afl the magiftrates had, done which was to be taken as a fatisfac [Laurence J. That cafe is ruled by two 1804. EAGCOMES against KODD and Others. of It [Laurence J. It [300] action of debt on an obligation for 20% that a furrender of a copyhold by S. (a ftranger) to the use of the plaintiff in fatisfaction of the 20). which the plaintiff accepted, was no good plea.] mentioned in 1 Com. Dig. 107. as having been juftices; feemingly therefore with doubt. [LawrenceJ. No doubt is fuggefted either in the Digeft or in the Report. And the cafe which came on twice in court was fanctioned altogether by the opinions of three of the Judges, the fourth not being present on either occasion.] At any rate it is an anomalous cafe. And it might have been a mere voluntary, interpofition of the ftranger; for it is not faid that he furrendered the copyhold at the request of the obligor. Burrough in reply. The confent of the justices to the plaintiff's discharge was a mere nullity; for after they had committed him for want of fureties for trial, they were functi officio. The ftatute of William having given the penalty to the Crown is decifive of this cafe: and it is not neceffary to confider what difference it would have made if the whole penalty had been given to the profecutor. If the plaintiff would have been convicted, if the prosecution had not been abandoned, then public justice has been defeated, and the Crown deprived of the penalty in confequence of this agreement: If, on the other hand, the plaintiff would have been acquitted, then there has been no consideration for his agreement to forbear his remedy. In either (a) Cro. Eliz. 541: This cafe is reported amongst the cafes of Hil. 39 Eliz., but it is noted at the beginning of the cafe as of Trin. 36 Eliz., and it is faid in the report to have been afterwards in Eafter Term 31 Elix. (which must be a mistake in the print) adjudged for the plaintiff. But in Rol Abr. 471. this account is given of it: "If the condition of an obligation be to pay 20l. at a certain day, and a fran ger surrender a copyhold to the use of the obligee in fatisfaction of the 20%. which the obligee accepts; this is a good fatisfaction and discharge of the obligation. Trin. 39 Eliz. B. R. inter Grymes and Blofield." cafe [301] 1804. against RODD cafe the plea is bad, as founded either on an illegal agreement or on a nudum pactum. The cafe of Collins v. Blantern(a) EDGCOMBE went on the ground that the compromife of the prosecution was illegal. There is no ground for faying that two witneffes were required in order to convict; and if the death of witnesses was the reason for dropping the profecution, it fhould have been fo ftated, and the plea fhould have taken another form. and Others. [302] Lord ELLENBOROUGH C. J. The pleas are bad at any rate; whether on the ground ftated in the cafe of Grymes v. Blofield, which has been mentioned, that the fatisfaction, if any, proceeded folely from a stranger, for so Marshal must be taken to be as to these defendants; or upon the ground which has been principally relied on at the bar, that this was an illegal agreement, and no confideration for it could arife to the plaintiff out of the acts of the defendants. The toleration act in order to protect religious congregations in the exercise of their worship, has an◄ nexed a penalty of 20l. on perfons guilty of disturbing them; and, in order to fecure the public in the interval between the commiffion of the offence and the trial of the offender, it has required the magistrate before whom the complaint is lodged, to take fecurity from the offender, or in default of giving such fecurity, to commit him to the next feffions. Then, instead of abiding the time of his delivery, when he should be discharged in due courfe after trial, in cafe he established his innocence, he ftipulates with the profecutor and the committing magistrates that the profecution fhall be dropped, and that he fhall be dif charged for want of profecution. Such an agreement has a tendency to produce impunity for the commiffion of the offence which the Legiflature meant to prevent; it stops the means of the Crown to recover the penalty of 20%. in cafe the plaintiff had been profecuted and found guilty. In Collins v. Blantern an agreement to put an end to a prosecution for a misdemeanor, was confidered to be illegal, as impeding the courfe of public juftice. And this produced the fame mischief. GROSE J. The facts ftated cannot amount to a legal fatisfaction of the trefpafs in this cafe; for the agreement stipulating for the plaintiff's discharge for want of prosecution, was illegal and void. Put the cafe that the plaintiff was guilty; then public juftice has been defeated, and the agreement was illegal. (a) 2 Wilf. 341. But But if he were innocent; then he would have been entitled by law to his discharge; and the defendants having only confented to that which by law he was entitled to have, have made him no fatisfaction. 1804. EDOCOMB2 against RODD and Others. LAWRENCE J. I hold thefe pleas to be bad on the ground of there being no fatisfaction fhewn in them. If the plaintiff were guilty, the profecution ought to have been proceeded on, and the defendants can claim no benefit from any thing they may have done to prevent it. The juttice of the country has been defeated. But if the plaintiff were not guilty, what benefit can he be faid to have received from the defendants in fatisfaction of the wrong he has received? The juftices having committed him to custody, as it now appears without any ground for it, they only agreed that they would not add injury to injury by [303] confenting that the profecutor should not go on with an unfounded profecution. But what fatisfaction is there in that for the injury already received? Then if the cafe in Cro. Eliz. be law, the pleas are bad on another ground, that fatisfaction from a ftranger is no fatisfaction in law. Lord C. B. Comyns does not appear to doubt the cafe by his manner of ftating it; for having first stated inftances of accord and fatisfaction which are grad pleas, he next ftates thofe that are not good; amongst which latter the cafe in queftion is claffed; and he himself expreffes no diffatisfaction with it. LE BLANC, J. The pleas cannot be supported on the grounds tated. The fatisfaction, if any, moved altogether from Marshal the profecutor. The juftices by merely consenting to Marshal's dropping the profecution, did nothing for the benefit of the plaintiff. This it must be remembered was a profecution for a public misdemeanor, and not for any private injury to the profecu tor. If then the plaintiff had been rightly committed by the magiftrates, they should have taken no part in any bargaining whether the profecution were to go on or not. If the plaintiff had acted illegally in what he had done, there could be no legal confideration for fuch an agreement in their confenting to stop the prosecution. And if he had not acted illegally, then their confenting to Marshal's dropping an illegal profecution, to which their confent was not neceffary, would be no confideration to the plaintiff for giving up any right of action he might have against the defendants for the part they had before taken in the tranfaction. Judgment for the plaintiff. 