case crump against halford Hilary term will mary roll if a Act of parliament  forbid the sell of wine in glassbottles and inflict a penalty for every  offence quaere if the penalty shall lie on every glassbottle or on each  quantity of glass bottle sell at one time quaere if a warrant not strict  formal make by a justice of the peace to levy the penalty will justify the  constable who execute it SC skin trespass for take and detain a silver tankard  upon not guilty plead the jury find a special verdict to this purpose they  find the statute of will mary c prohibit all trade and commerce with France in  which there be a proviso that no person shall after the ten day of September  then next follow demand or take more than sixpence for a quart of French wine  then they find the Act of will mary sess c for more effectual put in execution  the former Act whereby it be enact that if any person after the first day of  February shall sell wine by retail in glassbottles or in any other measure not  make with pewter c or shall sell the same for a great price than appoint by  the former Act and shall be convict thereof by confession or the oath of two  witness be prosecute within thirty modern day after the offence commit he  shall for every offence pay fifty shilling and if not pay upon demand then to  be levy by distress by warrant under the hand and seal of such justice c  before who the conviction be make which warrant the justice be require to  grant to the constable c who be authorize to levy the same c and for want of  sufficient distress to commit the offender until he pay the penalty and all  necessary cost to be tax by the justice of peace before who the conviction be  make they find that on the three day of August in the four year of William and  mary sir Richard Bulkley be a justice of peace of the county where the offence  be commit direct his warrant to the constable of the parish c which they find  in haec word by which it appear that the defendant be convict before modern er  p he for that he on the nine of July eager do sell wine in eighteen  glassbottles for which he have forfeit to the informer fifty shilling for each  bottle and by this warrant the constable be command to levy fortyfive pound  and cost by distress of the plaintiff good and for want of sufficient distress  to apprehend he it be date in August they find that the say second day of July  in the four year of William and mary the plaintiff be a retailer of wine and  that the warrant of the justice of peace be direct to the defendant Halford  who by virtue thereof levy the silver tankard for which the action be now  bring and so they make a general conclusion c it be argue for the plaintiff  that he be entitle to the action and that neither the Act of parliament or the  warrant of the justice can excuse the defendant for this wrong do first  because the warrant be illegal second because the defendant though a officer  yet in this case shall be punish for act under a void warrant the first point  that the warrant be illegal be thus argue I there be two act of parliament  find by the verdict the first settle the offence the second reduce the  forfeiture to fifty shilling for the benefit of the informer but in both it be  to be levy for every offence videlicet not for every bottle drink at one sit  if twenty or more for that be but one offence be but only at one time and not  for every bottle but the warrant direct that eighteen penalty shall be levy  for one offence modern two the offence be lie to be commit on the nine of July  eager and the warrant be date in August but it do not appear when that nine of  July be and therefore non constat whether the prosecution be within the thirty  day limit by the Act III the statute allow cost where there be not sufficient  distress to be make and it must be after the commitment of the offender but  this warrant direct cost to be pay for the original offence second point the  warrant though direct to the defendant as a officer will not excuse he it be  true that where a court have a general jurisdiction of the cause and send a  void or a illegal warrant to the officer he shall be excuse in execute of it  so likewise if a justice of peace proceed irregular and it do not appear so  upon the face of the warrant as if he send it to apprehend a felon without  oath make of the felony commit and the officer execute it he shall be excuse  but the justice be a trespasser but where a defect appear in the body of the  warrant itself as in this case the officer be bind to take notice of it at his  peril though he be not equal bind to take notice of little nicety and to prove  this the case of Nichols v the churchwarden of Hatfield cro car roll Abr a be  cite as a authority in point it be thus videlicet Tateridge be a parish in  reputation for sixty year though ancient parcel of Hatfield the churchwarden  of Hatfield imagine that they have power by virtue of the statute of Elizabeth  c to tax the inhabitant of Tateridge to the relief of their poor do tax they  accord and upon refusal to pay the rate procure a warrant to levy it which be  do upon Nichols the plaintiff who bring the action and the churchwarden  justify under the warrant and it be adjudge that it will not excuse they it  true the churchwarden go out of the parish to levy that rate but that be not  the reason of the judgement it be because the justice of peace have only a  particular power to make warrant to levy rate which be well assess and  therefore the churchwarden at their peril ought to take notice whether the  justice have execute their power accord to law and it appear that the rate be  illegal tax the warrant of the modern justice will not excuse the churchwarden  in take the distress this case be good law at this day and the authority of it  be never shake no not by the case of web v bachelor vent lev a where the  defendant justify in trespass under the warrant of a justice of peace for  distrain of a parson cattle because he do not send out labourer c to amend the  highway the parson pretend that clergyman be exempt from modern er p that duty  it be there say that if for that reason the warrant have be undue make yet the  officer have be excuse in the