1804. The KING against OSMER. [307] [308] with the jurifdiction of the court, described to be "the weekly court of record of the faid town and county," as in Long's cafe (a). And it is afterwards stated that Brown was proceeding to arrest Willis within the jurifdiction of the court, and that he was affaulted in the due execution of his office. The ferjeant at mace of the town and county must ex vi termini be taken to be the proper officer to execute the process of the court of record of the faid town and county: admitting that according to Grant v. Bagge (b), one who is not the proper officer of a court cannot justify an arreft under a writ directed to him for that purpose. [Lord Ellenborough C. J. If Brown had been stated to be the ferjeant at mace of the court, there might have been more ground for intending that he was the proper officer of the court to execute its process; but we can intend nothing to this purpose from the allegation that he was the "ferjeant at mace of the town and county." I do not fee how this objection can be aufwered. Lawrence J. A ferjeant at mace ex vi termini means no more than one who carries a mace for fomebody; but for whom does not appear in this cafe.] It is incident to every court to appoint its own officer to execute its procefs, unless fime fpecial officer be appointed by the common law, or the peculiar conftitution of the particular court. 1 Rol. Abr. 526. F. pl. 1. And any act defignating an individual to execute its procefs is an appointment. And it will not be intended that the court at Pogle did not know their proper officer. In Raftal's Entr. 167. there is a precedent of a writ iffued miniftro curiæ, but not ftated ibidem, nor that he had the execution of procefs. [Lord Ellenborough C. J. Minifire curia implies that he was the officer of the court at the time.] At all events fufficient appears on the face of the count to sustain the judgment as for a common affault, or at least for an imprisonment, which latter is not justified, however illegal the arreft may appear to be. As in Pallant v. Roll (c), where in trefpafs for hunting, laid upon the stat. 4 & 5 W. & M. against the defendant as a diffolute perfon, &c.; though the plaintiff failed in proving the special circumstances under the statute, yet held he might recover as for a common trefpafs. Lord ELLENBOROUGH C. J. Though the jury in finding the defendant guilty generally upon the fecond count must neceffa rily have included the affault; yet finding as they do the whole count, we must take it that they found the affault committed under the circumstances charged in that count. Which brings the cafe back to the objection which I before stated to be decifive, that Brown is not ftated to be an officer of the court, and confequently no authority is fhewn for his making the afrest. Procefs ought always to be directed to a proper known officer; otherwife, if it may be directed to any ftranger, it might be refifted for want of knowledge that the party is an officer of the Then taking the whole count together, the jury in effect find that there was an affault and imprisonment, but committed under circumstances which juftified the defendant. For if a man without authority attempt to arrest another illegally, it is a breach of the peace, and any other perfon may lawfully interfere to prevent it, doing no more than is neceffary for that purpofe; and nothing further appears in this cafe to have been court. done. The other Judges agreed. Judgment arrested. Gibbs, Lens Serjt. Dampier, and Jervis were to have fupported the rule. 1804. The KING againft OSMER. * The KING against The Inhabitants of KEYNSHAM. THE pauper Thomas Mofs, being legally fettled by birth at Keynsham, in the month of October 1791, was bound apprentice for 7 years to Jofeph Cromwell, who refided at Bath, The fum of five guineas was agreed to be paid by the father to the mafter as a premium, and was the fum inferted in the indenBut the only fum which appeared to have been paid was the fum of four guineas, which was paid at the time of dating and executing the indenture. The Seffions, on appeal, confidering the indenture as void under the ftat. 8 Ann. c. 9. confirmed the original order of justices, by which the pauper, his wife and child, had been removed from the parish of Westwood in the ture. Saturday, Where a fam and the duty paid accordingly, by ftat. 8 Ann. c. 9. held well, though in fact only 4 guineas were paid; for the full fum received, given, paid, agreed or contracted for, as required by the act, was inferted, and the duty paid for it, and the ftamp ufed was of the fame defcription and the duty appropriated to the fame fund as if 4 guineas only had been inferted and paid for, fuppofing that would have fufficed. * [309] county 1804. The KING again! The Inhabitants of. KEYNSHAM. [310] county of Wilts to the parish of Keynsham in the county of Somerfet. It was admitted on the argument of the cafe, that the duty had been paid on the fum contracted for. Caferd, in fupport of the orders, infifted that the indenture was void under the 35th and 39th fections of the ftat. 8 Ann. c. 9.; for the provisions of the ftatute were not fatisfied merely by inferting in the indenture the fum contracted for; but the Tum actually paid fhould have been ftated; and the stamp propor tioned accordingly. The feveral words ufed in the act, namely, "fum or fums received, or in any wife directly or indirectly given paid, agreed, or contracted for with any apprentice,” were inferted for the purpose of embracing every poffible cafe, and were to be confidered diftributively, with reference to the particular nature of the tranfaction at the time of executing the indenture. Thus