1827.

V.

The JUSTICES

bench, on some points, although the majority of the

The KING justices agreed in disallowing the appeal on the principal point at issue. I do not find it suggested that there was any difference of opinion upon the substantial question WORCESTER. raised by the appeal. If that had appeared, I should have thought the magistrates ought to hear the other two cases; or if it had appeared that the appellants in the other cases had foreborne to press for a hearing of their cases, under an expectation and belief that the point would be brought under the consideration of this Court, I should have been inclined to make this rule absolute; but inasmuch as it appears that all the cases were exactly the same in facts and circumstances, and the same question of law being applicable to each, I am disposed to concur with my Lord Chief Justice (but not without some doubts on my mind) in opinion that we ought not to send these cases to be reheard at sessions. I certainly entertain doubts upon it.

LITTLEDALE, J. (a)—I am decidedly of opinion that this rule ought to be discharged. All the cases were exactly similar in circumstances, and the same question was involved in all. It was agreed that two should abide the event of one. That one was fully discussed and considered, and a majority of the Court having determined its merits, I think we ought not to compel the sessions to hear the other cases.

Rule discharged.

(a) Holroyd, J. was absent.

CROZIER V. CUNDY and others.

1827.

Thursday, February 8. having a war

A constable

goods alleged

warrant. The

were not

likely to furnish evidence of the identity of the former: Held, that he

TRESPASS for breaking and entering plaintiff's dwelling-house, and seizing and taking away his goods. There was a second count for seizing and taking away the rant authorising the seigoods only. Plea, not guilty, and issue thereon. At the zure of certain trial before Best, C.J. at the Derbyshire Spring Assizes, specified 1826, it was proved on the part of the plaintiff that the to have been defendants had entered the plaintiff's house, had searched stolen, seized those goods it, and had seized and carried away 100lbs. weight of and others not cotton, two cases in which it was packed, a tin pan, and specified in the a hair sieve. In answer to this case, it was proved on latter goods the part of the defendants, that the cotton and the cases were the property of the defendant Cundy, from whom they had been stolen; that the defendants, one of whom was a constable and the others his assistants, had entered the house under the authority of a search-warrant granted by a magistrate, which was produced in evidence, and which empowered them to search the house for 100lbs. weight of cotton; that finding the cotton packed in cases they carried it away in them; and that they also carried away the tin pan and the hair sieve, because the defendant Cundy claimed them as his property. It was admitted that the plaintiff had not demanded a copy of the search-warrrant. The Lord Chief Justice was of opinion that under the 24 Geo. 2, c. 44, s. 6, the plaintiff was bound to demand a copy of the search-warrant, and that not having done so he could not maintain the action. The plaintiff, therefore, was nonsuited, with liberty to move to enter a verdict for one shilling damages.

Clarke having in Easter term last obtained a rule nisi accordingly,

Reader now shewed cause. The statute provides that

was liable in an action of trespass, though a copy of the warrant

had not been

demanded of him pursuant to 24 Geo. 2, c. 44, s. 6.

1827.

CROZIER

v.

CUNDY.

no action shall be brought against any constable for anything done in obedience to any warrant, until demand has been made of a copy of such warrant. The cotton was seized in obedience to the warrant, for it was specifically mentioned in it, and the only question is whether, under the circumstances, the seizure of the other articles was not a thing done in obedience to the warrant. Though the constable was not commanded by the terms of the warrant to seize any other goods than the cotton, still he was not restrained from so doing, if those other goods appeared to him to have been stolen, and if their detention was likely to prove useful in the investigation of the felony mentioned in the warrant. In Price v. Messenger (a), where the warrant was to seize "stolen sugar," not describing it particularly, and the constable seized sugar which turned out not to have been stolen, he was held to be within the protection of the statute. There he must have been considered as acting, virtually, in obedience to the warrant,-and here, upon the same principle, the defendants must be considered as having seized all the goods in obedience to the warrant, and therefore to be within the protection of the statute.