execution of it because he be not to judge of  but to execute the precept but it be likewise say the matter must be within  the jurisdiction of the justice which be so in that case but not in this  agreeable to this be a late resolution in the exchequer in the case of terry v  Huntington Hardres b where in trover the defendant justify under a warrant of  the commissioner of excise c and it be hold by my Lord hale that where a  particular jurisdiction exceed its authority the officer be liable because all  be void for every limit authority imply a negative videlicet that they shall  not proceed any otherwise than accord to the authority they have but if they  commit a mistake in any thing which be in their power or jurisdiction it will  be ail excuse to the officer but what the justice do in the case at bar do far  exceed his power for he be to cause one penalty to be levy for one offence and  he have send out his warrant to levy no less than fortyfive pound which be  eighteen forfeiture for one single offence suppose this court shall hold plead  in formedons all the proceed will be void because it be confine by great  Charta to the court of common plea alone Inst c the offence here be create by  Act of parliament of which all people be to take notice at their peril and to  see that the proceed be pursuant to the authority and power thereby give the  stature of Henry c enact that no person shall be spare towards the repair of  bank who have any mariner of benefit by keep they in repair the authority of  the commission of sewer which be ground upon this statute be very extensive  videlicet that the commissioner may do therein accord to their discretion but  yet it have be hold   d that they ought not to tax that man alone who land  adjoin to the river but all other who land be in danger to be overflow with  water and therefore a tax be lie upon a single person and a distress take for  nonpayment be modern tortuous because it be give by virtue of a general law  the officer at his peril must examine and inquire into the authority by this  it appear that there be a difference between thing do by a justice of the  peace quatenus such and by virtue of his authority and those which be do by he  by virtue of a Act of parliament and of a particular restrain power to he give  thereby for in the one case the officer must not examine but execute his  warrant and in the other he must inquire into his power because it be by  virtue of the statute that obedience be give to his authority now though the  rule be true viz  qui order judge to some degree to make non to see trick evil  to make because to appear necessary be   a yet that must be understand where  the judge have a proper jurisdiction but here the authority of the justice be  limit by the Act to grant his warrant in a particular case of which he have no  general jurisdiction and he have make a void and a illegal warrant be  therefore no proper judge of the matter who authority be no more to be obey  than that of a stranger for the rule also be judgment non a his judge datum no  one be nonenti to make this yet more plain suppose the justice have issue out  his warrant direct to the defendant to levy five hundred pound for this  offence or to take and imprison the offender during life certain he have be a  trespasser if he have execute such a warrant the statute give power to the  justice to convict but do not make he a judge either to declare the forfeiture  or to levy it so that his grant a warrant for that purpose be pure a  ministerial act at the instance of the informer who be to demand it after  conviction and if not pay then to apply himself to the justice for his warrant  to levy it so that upon the face of this warrant the constable be leave  without excuse for both the act be therein recite it be a sufficient direction  for he to look into they and to take care at his peril not to exceed his  authority stram stram b second there be many other fault both in the warrant  and in the execution of it videlicet cost be award when in truth the party be  to pay none till after commitment and the defendant be not commit so likewise  the demand of the forfeiture ought to be previous to grant the warrant but  that do not appear then it command the defendant to demand it of crump the  plaintiff and he demand it of his wife when it ought to have be modern  personal of he and no distress modern er p ought to have be make before such a  personal demand but these fault be not insist on only mention the warrant  therefore be illegal and the defendant act under it though he be a officer yet  he be a trespasser Pemberton sergeant argue on the other side videlicet that  the question be not whether the justice of peace have do well or not nor  whether his warrant be regular but admit it not to be well ground upon the Act  then the question will be whether the constable who be appoint to execute it  be punishable for the mistake of the justice of the peace constable bailiff  and sheriff be always favour by law in execution of their process they have be  encourage by several act of parliament which direct they when sue for any  matter relate thereunto that they shall plead the general issue and give the  special matter in evidence and if they have a verdict or the plaintiff in such  suit be nonsuit they shall have Triple damage James c James c c this seem high  reasonable because the execution of process be the life of the law and if man  shall be prosecute for any small mistake it will obstruct the execution of  justice by discourage of officer and by great delay in all proceed which must  necessary follow if the officer before he execute the process must advice  whether it be legal or not this question be long ago settle in the case of the  Marshalsea hall v Stanley   a there be then a solemn judgement give that a  subordinate officer shall be excuse in the execute of a erroneous process  because to appear necessary be it be true there have be several question since  that judgement concern the execution of process all which depend upon this  single point videlicet whether the court out of which such process do issue  have a original jurisdiction of the matter or cause but it seem very hard