
    Dom. Rex vers. Gay.
    A Justice has no Power to issue a Capias to bring before him a Person charged with Neglect in mending Highways.
    A Warrant irregular on its Face is no Justification of the Officer.
    GAY was indicted for assaulting and beating the Sheriff in the due Execution of his Office. The Case appeared to be this: Gay by Virtue of the Province Law relative to Highways, 5 W. & M. c. 8, & 11 G. 1, c. 3, () was warned to mend the Highways, and upon Complaint to a Juftice that he had neglected his Duty therein, the Justice made out a Warrant to bring Gay before him to answer for the Neglect. Dean, the Sheriff, having the Warrant, took Gay, who rescued himself and beat the Sheriff. The Question was, whether that Warrant should be given as Evidence of Dean’s Right to take Gay, the Assault being confessed and justified.
    1763.
    
      Otis.
    
    The Justice had no Right to issue a Capias in this Case, and if so, Dean made the first Assault. A Warrant from an inferiour Court is less respected than from a superiour, yet even a Warrant issuing from this Court, illegally, would be a Trespass in the Person granting, and also in the Person executing it. It falls within that Rule, that the Officer executes at his Peril. This Court will not issue previous Process against the Body, when Execution can only go against the Goods; this is the Reason why original Summons issues against Executors and Administrators and Trustees, of absconding Debtors. Difference between this Case and that of Assessors who have Authority of the Person. () Every Officer is bound to know what is within the Jurisdiction of the Court. Hawkins’s Plea, 81. ()
    
      Thacher.
    
    The Justice has a Right to convene, and this Capias issued for that Purpose, &c.
    
      
      (2) The provisions of these statutes are that in case of neglect “ upon complaint and proof thereof before the next justice of the peace, without reasonable excuse made, and allowed by such justice, he shall cause to be levied of every such offender’s goods the sum or penalty of two shillings and sixpence,” &c. Anc. Chart. 268, 440.
    
    
      
      (3) Prov. Law, 4 G. 2, Anc. Chart. 477. Gen. Sts. c. 12, § 13. 8 Met. 102.
    
    
      
      (4) 1 Hawk. c. 10, § 4.
    
   Warrant not admitted, () 3 Judges against it, 2 doubtful. In Consequence of this,

Defendant acquitted.

N. B.

N. B. Mr. Thacher says that in a Case at Barnstable (Mayhew Wadsworth,) the Ch. Just, held, an irregular Warrant might be admitted in Justification of the Officer, and that the Court were wrong in the Case of Gay on the other Side. () 
      
      
        (i) An illegal warrant is a justification only when regular on its face, and apparently within the jurisdiction of the court or magistrate issuing it. Fisber v. McGirr, 2 Gray, 45. Clark v. May, 2 Gray, 410, 413.
     
      
      
        (6) The case referred to is Cornelius Bassett v. Wadsworth Mayhew & al. May Term 1763, which was an action of trespass for shooting the plaintiff, a deputy sheriff, in the leg, while he was endeavoring to arrest the defendant by virtue of the following warrant:
      “ Dukes County ss : To the Sherriff of said County, his Under Sher-[seal.] “ riff of Deputy, Greeting. Whereas Robert Allen of Chill- “ mark in said County, Gentn. Has this Day appeared before “ the Justices of our Lord the King at His Majesty’s Court of “ General Self:s of The Peace, and made Complaint That he being in “ the Execution of his office as Corroner, at the House of Zacheus “ Mayhew Esq in Chillmark in the County aforesaid: Lawfully au “ thorized by a Mittimus to carry one Jerusha Mayhew to his Majesty’s “ Goal in Edgartown in said County, he was there opposed in his said “ Office by one Wadsworth Mayhew of said Chillmark by violently “ seizing the body of the said Jerusha & holding her, and Prevented his “ Carrying said Jerufha to his Majesty’s Goal: Which Doings of said “Wadsworth is Contrary to Law, &c. These are therefore in His “ Majesty’s Name, To Require You or Either of You forthwith to “ take the Body of the said Wadsworth (if he may be found in your “ Precinct), Against all Opposition to enter any House where you shall “ suspect him said Wadsworth to be, & to bring him forthwith before “ the Justices of Our Lord the King at his Majesty’s Court of Genral “ Seif:s of the Peace now Sitting in Self:s at Tilbury : So that he may “ be Dealt with According to Law in the Premises. Hereof fail not “ & make Return of this Writ with your Doings therein into f'd Court.
      “ Dated at Tilbury The 26th Day of Octor. Anno Dom : 1762 & In “ the Third Year of his Majesty’s Reign.
      “ Per Order of Court
      “James Athearn Cler.”
     