case smith against boucher and other to trespass the defendant justify under  process of the ViceChancellors court at Oxford find on a custom to which the  plaintiff reply that no affidavit of the cause of action be file as require by  Geo c and judgement for the plaintiff SC stram SC b r h SC bar SC Cun a action  of assault and imprisonment be bring against the judge of the ViceChancellors  court at Oxford the modern plaintiff in the action the officer who arrest the  now plaintiff and the gaoler the defendant justify under a process issue out  of the say court of the vicechancellor the justification set forth a custom in  the university establish among other by Act of parliament in queen Elizabeth  reign whereby the court be empower on complaint make by any person that he  have cause of a action personal against another and state on oath the damage  he have thereby receive and that he believe the person against who he have  such cause of action will get out of the jurisdiction to issue a writ to take  and commit such person to gaol unless he find bail until the next court be  hold then the plea set out that one of the defendant have receive a cause of  personal action against the plaintiff which he make complaint of c and that  the damage he thereby sustain be in his estimation to the amount of one  thousand pound and that be suspect the plaintiff will make his escape out of  the jurisdiction and that he make oath de et super to send forward and so  justify the commitment to gaol the plaintiff reply that no affidavit of the  cause of action be file as be require by the Geo c before any capias can issue  to this there be a demurrer chapel sergeant for the defendant the replication  be bad because the statute do not make the process void but only inflict a  penalty on the officer c for not comply with it this appear from the pen of  this and other act of parliament where the process be express declare void  when that be the intention of the law so it be in the Geo a explanatory Act of  the Geo I Ann car c S this be not unlike the case where a officer after a  arrest refuse to take bail which do not make the officer a trespasser cro  salmon v Percival Hawkins sergeant on the other side the defendant plea in  this case be ill and if modern er p so the plaintiff must have judgement  whatever become of the replication there be in this case a mere nullity of  jurisdiction and the proceed be void all the defendant be trespasser like the  case of a appeal in the common plea more hale p c a this be a void custom  first because it do not appear when the Courtis to be hold at which the writ  upon which the party be arrest be returnable dyer pl cro b second because no  capias can issue without a previous summons roll Abr pl Mod c suppose it then  a void custom it can be confirm and make a good custom by the statute of  Elizabeth which in general term only confirm the charter and custom of the  university and must have a reasonable construction Plowd hob   light salk d  but however the defendant modern have not bring themselves within the custom  there be no pretence of jurisdiction in the court unless there be a cause of a  personal action now it be say only that the party complain he have such cause  c not say that he real have the nature of the injury also which the party  receive ought to be particular set out that it may appear to the court whether  a personal action will lie for it and not to make himself the judge thereof it  be say the damage which the party receive be in his estimation one thousand  pound which ought to be allege more positive and it be say only that the party  make oath de et super to send forward which be altogether lose and uncertain  and though this proceed may not be look upon as void with respect to the  officer who execute the process yet with respect to the party to the action it  will Jones a and all the defendant in this case have plead joint if the plea  be bad as to one it be as to all chapel sergeant we have set forth our case  accord to the custom and not in more general term and therefore this question  will depend upon the validity of the custom there be many custom in the city  of London more extraordinary than this which have the sanction of the  legislature have never be shake a custom for infant to bind themselves  apprentice a creditor may arrest for a debt not yet Payable Henry b house may  be buy and sell by parole and without enrolment since the statute of  Enrolments dyer c debt by simple contract be equal to specialty and many other  of this nature     d Lord Hardwicke chief justice I be at first a little  doubtful whether this be a case within the Geo c it be no unusual thing that  affirmative law shall not control particular custom as in the case of court  leet when a usage to hold they at different time than be prescribe by statute  still prevail but I find here be negative word in the Act which will control  any particular custom inconsistent with the provision of the Act suppose this  to be a case within the Act then the question will be whether this non  compliance with the direction of the Geo will make the proceed void the judge  or the officer may be liable to a action for not pursue the statute where a  person have receive a particular injury thereby or if it be a thing that be  injurious to the public it be a offence indictable but still the proceed in  the action will not be affect by any such misbehaviour in the judge or officer  and therefore the replication in this case be certain ill as to the custom  itself we must be very tender in determine a question of such consequence to  the court of both the university the case which have be mention of custom  within the city of London be very material there do indeed seem to be some  imperfection in that part of the defendant justification modern by which they  will bring themselves within the custom as particular that the party take a  oath de et super et to send forward the word imply no more than that the party  take a oath relate to what be before mention but then the nature of this  action be considerable and I can think any imperfection of that kind will make  any of the party to the proceed trespasser the case of Gwyn v pool Lutw a be  strong to this purpose where it seem settle that although the cause of action  arise out of the jurisdiction of the court in which the action be bring yet  neither modern er