
    *Wells v. Jackson.
    October, 1811.
    1. Trespass — Joint Action — Appeal by Plaintiff. — The plaintiff cannot appeal from a j udgment In favour of all tñe defendants, except one. In a joint action of trespass, until the suit has been abated, dismissed, or decided, as to that one.
    2. Same — illegal Warrant — Effect as Evidence. — A warrant, to arrest a person of whom surety for the peace is demanded, being executed neither by a sworn officer, nor the person to whom it was directed by the magistrate, but by an individual selected by the prosecutor, who erased the name of the person appointed by the magistrate, and substituted that of the person selected by himself, is thereby rendered altogether illegal and void as a j ustiflcation, but may be given in evidence in mitigation of damages.
    3. Warrant of Arrest — Failure to Give Christian Names —Effect.—Qu^re, if the persons, to be arrested, be described only by their surnames, the counties they reside in, and their professions, or trades, without their Christian names; is not such warrant too general and uncertain, and, therefore, illegal and void? . . . J ^
    4. Same — Persons Designated as “Associates” — Effect, —A warrant, directing the "associates," of persons named, to be arrested, without mentioning the ' names of such associates, is illegal and void as to them.
    ' This case was argued November 23d, 1811, though not decided until the 26th of March, 1814. The points in controversy áre sufficiently stated in the following opinions of the judges, pronounced seria-tim.
    
      
      Trespass — Joint Action — Appeal by Plaintiff. — A verdict and judgment in favor of all the defendants, except one, in a joint action of trespass, is not a final judgment, and no writ of error will lie from it until the action has been abated, dismissed, or decided as to that one defendant. State v. Hays, 30 W. Va. 118, 3 S. E. Rep. 183, citing the principal case. See the principal case also cited in White v. Railway Co., 26 W. Va. 803. See generally, monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
   JUDGE COALTER.

A point has arisen, in the consideration of this case, which was not noticed by the bar, but on account of which, as at present advised, it appears to me this appeal must be dismissed, as being improvidently allowed. X shall be willing, however, to hear the parties on this point, if their counsel, on consideration, desire it.

This suit, which is an action of assault, battery, and false imprisonment, is brought by the plaintifE against eleven defendants. The proceedings which were had in the office are not in the record; nor is the writ, or the return thereupon. The record begins with the declaration, which was filed in October, 1801.

The next steps given us are the proceedings had in Court, at September term, 1802, when the plaintiff enters a nolle prosequi as to the defendant, Triplet; and at the same time the other defendants, “except John Black,” set aside the office judgment as to them, (from which it would seem in-ferable that there was also an office judgment as to some one else,) and plead not guilty, &c.; upon which the trial was had, at the same term, from the judgment in which the appeal is taken.

*Whether there was an office judgment against Black, or not, does not certainly appear; but the suit is neither abated nor dismissed as to him.

If there was an office judgment and writ of inquiry as to him, the same jury ought to have been charged to inquire of the damages, which might have been satisfactory to the appellant, which he might have taken judgment for; and unless he had taken it with a cessat executio, or in some other way, so as to leave open his election until the event of the appeal, and of a future trial, as to the other defendants, (should that be the consequence,) was known, the election to take the damages against Black (as he can have but one final judgment in this action) would have justified, X apprehend, a judgment for the other defendants, whatever might be the opinion of the Court as to the points arising out of the exceptions. This writ of inquiry may have been since executed, or an office judgment and writ of inquiry may since have been obtained and executed as to Black; and, at all events, at the time of this appeal, a part of the cause was still depending in the Court below, the proceedings in which might have an important effect on this judgment, so as, in fact, to justify its affirmance; and, therefore, it appears to me there has not been such final judgment in the case as to justify the appeal, and that it must consequently be dismissed as improvidently granted.

The cause taking this course, it might seem unnecessary to say any thing on the points arising out of the exceptions, as the case may again come back upon the same record, when final proceedings are had as to the other defendant; and any opinion now given would not, then, be obligatory, and would readily be departed from, if, upon further consideration, I should be dissatisfied with it. As, however, it may be some guide to the parties, and perhaps prevent future litigation between them, and the other judges thinking there would be no impropriety in doing so, I have no objections, briefly, to state my present impressions on those points.

*Edward Jackson having made oath before Hedgman Triplet, a justice of the peace for Harrison county, that he had just cause, from their threats, to fear that -Wallas, of Brooke county, lawyer, —— Wells, of said county, yeoman, and their associates, would burn his house, or beat and abuse his person, the said Triplet issued his warrant against them, by the above descriptions, to cause them to be brought before him to find sureties, &c., in the usual form.