if the contract at that time were as far as regarded the premium executory, it was neceffary to infert in the indenture the fum which was agreed or contracted for: and to that contingency thofe words in the act were meant to apply: but if the premium were actually paid at the time of executing the indenture, then the fum paid fhould be the fum stated; to meet which latter event the words received, given, and paid were included in the ftatute. To put a different conftruction on the at would be to give an option to the mafter to infert either the fum agreed for or the fum paid; and in cafes, the reverfe of the prefent, where the fum contracted for might be less than the fum actually paid, an evasion of the duty impofed by that act, tu confequence of fuch a fuppofed direction, might be practifed. If this conftruction were juft, it was no anfwer to the objection that a larger fum than that paid was in this case inserted in the indenture. Both the 35th and 39th sections require that the fum fhould be truly inferted: and if a different, though a larger, fum were mentioned, it could not be contended that the words of the statute were complied with. In Farr v Price (a) the Court held that a stamp of greater value than that required invalidated a promiffory note, though it were applicable to the fame kind of inftrument; and the fame reafoning applies to this cafe, in which it may as well be urged that the letter of the ftatute of Anne should be strictly observed, and that no other than the precife fum paid fhould be ftated in the indenture. Jekyll, contrà, was ftopped by the Court. 1804.. The KING againft ants of GROSE J. (a) In conftruing the act of parliament, we muft attend to the intention of the Legiflature, which was to raise a revenue by the payment of certain duties upon indentures The Inhabitof apprenticeship, &c. and to take care that the public were not defrauded of the fair duty. For this purpose the act requires KEYNSHAM. (f. 35.)" that the full fum of money received, or in any wife di- *[31] "rectly or indirectly given, paid, agreed, or contracted for," with the apprentice, " fhall be truly inferted in words at length" in the indenture, &c. under a certain penalty; and then the fubfequent claufe (f. 39.) avoids the indenture "if the fum "received, given, paid, fecured, or contracted for" be not fo truly inferted. Now by requiring the full fum to be inserted, it meant that not less than the fum upon which the duty was really payable should be inferted: and here not only the full fum, but in truth more than the fum for which the duty was payable has been inferted, and the duty paid upon fuch larger fum. There has therefore been no fraud upon the public, but the whole which the act required, and even more, has been complied with and therefore there is no ground for the objection. LAWRENCE J. Even fuppofing that the exact sum which the mafter had contracted for and was entitled to receive with the apprentice were required by the act to be inferted, ftill the objection would not hold in this cafe. For it appears that five guineas, which is the fum inferted in the indenture, was the fum contracted for; and though the mafter has in fact only received four guineas, yet I know no reason why he may not recover the remainder in an action. The objection would have been more plaufible if four guineas only had been inferted in the indenture, and the duty paid upon that. Taking it however that the four guineas only, which have been in fact received by the master, were all he was to have, ftill the words of the act have been complied with, requiring the full fum paid to be inferted; for here the full fum paid and more has been inferted, and the duty paid upon it. The case of Farr v. Price does not apply; because there the stamp ufed was one appropriated to notes of a higher denomination. The ftamp duties raised by different acts on different inftruments are appropriated to the payment of the intereft of different funds; and if the proper ftamp appropriated (a) Lord Ellenborough C. J. was abfent at Guildhall. VOL. V. R to [312] 1804. The KING to the specific inftrument were not made use of, though an equal or higher stamp, intended for a different inftrument, were ufed, the intereft of the fund might turn out deficient for which against The Inhabi. the duty was impofed. In that cafe the ftamp ufed was not the ftamp required by the act of parliament for a note of that KEYNSHAM. amount. But no such objection arifes here: the duty impofed, whether more or lefs in the particular inftance, is all applicable to one fund, and the fame description of stamps is required. tants of LE BLANC J. If the act is to be conftrued according to the intention of the Legislature, it is clear that fuch intention has been complied with in this cafe; and if we look to the words of the act, they will be equally fatisfied by what has been done. The intention of the Legislature was to raise a stamp duty in proportion to the fum paid with the apprentice. For which purpose they have required, by s. 35. that the full fum received or in any wife given, paid, agreed or contracted for, fhall be inferted; and by f. 39. the indenture is avoided in which fhall not be inferted the full fum received, or given, paid, fecured, or contracted for, or whereon the duties payable by this act "fhall not be duly paid, &c. according to the tenor and true "meaning of this act." Now the full fum, according to the [313] tenor and true meaning of the act, has been inferted; and the proper flamp appropriated to this defcription of inftruments has been used; which differs this from the cafe cited. Orders quashed (a). (a) Vide Taylor v. Hague, 2 Eaft, 414. S. P. |