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has been committed and that there is probable cause to suspect that he committed the same. From aught that appears in this affidavit, the prisoner may have honestly come to the possession of the property claimed to have been stolen, by purchase, or by borrowing, or by finding; and this may have been known to the person making the affidavit. There is nothing in the affidavit necessarily inconsistent with this idea. Without saying more, it is sufficient that, in our opinion, the affidavit was insufficient to give jurisdiction for the purpose of issuing the warrant. A majority of the Court are of opinion that, the affidavit being insufficient, the prisoner was improperly deprived of his liberty, and he was justified in asserting his right to his freedom, guaranteed to him by the constitution and the law, by refusing to submit to the warrant. In breaking away from the officer's custody, he committed no offence. The State v. Leach, 7 Conn. 752. The rule, as found in treatises upon criminal law, is, that whenever an imprisonment is so far irregular, that it is no offence in the prisoner to break from it by force, it will be no offence in the officer to suffer him to escape. 2 Hawk. P. C. ch. 29, § 2; Roscoe's Criminal Evidence, 459; 1 Russell on Crimes, 417.

It is true, as contended by the State's attorney, that as the warrant was regular on its face, the officer who made the arrest, and the appellant who received the custody of the prisoner, would be protected in an action for assault and false imprisonment, in consequence of his arrest and deprivation of liberty. But it does not follow therefrom, that appellant was bound to obey the warrant. The somewhat anomalous condition that a sheriff or constable occupies in such cases is well explained in Tuttle et al. v. Wilson, 24 Ill. 561. It is there said:

"The rule that a ministerial officer is protected in the execution of process issued by a court, or officer having jurisdiction of the subject matter, and of the process, if it be regular on its face, and does not disclose a want of jurisdiction, is a rule of protection merely, and beyond that, confers no right; it is held to be personal to the officer himself, and affords no shelter to the wrongdoer, under color of whose process, if it be void, the officer is called upon to act. Such an officer may stop in the execution of process, regular on its face, whenever he becomes satisfied there is a want of jurisdiction in the officer or court issuing it; and if sued for neglect of duty, may show in his defence such want of jurisdiction. Earl v. Camp et al., 16 Wend. 562. He can, if he chooses, take the responsibility of determining the question of jurisdiction, or any other question to which the process may give rise."

The justice of the peace not having been invested with jurisdiction by the affidavit to issue the warrant, it was void, and it necessarily follows that the Court erred in giving the instructions and that appellant's conviction was improper. The judgment is reversed and the defendant discharged. Judgment reversed.

1051. FELD v. LOFTIS

SUPREME COURT OF ILLINOIS. 1909

240 Ill. 105, 88 N. E. 281

[Printed ante, as No. 994.]

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(2) General Warrant; Persons

1052. LEACH v. MONEY

KING'S BENCH. 1765

19 How. St. Tr. 1003

THIS was an action of trespass brought in the Court of Common Pleas by Dryden Leach, against three king's messengers, John Money, James Watson, and Robert Blackmore, for breaking and entering the plaintiff's house, and imprisoning him, without any lawful or probable cause; to the plaintiff's damage of 2,000l.

The defendants below pleaded two pleas. The first was the general issue, "Not Guilty," on which issue was joined. The other plea pleaded (by leave of the Court) was a special justification, as to the breaking and entering of the plaintiff's dwelling-house, and staying and continuing therein for six hours, and making the assault upon him, and seizing, taking, and imprisoning him, and keeping and detaining him in prison for four days; as to all which, they say, that before the commitment of the supposed trespass, viz. . . . on the 23d of April, 1763, a certain seditious and scandalous libel or composition, intitled "The North Briton, No. 45," was unlawfully and seditiously composed, printed and published, concerning the King and his said speech; in which libel were contained, &c. &c. &c. That the Earl of Halifax was then one of the privy council, and one of his majesty's principal secretaries of state; and that information was given to him of the said publication of the aforesaid libel; and the said libel was then shewn and produced to the said Earl; and he thereupon in due manner issued his warrant in writing under his hand and seal, directed to Nathan Carrington and these three defendants, who were then four of his majesty's messengers in ordinary; . . . which warrant was in the words and figures following, that is to say,

