who before judgment takes an husband, yet if she be found guilty, the ca. fa. fhall be awarded against her, and not against her husband, and judgment for the defendant. Middleton and Price E. 16. G. 2. Str. 1184 Smith and 993. Where an officer and another join in the fame juftification, if it be not fufficient for the officer, neither it is for the other; and wherever an officer juftifies an imprisonment under a writ which he ought to return (and all mefne procefs ought to be returned) he muft fhew that the writ was returned; but it is otherwife in the cafe of a fubordinate officer, fuch as a bailiff, for he is only to execute the fheriff's warrant. If Britton and the action be brought against him who was plaintiff, he cannot justify by virtue of an execution, unless he likewife fhew there is a judgment; for the judgment may be reversed, and it ought to be at his peril that he takes out execution afterward: but it is enough for the fheriff to fhew a writ, and if any one come in aid of the officer at his requeft, he may juftify as the officer may do, but fuch requeft is traverfable. Cole, Salk, 409. The officer cannot juftify an imprisonment for non-pay- 1 Raym. 740% ment of taxes, under the general printed warrant which the collectors have, figned by two juftices; but he ought to have a fpecial warrant. Mic. 25 Car. 24 C. B. The defendant juftified an imprisonment for that the plain- Hillyfield. tiff was indebted to him in a debt of 20. and he took out a Stanyford, latitat against him directed to the fheriff, &c. which is the fame imprisonment, &c. The plaintiff in his replication traversed that he owed him fo much money; after verdict for the plaintiff it was moved in arreft of judgment, that the debt being but inducement to the juftification was not traverfable, and a repleader was awarded. Note, that by 21 Jac. 1. c. 12. juftices of the peace, mayors, bailiffs, churchwardens, and overfeers of the poor, conftables and other peace officers, may plead the general iffue, and give the special matter in evidence. It likewife enacts, that any action brought against them, fhall be laid in the proper county; and if upon the general iffue pleaded, the fact fhall appear to be done in another county, the jury fhall find the defendant not guilty. Note likewife, that by 24 G. 2. c. 44. no writ fhall be fued out against a juftice for what he fhall do in the execution of his office, till notice in writing of fuch intended writ fhall have been delivered to him, or left at the ufual place of his abode, a month before; and the juftice may tender amends, C4 Burr. 1766. &c. Pickerfgill. Lawrence and Cox, Hil. 33 Nutting v. amends, and, in cafe the fame is not accepted, plead fuch tender in bar to the action, together with the plea of not guilty, and any other plea with leave of the court; and if upon iffue joined thereon the jury fhall find the amends fo tendered to have been fufficient, then they fhall give a verdict for the defendant. It likewife enacts, that no action fhall be brought against any conftable or other officer, or any other perfon acting by his order, for any thing done in obedience to a juftice's warrant, until demand made of the perufal and copy of fuch warrant, and the fame has been refused for the space of fix days; and in cafe the warrant be fhewed and a copy taken, and afterwards an action be brought against the contable, without making the justice a defendant, the jury fhall on producing the warrant find a verdict for the defendant, notwithstanding any defect of jurifdiction in the juftice; and if such action be brought jointly against the juftice and him, upon producing the warrant, the jury fhall find for him; and if they find against the justice, the plaintiff shall recover the cofts he is to pay to fuch defendant against the juftice, with a provifo that if the judge certify that the injury was wilfully and maliciously committed, the plaintiff fhall be entitled to double cofts. And a provifo likewife, that fuch action fhall be commenced within fix calendar months after the act committed. The officer must prove that he acted in obedience to the warrant; and where the juftice cannot be liable, the officer is not within the protection of the act. If a man be imprisoned by a juftice's warrant on the first day of January, and kept in prifon till the first day of February, he will be in time if he brings his action within fix months after the firit of February, for the whole imprifonment is one entire trefpafs. The juftice having pleaded tender of amends, the plaintiff obtained a rule for the defendant to bring the money into court for the plaintiff to take the fame, upon difcontinuing his action. An overfeer of the poor, who diftrains for a poor's rate under Jackson, K. B. a juftice's'warrant, is an officer within the protection of this act. tatt. 13 G. 3. Note, the above act extends only to actions of tort: and therefore where an action for money had and received was brought against an officer who had levied money on a conviction by a juftice of the peace, the conviction having been quafhed, it was holden that a demand of a copy of the warrant was not neceffary. Fum v. 13 G. 3. K. B. CHAP Ε CHAPTER V. Of Injuries arifing from Negligence or Folly. VERY man ought to take reasonable care that he does not injure his neighbour; therefore, where-ever a man receives any hurt through the default of another, though the fame were not wilful, yet if it be occafioned by negligence or folly, the law gives him an action to recover damages for the injury fo fuftained. As in the cafe mentioned in the third chapter, where the defendant, by uncocking his gun, accidentally wounded the plaintiff, who was standing by to see him do it. If a man ride an unruly horfe in any place much frequented, (fuch as Lincoln's- Inn Fields) to break and tame him; if the horfe hurt another, he will be liable to an action; and it may be brought against the master as well as the fervant, for it will be intended that he fent the fervant to train the horse there; or it may be brought against the master alone. 