p the plaintiff the judge nor the officer be trespasser or  liable to any action of this nature page and probin justice be of the same  opinion and page justice say he doubt of what be say by Hawkins that if the  plea be bad as to one it will be bad as to all and put this case suppose  trespass and false imprisonment be bring against the plaintiff in a former  action and the officer and they join in a justification under a judgement  recover against the now plaintiff suppose in fact there be no judgement the  party to the action will fail in his justification but not the officer who  have do no more than his duty in execute the process direct to he lee justice  the replication be certain ill for the reason that have be it give but it seem  to I to be a considerable question whether if the custom which seem to I to be  a reasonable one be not putsued the defendant will not thereby become  trespasser as in the case of a appeal in the common plea before cite Lord  Hardwicke chief justice in the case of a appeal bring in the common plea there  the court have no jurisdiction but here there be a jurisdiction though it be  not strict pursue in all its circumstance the case be adjourn and afterward  argue a second time Skinner sergeant for the defendant the replication be  clear ill for the omission in not fill the affidavit will not make the process  void Mr strange for the plaintiff the plea be bad in this case No summons  appear before issue the capias the custom be bad yet if good it be not pursue  it be that the party be to make oath he have a personal action but possible no  cause of action this custom make the person a judge what be a personal action  which be matter of law and proper for the court it give the plaintiff a power  of settle the quantum the bail be to be take for which hold in case of  contract only not in trespass or where the damage be uncertain for there it be  in the discretion of the court modern and the quantum to be settle by a judge  the apprehension or belief of the plaintiff that the defendant will withdraw  himself be not a sufficient foundation to deprive a man of his liberty a writ  of ne exeat kingdom be not obtainable you such a suggestion by this custom the  court be at liberty to proceed either accord to the law of the land or the  custom and statute of the university which custom be uncertain and bad for  some certain method of proceed must be observe the complaint may be make to  one person the oath administer by another the complaint may he be before the  chancellor his commissary or deputy but the oath before his commissary or  deputy which be a different person and who do not appear to have any authority  to administer it however the custom be not pursue the custom be that the party  believe be will withdraw c and it be say only here the plaintiff suspect c  belief must be find on some certainty suspicion on slight circumstance here be  no oath of one thousand pound damage but it be only say so much in his  estimation which be too lose and not warrant by the custom the oath be say to  be make only of or upon the truth of the premise though the premise be false  yet the party may safe swear of or upon c in the case of the queen v green  Hilary term whether a on a conviction for sell bread c it be say that oath be  make de in point of fact praemissor and it be hold ill in the queen v grey  easter term whether a protector sacrament de in point of fact praemissor means  infra content hold ill the court by the custom be to be hold every Friday but  this court appear to have be hold the seven of August which be upon a Saturday  this court will take notice of the calendar in the case of Hoyle v Lord  Cornwallis which be error on a judgement in the common plea a writ of enquiry  be lie to be execute on the fifteen of June which be on a Sunday which be  wrong by the statute of Charles the second it appear to be so by look into the  calendar judgement be reverse by the custom the court be to be hold within the  precinct of the university but this court do not appear to have be so hold all  the defendant have join in plead if the plea be bad as to one it will be so as  to all though the oath do not appear to the bailiff or gaoler yet they be not  excusable in this action unless they have sever in their plea in the case of  gwynn v pool the modern er p reason the court go upon there be the presume  ignorance of the place where the cause of action arise there can be no such  pretence here they can be unacquainted with their own custom in vent it be say  that there can be no justification under the process of a inferior  jurisdiction unless it can be show to be regular per curian that case be not  law in the case of Phillips v Byron Hilary term Geo b trespass be bring  against two defendant who justify under a judgement which be afterward set  aside for irregularity modern and hold no good plea as to the plaintiff though  it will be as to the officer but he have join in plead it be bad as to both  sand Skinner sergeant e contra this be a court find on immemorial usage letter  patent and act of parliament the defendant come before the chancellor and  swear that he have a action of damage and injury which he compute at one  thousand pound which be only more modest than the common method the plaintiff  apprehension of the defendant withdraw himself be good within the custom the  chancellor election of proceed by our law or the custom and statute of the  university be well warrant by the letter patent confirm by Act of parliament  the make oath before the chancellor his commissary or deputy that must be  understand deputy of the chancellor not of the commissary this custom thus  establish be goodCo light cro car cro James a the word of and upon the truth  of the premise in manner aforesaid refer to what go before and be the same  thing as if repeat the party by the custom be not oblige to show the reason of  his belief suspicion be a degree of belief it be object that no positive oath  be make of one thousand pound c though it have be positive it must have be  accord to his estimation I admit the warrant be not on a court day nor be  there any necessity for it within the custom as to the objection that it be  not say within the precinct c I answer that it be say accord to the custom  which necessary imply it a action lie not against a judge though against he  not against his officer Lord Hardwicke