"George Montague Dunk, earl of Halifax, viscount Sunbury, and baron Halifax, one of the lords of his majesty's most honourable privy council, lieutenant-general of his majesty's forces, and principal secretary of state, &c. These are in his majesty's name to authorize and require you, taking a constable to your assistance, to make strict and diligent search for the authors, printers and publishers of a seditious and treasonable paper, intitled, 'The North Briton,

No. 45, Saturday, April 23d, 1763, printed for G. Kearsly in Ludgate Street, London;' and them or any of them having found, to apprehend and seize, together with their papers, and to bring in safe custody before me, to be examined concerning the premises, and further dealt with according to law. In the due execution whereof, all mayors, sheriffs, justices of the peace, constables, and all others his majesty's officers civil and military, and loving subjects whom it may concern, are to be aiding and assisting to you, as there shall be occasion. And for your so doing, this shall be your warrant. Given at St. James's, the 26th day of April, 1763, in the third year of his majesty's reign. Dunk Halifax, To Nathan Carrington, John Money, James Watson, and Robert Blackmore, four of his majesty's messengers in ordinary."

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. . . That the plaintiff followed and exercised the art and business of a printer; and did in fact print and cause to be printed one of the said weekly compositions, intitled, "The North Briton;" to-wit, the North Briton, No. 26, and that after the issuing of the aforesaid warrant, and before the committing of the said supposed trespass, to wit, on the 27th of April, 1763, information was given to them the defendants, that the said Dryden Leach and his servants were the printers of the aforesaid seditious libel, intitled, "The North Briton, No. 45, Saturday, April 23d, 1763." Wherefore the defendants, . . . together with the said constable, entered into the aforesaid dwelling-house of the said Dryden Leach, in which the said Dryden Leach carried on his aforesaid business of a printer, the door thereof being then open, to search for the printers of the said seditious libel, did gently lay their hands upon the said Dryden Leach, and seized and took him into their custody, in order to bring him before the said Earl of Halifax, to be examined concerning the said seditious libel, . . . did keep and detain the said Dryden Leach in their custody for the said space of four days, . . . and, That at the end of the aforesaid four days, and not before, upon the examination of the said Dryden Leach and certain other persons who were then and there examined concerning the premises, it appeared to the said Earl of Halifax, "that the said Dryden Leach did not print the said seditious libel intitled, The North Briton, No. 45, Saturday, April the 23d, 1763;" and thereupon, the said defendants, by the command of the said Earl of Halifax, did then and there release the said Dryden Leach out of their custody, and discharged and set him free from that imprisonment. Which are the same breaking and entering of the aforesaid dwelling-house of the said Dryden Leach, in the declaration mentioned. . . .

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The cause came on to be tried before Lord Chief Justice PRAtt, on the 10th of December, 1763, at Guildhall; and the jury found a verdict for the plaintiff upon both issues; and gave him damages 400l. besides his costs and charges, &c. . . The case was argued on Tuesday, the 18th of June last, by Mr. Solicitor General De Grey, for the plaintiffs in error; and by Mr. Dunning, for the defendant in error. Mr. De Grey. . . . It is objected, "that the warrant is not legal;" and "that it was ill executed," "that this warrant is too exten

sive" in the description of the person, and that it "has been abused.” Answer The power is not illegal; and the abuse of it is no objection to the warrant itself. Such warrants are agreeable to long practice and usage. . . . The greatest judges have bailed persons taken up upon these warrants; and they have not been objected to, by either courts or counsel of the greatest eminence: whereas, if they were not legal, the persons apprehended upon them ought to have been discharged. . . . Even the greatest friends to the Revolution have not objected to these warrants. From whence it must be inferred, that no objection lies against them. It is said, "that this warrant is illegal, because it is general, to take up the author, printer, or publisher." But it is legal to issue and execute a warrant against a person unknown, but only described. Indeed the magistrate issues it, and the officer must execute it, at their peril. .