Clarke, contrà, was stopped by the Court.

ABBOTT, C. J.-By the warrant which was produced in evidence, the constable was authorised to seize certain articles therein specified. Unfortunately for him he also seized some other articles not specified in the warrant. If those articles had from their nature been likely to furnish evidence of the identity of the articles stolen and mentioned in the warrant, I should have been inclined to assent to Mr. Reader's argument, and to think that there

(a) 2 B. & P. 158; S Esp. 96. For the other decisions upon this

subject see Chitty's Statutes, 649, in notis.

1827.

But it cannot be

CROZIER

might have been reasonable ground for seizing them, though not mentioned in the warrant.

contended that the tin pan and the hair sieve were articles likely to furnish such evidence, and therefore I am of opinion that the nonsuit cannot be supported. It will be collected from the mode in which I have expressed myself, that I am anxious to prevent the supposition that a constable who seizes goods not specified in the warrant under which he acts is invariably and necessarily a trespasser: neither the act of parliament, nor our present decision, justifies such a supposition. The verdict must be entered for the plaintiff for one shilling damages; but it must be entered on the second count, which charges only the seizure of the goods.

The other Judges concurred.

v.

CUNDY.

Rule absolute.

The KING v. SLYTHE.

Friday, February 9.

an inchoate

right to be ad

THIS was a similar case to the preceding one of Rex The title of a v. Slythe (a), with these exceptions: There was no ob- person having jection to the competency of the relator. His affidavit stated only that he had been informed and believed that mitted a free burgess of a the defendant exercised the office of free burgess of the borough canborough. The defendant's affidavit shewed that he had not be iman inchoate right, by birth, to be admitted a freeman at the ground of the time when he was admitted and sworn before Seckamp title in the and Hummond.

peached on

a defect of

officer by whom he was admitted.

The affidavit of a relator in a motion for a quo warranto, that he " has been informed and believes" that the defendant exercises the office which he is charged with usurping, is sufficient (b).

(a) Ante, p. 291.

(b) Vide ante, 296, (b).

1827.

The KING

v.

SLYTHE.

Campbell and Patteson shewed cause. First, the relator's affidavit is bad, for not alleging positively that the defendant exercises the office which he is charged with usurping. It states only that he has been informed and believes that the defendant exercises the office. That is

far too loose an averment. It is irregular to charge a party with a misdemeanor in such dubious terms. The charge ought to be clear and positive, as it easily may be; for there can be no difficulty in ascertaining such a fact. In this respect an information in the nature of quo warranto resembles a criminal information; they both impute to the defendant an offence, and ought both to be framed in clear and positive language. [Holroyd, J. A quo warranto information is not a criminal proceeding. It was, I believe, once held by Lord Kenyon (a), that the affirmation of a Quaker was admissible in support of an application for a quo warranto information; which could not have been the case if the proceeding had been one of a criminal nature. A criminal information is very different; that is, strictly speaking, a criminal proceeding, and the charge must be clearly and positively stated; but the same degree of precision is not necessary in a case like this, which is substantially a civil proceeding.] Secondly,

(a) The case here alluded to by the learned Judge does not appear to have been reported, but was once before mentioned by him, in his judgment in the case Ex parte Gellibrand, H. T. 3 Geo. 4, 1 D. & R. 124, in these terms:-" I remember a case before Lord Kenyon, where an application was made for a quo warranto upon the affirmation of a Quaker, which proceeding is in its form criminal, though in substance civil, and according to my recollection, that

noble and learned Judge said, that the rule to try the admissibility of a Quaker as a witness was, whether the object was criminal, though the form was civil, and upon that principle he held that the affirmation was admissible, the object being only criminal in form, but civil in substance. According to my recollection he drew that distinction." See the authorities upon this subject collected in the case above cited, and in Skipp v. Harwood, Willes, 292, (b).