1804. Friday An indie and rescue, iffued their virtue of which T. B. was proceed ing to arrest W. within the The KING against OSMER. THE fecond count of the indictment stated, that the mayor ment for an and senior bailiff of the town and county of the town of affault, falfe imprisonment Poole, the judges of the weekly court of record of the faid town and county, by their writ iffued out of the faid court, dated 14th ftated that the July, 43 G. 3. directed to W. C. and T. Brown ferjeants at mace Judges of the Court of Re- of the said town and county, did command them to take B. Willis, cord of the if he thould be found in their bailiwick, and keep him fafely, town and coun- &c. fo that they might have his body before the mayor, &c. on, ty, &c. of P. &c. to answer J. S. in a plea of trefpafs on the cafe, which same writ, directed writ, on, &c. at, &c. within the jurifdiction of the faid court, to T. B., one was delivered to the said T. Brown, one of the ferjeants at mace of of the ferjeants the faid town and county, to be executed in due form of law: by at mace of the faid town and virtue of which faid writ the faid T. B. afterwards, &c. on, &c. county, to ar- at, &c. at the town and county afore said, and within the juris reft W., by diction of the court aforefaid, was proceeding to arrest the faid B. W. according to the exigency of the faid writ. And that the defendant, with others unknown, afterwards, &c. in the town and county aforefaid, and within the jurisdiction of the jurifdiction of faid court, in and upon the said T. B., then and there being one the faid court, of the ferjeants at mace aforefaid, and in the due execution of his but that the faid office, did make an affault, and did also imprison him, &c.; and that the defendant and the said others unknown, with force and arms, &c. did violently prevent the faid T. B. from arrefting the faid B. W., as by the fame writ he was commanded, &c. After verdict for the crown, it was moved to arreft the judg reft: held fuch ment, 1ft, because it did not appear that the writ fet forth in the indictment was one under which Willis could legally have been arrested. For by the stat, 12 G. 1. c. 29. extended to inferior courts by ftat. 19 G. 3. G. 70., where the caufe of action shall not amount to 10%, the plaintiff shall not arrest the body of the the court and defendant, but merely ferve him perfonally within the jurisdiction with a copy of the process; and where the cause of action judgment after a general verdict on fuch a count as for a common affault and falfe imprisonment; because the jury must be taken to have found that the affault and imprisonment was for the caufe therein ftated, which caufe appears to have been that the officer was attempting to make an illegal arreft of another, which being breach of the peace, the defendant might, for aught appeared, have lawfully interfered to prevent it. defendant af faulted 7. B. in the due execution of his office, and pre vented the ar indictment bad; it not appearing that T.B. was an officer of that there could not be shall amount to 10/. or upwards, an affidavit of the debt shall be made," and the fum specified in fuch affidavit shall be indorsed on the back of the writ, for which fum fo indorfed the officer to whom the writ shall be directed fhall take bail," &c. And "if no fuch affidavit and indorsement shall be made, the plaintiff fhall. not proceed to arrest the body of the defendant," but shall proceed as before directed in cafes where the caufe of action is under 10. 2dly, It was objected, that it did not appear that Brown was a legal officer of the court out of which the writ iffued, or that he had authority to execute it. He is only alleged to be" ferjeant at mace of the faid town and county." 1804. The KINC against OSMER. Jekyll and A. Moore now fhewed caufe, and in answer to the first objection cited Whiskard v. Wilder (a), where upon demurrer to a declaration on a bail bond, because it did not fet forth that the debt was fworn to by the plaintiff and the fum fworn to marked on the writ, and so no authority appeared to arreft the defendant; it was holden not to be neceffary; and that the ftat. 12 Geo. 1. was merely directory to the fheriff, who is anfwerable for the omiffion if he proceed to arrest upon fuch a writ: but that the procefs was not thereby avoided, and the rest was still good. Befides, this part of the count is merely [ 36 ] inducement to the obftruction, which is the gift of the charge. As in R. v. Wright (b), where in an indictment for fuffering two perfons to escape who were committed by juftices of peace for a forcible entry, against the ftat. 8 H. 6. it was objected, that the indictment did not fet forth the manner of the commitment, nor even allege generally that it was debito aut legitimo modo : yet it was holden well enough, being but inducement to the offence. But at any rate, it being afterwards stated in this indictment that Brown was proceeding to arrest Willis "according to the exigency of the writ," and that the affault was made upon him " in the due execution of his faid office," it must be intended that he had a lawful writ to authorise an arreft; according to Hart's cafe (c), where because in an indictment for a rescue it was stated, that by virtue of a plaint before fuch a sheriff the party was lawfully arrefted, it was intended that the officer had a good war rant. As to the 2d objection, that the officer is not sufficiently described to be an officer of the court; he is stated to be the ferjeant at mace of the town and county, which must be co-extensive (c) Cro. Fac. 473. with (a) 1 Burr. 330. (b) 1 Ventr. 169. |