2 Lev. 172. Michael v. Aleftree & al. Raym. 739. The fervants of a carman run over a boy in the streets, and maimed him, by negligence; an action was brought against the mafter, and the plaintiff recovered. And note, that in fuch str. 1083. cafe the fervant cannot be a witness for his mafter, without a release, because he is answerable to him. So in the cafe abovementioned, if one whip my horse, whereby he runs away with me and runs over a man, the man may bring an action against such perfon; for the whipping my horfe was an act of folly, and therefore he ought to be answerable for the confequence of it. A fortiori, I might maintain an action if I received any hurt from my horfe's running away, because the confequence is more natural. However it is proper in fuch cases to prove that the injury was fuch, as would probably follow from the act done: as that many people were affembled together near the place, at the time of his whipping the horfe; or that the perfon run over was ftanding near and within fight; yet as the defendant is only to answer civiliter and not criminaliter, it does not seem abfolutely neceffary to give fuch 1 Mod. 24. Carth: 194.451. I Danv. 177. fuch proof; though to be fure fuch circumftances will have weight in diminishing or increafing the quantum of the damages. So if a man lay logs of wood crofs a highway; though a perfon may with care ride fafely by, yet if by means thereof my horse stumble and fling me, I may bring an action; for wherever a man fuffers a particular injury by a nufance, he may maintain an action; but then the injury must be direct (fuch as before mentioned) and not confequential, as by being delayed in a journey of importance. So if a furgeon undertake to cure a perfon, and by his negligence and unfkilfulness mifcarry, an action will lie; but if the perfon undertaking to make the cure be not a common surgeon, there must be an exprefs promife; becaufe if it were not his profeffion, it was the folly of the plaintiff to truft him, unless he were deceived by an exprefs promife; and the law in such case will not raise a promife. The defendant may in either case give in evidence that the plaintiff did not follow his directions, &c. As I fhall have occafion to fay more upon this head in the next book, under the title of "Cafe for Misbehaviour in an Office, Truft or Duty," and of "Cafe of confequential Da2 Raym. 1402 mages," I will only add in this place, That it is a fettled diftination, that where the immediate at itfelf occafions a prejudice, or is an injury to the plaintiff's perfon, houfe, land, &c. trefpafs vi et armis will lie: But where the act itself is not an injury, but a confequence from that act is prejudicial to the plaintiff's perfon, houfe, land, c. trefpafs vi et armis will not lie, but the proper remedy is an action on the cafe. CHAPTER VI. Of Adultery. AM now come to the last thing for which (as a perfonal I injury) an action will lie, and that is adultery. And the ac tion lies in this cafe for the injury done to the husband, in alienating his wife's affections; deftroying the comfort he had from her company; and raifing children for him to fupport and provide for. And as the injury is great, fo the damages given are commonly very confiderable: But they are properly increased or diminished diminished by the particular circumstances of each cafe; the rank and quality of the plaintiff, the condition of the defendant; his being a friend, relation or dependant of the plaintiff, or being a man of fubftance; proof of the plaintiff and his wife having lived comfortably together before her acquaintance with the defendant; and her having always born a good character till then; and proof of a fettlement, or provifion for the children of the marriage, are all proper circumftances of aggravation. On the other hand, proof that the wife had before eloped with others, or that the husband had turned her out of doors, and refufed to maintain her; and that he kept company with other women; or that he was acquainted with and confented to the defendant's familiarity with her, is proper in mi tigation of damages. So the defendant may give in evidence, that the wife had a baftard before marriage, but he will not be permitted to give evidence of the general reputation of her being (or having been) a proftitute; for that may be occafioned by her familiarity with the defendant; though perhaps, after having laid a foundation by proving her being acquainted with other men, fuch general evidence may be admitted: But for this matter of giving character in evidence, vide poft. lib. 6. But in an action for crim. con. with the plaintiff's wife, lord Mansfield laid it down as clear law, that if a woman be suffered to live as a proftitute, with the privity of her husband, and a man is thereby drawn into crim. con. and the husband brings an action, it will not lie: It is a damage without an injury. If it be not with the husband's privity, it will not go to the action, let her be ever fo profligate, but only to the damages. Pratt Ch. J. of C. B. declared himself of the fame opinion in a like cafe much about the fame time. However, in the case of Cibber and Sloper, fupra, it was holden that the action lay, though the privity and confent of the hufband to the defendant's connection with her, were clearly proved. Note, In this action it is neceffary for the plaintiff to prove a marriage in fact; which may be done either by a copy of the register, or by the teftimony of one who was prefent at the ceremony. But Mich. 1779. K. B. It is not neceffary to call one of the fubfcribing witneffes Birt v. Barlow to the register to prove the identity of the perfons married, for a copy of the regifter is fufficient evidence of the marriage in fact between perfons of the defcription there mentioned; and any evidence which fatisfies a jury as to the identity of the |