Mr. Dunning, contra for Mr. Leach, the plaintiff below. . . . The warrant itself is illegal. It is against the author, printer and publisher of the paper, generally, without naming or describing them; and not founded on any charge upon oath: it is also, "to seize his papers;" that is, all his papers. No justice of peace has power to issue such a warrant. Therefore Lord Halifax could not do it as a

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justice of peace. . If "author, printer, and publisher," without naming any particular person, be sufficient in such a warrant as this is, it would be equally so, to issue a warrant generally, "to take up the robber or murderer of such a one." This is no description of the person; but only of the offence: it is making the officer to be judge of the matter, in the place of the person who issues the warrant. Such a power would be extremely mischievous, and might be productive of great oppression. . . . All the writers upon the Crown law say, "that there must be an accusation; that the person to be apprehended must be named; and that the officer is not to be left to arrest whom he thinks fit." For which, he vouched Hale's Hist. P. C. 1st part, p. 580, and 586, and Hawkins' P. C. book 2, c. 13, § 10, p. 81, and 82. Here it is left to the officer to take up any person whom he himself suspects. Lord Chief Justice Scroggs was impeached for issuing such warrants as this...

Lord MANSFIELD. I suppose this is intended to be argued again. However, I will say something at present upon it. . . . At present as to the validity of the warrant, upon the single objection of the incertainty of the person, being neither named nor described - the common law, in many cases, gives authority to arrest without warrant; more especially, where taken in the very act: and there are many cases where particular Acts of Parliament have given authority to apprehend under general warrants; as in the case of writs of assistance, or warrants to take up loose, idle, and disorderly people. But here it is not contended that the common law gave the officer authority to apprehend [without a warrant]; nor that there is any Act of Parlia

ment which warrants this case, therefore it must stand upon principles of common law.

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It is not fit, that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer. This is so as to authorities Hale and all others hold such an uncertain warrant void; and there is no case or book to the contrary. It is said, "that the usage has been so; and that many such have been issued, since the Revolution, down to this time." But a usage, to grow into law, ought to be a general usage, "communiter usitata et approbata," and which, after a long continuance, it would be mischievous to overturn. This is only the usage of a particular office, and contrary to the usage of all other justices and conservators of the peace. There is the less reason for regarding this usage; because the form of the warrant probably took its rise from a positive statute; and the former precedents were inadvertently followed, after that law was expired.

Mr. Justice WILMOT declared, that he had no doubt, nor ever had, upon these warrants: he thought them illegal and void. Neither had the two other judges, Mr. Justice YATES and Mr. Justice ASTON, any doubt (upon this first argument) of the illegality of them: for no degree of antiquity can give sanction to a usage bad in itself. And they esteemed this usage to be so. They were clear and unanimous in opinion, that this warrant was illegal and bad. . .

The other judges assenting, the rule of the Court was, "that the judgment be affirmed." Judgment affirmed.

1053. PARLIAMENT OF ENGLAND. (Cobbett's Parliamentary History. Vol. XVI, p. 6.) 1765, Jan. 29. . . . Debate in the Commons on General Warrants. On the motion of Sir William Meredith, the proceedings of the House of the 14th of February last, in relation to the question proposed, "That a General Warrant for apprehending and seizing the authors, printers, and publishers, of a seditious libel, together with their papers, is not warranted by law." . . . The decision, however, of this important question was not carried without a very long and warm Debate concerning the nature of treason: the illegality of General Warrants in any case; the actual pendency, before the ordinary courts of justice, of a case similar to that upon which it was proposed the House should now pronounce. . . . As there was no law, totidem verbis, to determine any of these points, recourse was had to the spirit of the Constitution. Parliamentary resolutions were brought against parliamentary resolutions; judicial decrees against judicial decrees; opinions of able lawyers against the opinions of others equally able; parities against parities; and all of them, resolutions, decrees, opinions, parities, one promiscuously against another.

The principal Arguments made use of on this occasion both within and without doors, were as follows: . . . If general warrants describing the offence do not give officers in general a right to seize the innocent, they throw in the way of messengers, who are to be so well paid for taking care of the offender's person, a temptation to enquire into the character and life of all persons, and thus tend in some shape to convert these subordinate ministers of justice into so many

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