This warrant had been originally directed by the magistrate to John M’Cully, constable, or Major John Jackson, to execute; but the prosecutor, without the knowledge of the magistrate, or Black, struck out the name of Jackson, and inserted that of Black, so that it stood directed to the constable, or Major John Black, to execute. The latter, taking with him the other defendants to assist in the execution, proceeded to execute it on —— Wallas, lawyer, of Brooke county, - Wells, of said county, yeoman, and their associates, Stephen Gappin, of the state of Pennsylvania, and-Wells, in said county,' (Harrison, I presume, that being1 the county mentioned in the caption of the commitment in which they are thus described, ) who are brought before the said Triplet, on the same day in which the warrant issued, at which time the substitution of Black was made known to the magistrate, who said it would do as well; and thereupon the said Triplet, “after examination,” (and they failing to find sureties.) committed them to jail by the above descriptions and names. William Wells, one <of these persons, (and, I presume, Wells, ■of Brooke county, as in his exception he does not state himself to have been arrested under the term associates,) brings this action. The warrant, &c. are permitted, by agreement, to be given in evidence, and to have the same effect as if pleaded; and the Court instruct the jury as to the substitution of Black, which seems to have been the main objection relied on, that, if the defendants were ignorant of that circumstance, the warrant, as to them, was not void, *but justified the arrest.

The jury found for the defendants, and an appeal was taken.

■ Two objections are taken to the warrant, as furnishing a complete justification, it being properly conceded that it was admissible in mitigation of damages.

1st. That Black could not be substituted by the prosecutor, or any other person than the magistrate, to execute it, in lieu of those to whom he directed it.

My impressions are, that this objection -is sustainable; and had we jurisdiction of the case, as at present advised, I should be for reversing the judgment, on that ground, and sending the cause back for a new trial, with direction that the warrant, under these circumstances, was not a complete justification, but only proper in mitigation of damages.

2d. The second objection is, that the warrant was general, and therefore void.

First, That it is uncertain and general as to every person.

Secondly, That it is so, at all events, as to the associates; and that part of it being uncertain, the whole is void; and that it would, therefore, not justify an arrest, ■even of those well described.

Thirdly, That, if void for either of these reasons, it is no justification for the arrest, even of the persons really complained of, ■and of whom sureties were demandable.

These are important questions; and, were I now pronouncing a final decision upon them, I would give them a farther consideration and discussion than I think it necessary to give under present circumstances.

As to the first, considering the plaintiff to be Wells, of Brooke county, and believing that a warrant is good, and will justify the arrest of an offender, who is described with reasonable certainty, although his name is not known, and that this certainty will be more or less apparent from the ■circumstances attending the transaction, and stated in the warrant; I can readily suppose, that when two persons, of another county, are found in the *county of Harrison, associated with others in threats, and an intention to violate the peace on an individual, they might be described, with reasonable certainty, in the terms of this warrant; and when this is combined with the fact, that the persons so arrested not only answered this description, but, “on examination,” were found to be the persons really complained of, I think the warrant sufficiently certain and special as to them. No description, even by name, is absolutely certain, as there may be others of the same name; its sufficiency, too, may frequently depend on matter aliunde. A warrant to take the printers and publishers of the North Briton, that being a secret transaction, was uncertain ; whereas a warrant to take the printers and publishers of the Virginia Argus and Enquirer might not. It may, perhaps, be too strict, where a description is given, to test its sufficiency by any abstract rule, where it also appears that the officer, without difficulty, made the arrest of the real parties complained of, and answering to the description given of them in the warrant. Better evidence, that they were well described, could hardly be expected.

As to the associates, that term, to-day, when the parties are together, may be sufficiently certain; whereas, to-morrow, and when they are separated, it would no longer be so. This warrant was executed on the same day it was issued; and these persons, “on examination,” also answered to that description, and were found to be the parties really complained of. As to this point, therefore, (though' I have greater doubts than as to the first,) I incline to think the warrant may have been sufficiently certain; but were" this otherwise, and I am correct as to the first,

3dly. Would this uncertainty vitiate the whole warrant?

All the persons concerned in the same offence cannot, at all times, be named, or fully described; although some of them may. If, therefore, a warrant issues, naming, or sufficiently describing, some of the persons accused, ""but which, as to others, is too uncertain to direct the officer, and which part it would be his duty, therefore, not to proceed to execute; I think he would, nevertheless, be bound to execute it on those sufficiently named, or described, and that it would be a justification, as to them, for such act of arrest.