chief justice there be two general  point first as to the custom the privilege of the university be to be support  as far as the law of the land will permit the judgement here will not affect  this custom of the university personal action and cause of action be the same  thing the definition of action in the civil law be the right of sue or law to  follow as to the objection that the party be to swear positive the party be to  swear accord to his apprehension and that be the foundation of the process it  be say it put it in the power of the plaintiff to settle the quantum of the  bail that be still subject to the power of the judge and the oath be in ease  of the defendant it be object also that the custom give the alternative of  proceed either by the commonlaw or by the custom and statute of the university  there be not only a charter for it but it be confirm by Act of parliament the  charter single will not make it good for the crown can erect a new court  contrary to the law of the land it be also object that different person be to  award the warrant and administer the oath the commissary may have a deputy we  take notice of the proceed of the civil law and a commissary may make a  surrogate who be in the nature of a deputy the difficulty be on the second  point whether the defendant have bring themselves within the custom suspect be  modern not believe say he suspect will not be well but swear accord to his  estimation be sufficient say only of and upon the premise be a very strong  objection and be always fatal upon a conviction where the party must swear the  particular the word in manner aforesaid do not seem to refer to the custom but  it be say before that the defendant offer to take oath of and upon the truth  of the premise accord to his belief but it do not appear what that be whether  the fact be true or false there be nothing in the objection of not issue the  process in court or any day certain the only objection which seem material be  say only that the party suspect and de et super reality praemissor the  question then will be if this a good justification as to any of the defendant  though the custom be not pursue if the beadle and modern er p gaoler bad sever  in plead they have be excuse it can hardly be maintain under the authority of  gwynn v pool that the judge and plaintiff be not liable to a action as they  must be presume conusant of the custom Powell justice there say he doubt  whether a action will not lie for sue in a inferior court where the cause of  action arise out of the jurisdiction page justice it do not appear that the  commitment be to a prison within their jurisdiction it be to the county gaol  and it be not reasonable that the party shall be commit to any other place if  the case be not bring within the custom it be the same thing as if there be no  custom at all I agree to the difference in respect of a action Iying or not  between the party and officer if the plea be bad as to one it must be so as to  all probin justice the custom be not well pursue but as to the objection  respect the commitment here be a averment of the plaintiff commitment to the  place where they use to commit and that be sufficient lee justice all the  defendant be in the same condition as they have join in plead the principal  point be whether a action will lie against the judge and the party they can be  suppose to be ignorant of the custom and therefore this will not clash with  the doctrine in the case of gwynn v pool what have be do be void and so the  party be trespasser hob this case be adjourn for another argument on that last  point only Mr Dennison for the defendant as to the objection to the word  suspect that be supply by the word of the plea follow nor will the say a b  meaning the defendant in the action below legal appear if he be cite accord to  his belief but rather run away Lord Hardwicke chief justice that be not a  independent member of the sentence but the word suspect must in construction  run through the whole sentence Mr Dennison the question then be whether though  the affidavit be not make pursuant to the custom this action will lie against  the defendant it appear that the place the person and modern the cause of  action be within the jurisdiction therefore the issue this warrant without a  proper oath be not a void proceed but a erroneous one only   vent a the  process indeed must be warrant accord to the course of the court as in hob  where it be hold that it be trespass to take a person on a verbal command from  a judge where the custom be to issue a precept in write in that case there be  no jurisdiction as to any such process but here there be no defect of  jurisdiction as to the warrant but only a irregularity in award it without a  previous oath in roycroft v Colecroft in the court of common plea b trespass  and false imprisonment against the DeputyRecorder of Grantham justification  under the process of the court reply that no affidavit of the cause of action  accord to the late Act be file previous to the issue the writ on demurrer  thereto hold that the action will not lie a special action on the case be a  proper remedy here the officer be possible not liable if he have plead  separate but with regard to the judge and the plaintiff in the action below it  be clear otherwise in the case of a execution the officer may justify under  the writ the party must set out the judgement Lutw salk c in Phillips v Byron  Hilary term Geo stram see also parson v Lloyd black Perkins v proctor will d  trespass against the plaintiff in the action and the officer for a execution  on a judgement set aside before that time it be hold clear that the action lie  against the party and the officer have join in the same plea can not discharge  himself trespass lie in all case where the act do be in itself injurious  action on the case only where it be injurious in its consequence the case in  hob be in point the court be unanimous that the principal case be not  distinguishable from hob judgement for the plaintiff modern er p Lord  Hardwicke say that the defendant have all join in one plea it be sufficient if  one of they be liable to the action as the plaintiff below clear be and though  it be not necessary to determine whether the judge be liable to it yet be say  he be of opinion that be be who can but be presume conusant of his own method  of proceed judgement for the plaintiff