that  officer who for the most part be illiterate person shall take notice whether  that court out of which the process issue have a jurisdiction of the matter or  not and therefore since that case of the Marshalsea all subsequent cause of  that nature have be govern by that judgement to instance in some videlicet in  Hilary term in the twenty second of James the first a action of trespass be  bring in this court for take the plaintiff good c Turberville v Tipper roll  Rep b modern the defendant plead that the earl of Southampton be seize in fee  c and that he have a courtbaron c in which a plaint be levy and a debt recover  against one Britton and thereupon a attachment be award against he direct to  the defendant be a bailiff who by virtue thereof take the good out of the  custody of the plaintiff to who they be fraudulent convey by Britton on  purpose to deceive his creditor to this a exception be take because the  process be irregular videlicet a attachment first which can be in a court  baron for the process there be summons attachment and distress yet it be hold  that the court have a original jurisdiction of the matter the misawarding of  the process shall not make the officer guilty in execute of it so where a  action be bring in a inferior court roll Abr c and a three person bind both  his land and good by recognizance that the defendant shall render his body c  or that he will pay the debt and afterward judgement be have against the  defendant and a precept in the nature of a capias ad to give satisfaction be  direct to the bailiff c to take the defendant and if he be not to be find then  to take he who enter into the say recognizance but notwithstanding that and  although one and the same capias will not lie against the principal and bail  at the same time and this appear in the precept itself to be contrary to law  of which the officer may have take notice yet since that court have all  original jurisdiction of the cause he shall not be punish for obey a illegal  process likewise in sir Thomas Orbys case c ld ray cite et to waver in opinion  d who be high sheriff of Lincoln and one hale a justice of peace do by virtue  of the statute of car c discharge a prisoner who be in custody for a hundred  pound though the discharge be illegal yet upon a escape bring against the  sheriff in the common plea lie be excuse because the justice of peace have a  jurisdiction modern er p and authority by the statute to discharge a prisoner  in such manner as be therein direct and though he have exceed his power yet  the sheriff be not to be punish it appear therefore upon these authority and  many more which may be cite that when officer be punish for execute erroneous  process it be always where the court out of which it issue have not a original  jurisdiction of the cause so be the case of terry v Huntington more a in the  exchequer mention on the other side and so be nichol case cro car b the reason  of the judgement in that last case modern be because the churchwarden of one  parish have no power to tax the inhabitant of another and the justice be only  to confirm lawful rate it must therefore be agree that where the court have a  jurisdiction and act illegal the officer shall be excuse if so the justice of  peace have a jurisdiction in this case and therefore the officer shall not be  punish and that he have a jurisdiction appear upon the frame and construction  of this Act for first it prohibit sell of wine in glass bottle second it  impose a forfeiture upon the seller after a time limit it create a new offence  and inflict a penalty see stram c but it give the justice power to convict and  send out their warrant to levy it so that they have cognizance of the cause it  must also be agree that a erroneous warrant of a justice c be within the same  reason with a illegal and void process of any court whatsoever but when it be  object that it be so when the warrant be general but not where irregularity  appear upon the face of it as there be two in this warrant first it be to levy  fifty shilling for every bottle when all be but one offence second it be to  levy the cost before the penalty as to the first it do not appear that there  be a irregularity in it because by the very word and meaning of the Act the  defendant be to pay fifty shilling for every glass bottle in which he sell  wine and if he sell it in a hundred bottle to several people those be several  offence and non constat but the eighteen bottle of wine for which he be  convict be so sell at several time and not all at once it be plain that it be  the opinion of the justice that the offence be several and it seem  unreasonable that the constable shall have power to control his judgement he  be not to dispute but to submit then as to the cost it be likewise plain that  they be give upon the conviction and not upon the commitment of the offender  however it be a little too nice to put the constable upon examine that matter  modern it have be say that the statute be recite in the warrant and the defect  appear so plain therein may be some intimation or direction to the constable  to look into these law but admit he do he may not understand they and the  other side will scarce allow a constable to be a proper judge of a Act of  parliament by Geo c No action shall be bring against any constable c for any  thing do in obedience to a warrant under the hand and seal of a justice of the  peace until demand make by the party in write of the perusal and copy of such  warrant and the same have be refuse or neglect for six day after such demand  and after such demand and compliance therewith no action shall be bring  against such constable c without make the justice who sign or seal the warrant  defendant and on produce and prove such warrant at the trial the jury shall  give a verdict for the defendant notwithstanding any defect of jurisdiction in  such justice and if such action be bring joint against the justice and  constable c then on proof of the warrant the jury shall find for such  constable notwithstanding such defect of jurisdiction as aforesaid c see  Milward v Caffin black Rep a the cause be adjourn but the plaintiff die no  judgement be give in it modern er p