But if a person is really guilty of a felony, or breach of the peace, and cannot be, or is not, sufficiently described in the warrant issued to arrest him, insomuch that the officer would be justified in not proceeding to execute it on any one; yet if he knows the person to be guiltj', or, from other information, proceeds to execute it at his peril, and in fact executes it on the guilty party; I incline to think it will not lie in his mouth to say that he is not sufficiently described, when the warrant is to apprehend the person guilty of that offence, and he is that person. My impressions are, from the arguments, both of the bar and bench, in the case of Money v. Leach, that if the latter had really been the printer and publisher of the North Briton, the warrant would have been considered a justification of his arrest. In this case, these persons, when brought before the magistrate, “on examination,” were committed as the persons against whom sureties of the peace were required.

If, therefore, we had jurisdiction of the case, and the first objection to the warrant had not existed, as at present advised, I should be for affirming the judgment.

JUDGE} OABEvLL.

I concur in the opinion, that this appeal was improvidently granted, and ought to be dismissed.

Considering the case, therefore, as not being properly before us, I should have declined expressing any opinion on the merits. But, as the other judges think it be may useful to the parties to be informed of the views of the Court, I have no objection to declaring, as my present opinion, that the warrant, in the proceedings mentioned, was rendered illegal and void, as against all the persons *on whom it was served, in consequence of its having been executed, neither by a sworn officer, nor the person to whom it was directed by the magistrate, but by an individual selected by the prosecutor, who erased the name of the person appointed by the magistrate, and substituted that of the person selected by himself. But although the warrant, thus nullified, could no longer be relied upon as a justification, it might well be given in evidence in mitigation of damages.

Had. it not been for this objection to the execution of the warrant, I should have thought it, under the circumstances of this case, sufficiently certain, and, therefore, legal, as against Wallas and Wells of Brooke county; but void as to all those who were embraced by the term “asso-Clcl’fcGS. * *

JUDGE} BROOKE}.

For the reasons that have been stated, I am of opinion the appeal ought to be dismissed; and I concur, also, in the idea, that the warrant on which the defendants founded their justification, is not, on the face o.f it, a general warrant, either within the meaning of the tenth section of the bill of rights, or at the common law, as settled in the case in 3 Burr., Money v. Leach. The plaintiff, under the circumstances of the case, was as well described as- was possible, for all that appears to the contrary: indeed, it is in-ferable, from the facts in the record, that, 'when brought before the magistrate, he 'would not give up his Christian name. He as described also as of Brooke county, to ■distinguish him from others, and to leave ;as little as posssible to the¿ discretion of the officer. The objection that the name of Jackson, one of the persons authorized to execute the warrant, was stricken out, and the name of Black, one of the defendants, inserted, has more force; and my present impression is, that that circumstance put an end to the authority of the warrant. In that view, it was certainly not a justification, but might have been given | in evidence in mitigation of the damages, as it appears the defendants were ig-: norant of the alteration. *Nor am I of opinion that the word “associates,” in the warrant, is so general as. to vitiate the whole of it, and to convert, what otherwise was a special warrant into a general one: many cases may be supposed in which that expression, in addition to a more precise description of persons not included in it, would be considered as sufficient. Lord Mansfield, in the case referred to, threw out of it that part of the warrant which related to the signing of the papers, because it was unexecuted: on that ground, also, the word “associates,” in the warrant, in the present case, is unimportant, as is not pretended that the plaintiff was apprehended under that description.

JUDGE} ROANE5. This an action of trespass, assault and battery, and false imprisonment, brought by William Wells against. Hedgman Triplet, John Black, and nine others, for seizing and imprisoning him on the 31st of January, 1801, and keeping him imprisoned for ten days then next ensuing, without cause, and committing other outrages upon him. In September term, 1802, - a nolle prosequi was entered by the plaintiff, as to Triplet, (the magistrate who granted the warrant herein after mentioned, ) and all the rest, except Black, having appeared by their counsel, the office judgment was set aside as to them, by consent of parties, and they pleaded not guilty, on which an issue was joined, with liberty to give in evidence, on the trial, a certain supposed warrant said to have been issued by Triplet, a justice, against-Wallas and - Wells, and their associates, and dated January 31st, 1801, together with the proceedings had under the same, subject to the opinion of the Court, whether the same, if specially pleaded, would amount to a justification, and liable to the same objections, both of law and evidence, as if they had been pleaded and demurred to, or were offered in evidence on the trial of the issue, &c. There was also another plea of son assault demesne, on which issue was also joined.

*The jury found, and only found, that the defendants were not guilty;on which, judgment was entered against the plaintiff.

