the plaintiff and taking the goods, he ought to shew a previous demand, or something to justify force in the first instance. De Gondouin v. Lewis, 10 A. & E. 117.

Decisions on the above, and similar acts, for the protection of officers and others.] The general rule seems to be settled, that persons, who bonâ fide and honestly believe that they are acting in the execution of the powers conferred on them by such acts as the above, are within their protection, although in fact they may have mistaken the extent of their power, and have exceeded it, or failed to comply with the directions of the statute. See Smith v. Shaw, 10 B. & C. 284., and cases, post, p. 592.

Under the act, 23 Geo. 3. c. 70. s. 30. (similar to the 28 Geo. 3. c. 37.) it was held that an excise officer was within the statute in respect of an act not warranted by his official capacity, if done bonâ fide in the supposed execution of his duty; such as assaulting an innocent person whom he suspected to be a smuggler. Daniel v. Wilson, 5 T. R. 1. But a constable, who seized a person by direction of a custom-house officer who had himself no power to seize, was held not to be within the protection of the act. Norton v. Miller, 2 Chitty, Rep. 140. The intent of notice is, that the defendant may know where to find the plaintiff, in order to tender him amends on the receipt of the notice. Per Lawrence J., Williams v. Burgess, 3 Taunt. 129.

Where a private person apprehended his late tenant for lopping trees under a supposed custom, and gave him into custody for an alleged offence against the Malicious Trespass Act, 7 & 8 Geo. 4. c. 30., it was held that he could not be sued without one calendar month's notice, if he bona fide believed he was acting under that statute. Beechey v. Sides, 9 B. & C. 806.; Reed v. Cowmeadow, 6 A. & E. 661. So where. the defendant entered the plaintiff's house under a warrant to apprehend a third person S., who was not therein, it was held that he was entitled to notice, if he believed bonâ fide that he was pursuing the warrant, although the jury in fact found that he had no reasonable ground for believing S. to be there. Cook v. Clark, 10 Bing. 19. Acc. Wedge. v. Berkeley, 6 A. & E. 663. So where a party bona fide believed that the Building Act enabled him to heighten a party wall, he was held entitled to notice under that act; Wells v. Ody, 2 C. M. & R. 128.; and it matters not that no part of the act done is within the authority of the statute. Ballinger v. Ferris, 1 M. & W. 630. The question of bona fides is for the jury, Wedge v. Berkeley, 6 A. & E. 663.

But it seems that the party cannot claim the protection of such a provision unless he also have reasonable ground for believing himself within it. Cann v. Clipperton, 10 A. & E. 582. Thus where a constable seized a dromedary in a stable, which had been exhibited in the street, under the supposed powers of a local act to remove nuisances (as animals exhibited in the street, &c.), it was held there was no colour or reasonable ground for the assumed authority, and that no notice was requisite. Cook v. Leonard, 6 B. & C. 351. So a defendant, who bonâ fide but erroneously thinks that he fills an office which entitles him to