At the trial, the plaintiff filed a bill of exceptions, which stated that, on the trial of these issues, the plaintiff gave evidence, of the imprisonment in the declaration mentioned; to justify which, the defendants gave in evidence the warrant hereinafter more- particularly mentioned, and which is made a part of the bill of exceptions; that the same came to the hands of the defendant, John Black, under which he, with the other defendants, arrested the. plaintiff, and brought him before Triplet, who, after examination, made the commit-, ment, also more particularly mentioned, and made a part of the bill of exceptions, and gave testimony that Black was not a peace officer; that the warrant, when issued by Triplet, was directed to the constable, or Major John Jackson, to execute, but that the name of John Jackson was stricken-out by Colonel E}. Jackson, who obtained the warrant, and that of Black inserted, before it was delivered to him; and that the same was executed and returned by Black. It was further proved, by the defendants, that Colonel Edward Jackson mentioned this alteration to Triplet after the arrest, and that he had made it, and that Triplet said it would do as well; that no peace officer was present at the arrest; and that the plaintiff was not arrested in the commission of any breach of the peace. To this evidence the plaintiff objected, and prayed the Court to reject the same under the second issue; but the Court declared its opinion to be, that the evidence aforesaid constituted “a justification of the arrest aforesaid, provided the defendants were unacquainted with the alteration aforesaid; and that the defendants were not obliged to know whether the same was formal, or to whom it had been originally directed, and that as to the same defendants the warrant was not void.”

*Under the influence of this opinion, and instruction of the Court, a general verdict was found, on both issues, for the defendants.

Although it is readily admitted that an officer, acting under a regular and legal warrant, in a matter of which the justice has jurisdiction, may justify the arrest of the person named therein, although such person be not guilty Of the offence alleged against him, it is a great aggravation of the offence of acting under an illegal warrant, that the person arrested is, in fact, innocent.

In the case before us, it is not shown, on the part of the appellees, that the plaintiff was not an innocent man; it is not shown that he had perpetrated or meditated the offence complained of. Admitting, for the present, that he was the person contemplated by the warrant, it is not shown, by legal evidence, in this action, that he had committed or meditated the act alleged against him. The contrary may, perhaps, in some degree, be inferred from its being admitted that he was not arrested in the commission of any breach of the peace. While the plaintiff rested on the general ground of his having been imprisoned, and of the general right of all our citizens to their liberty, the defendants, on the contrary, fot any thing appearing in this action, did not mean to take the special ground that the plaintiff had committed or meditated the offence complained of. They rested upon the ground of acting in obedience to a warrant, which being, in their opinion, legal, made it quite unimportant to their defence, whether the party arrested was, in fact, innocent or not. Certain it is, that the guilt of the plaintiff, in relation to the offence charged against him, is neither averred nor put in issue by the defendants. It is also certain, that the verdict of the jury is justified, without any allegation to that effect having been made or proved to them on the trial. It is justified on the ground that (under the direction of the Court) the warrant was held to be legal, and, being so held, that the party executing it should be acquitted, although the party arrested were, *in fact, innocent. The guilt of the plaintiff by no means follows as a necessary consequence of the verdict. That guilt is not only neither averred by the defendant, nor found by the jury, but is also far from being proved b3T the testimony. There is no proof whatever to that effect, unless you admit the ex parte oath of Edward Jackson, on which the warrant was granted; (which is reprobated by all the rules of evidence as proof in this cause to establish the point in question;) and, unless you also take for granted, that the very plaintiff now before the Court was the person against whom he complained, and to whom the justice’s warrant was intended to apply. In considering this case, therefore, we are to throw out of our view every idea that the plaintiff is a guilty person ; although even guilty persons are entitled to the benefit of the laws and constitution. We are to consider it as a question which (through the appellant) may, in its consequences, affect all the good people of the commonwealth.

It is not for the purpose of establishing the principle, but for that of showing it more clearly, that I rely on the innocence of the plaintiff, in the present instance. That is a circumstance entirely unimportant, when the warrant stands condemned by the force of great principles. It can never be the true understanding of those principles, that a general warranty is void where the party, arrested is innocent, and valid if he be guilty. If such warrants are void, they are so under all circumstances, and as to all persons whatsoever. I repeat, however, that there is no evidence in this cause showing that the plaintiff had done or meditated the injury complained of. The oath of Edward Jackson, showing that the plaintiff was guilty, (which, also, is not introduced into the bill of exceptions,) was taken entirely in his absence, and without the possibility of his cross-examination ; and if it be said that his guilt is inferable from his contumacy in not mentioning his name, or denying that the warrant ^applied to him, when brought before the magistrate for commitment, I answer, that it was not necessary for him, at that stage, to have done any thing; it was not incumbent on him to have pursued a course which would have released to the defendants his cause of action against them ; or, at least, would have lessened his claim to damages. The innocence of the plaintiff is, however, wholly unimportant as aforesaid, in the view I have taken of the subject, and I only mention it to show, a fortiori, the strength of those conclusions which would,' nevertheless, equally follow if he were ever shown to have been guilty.

The warrant, in obedience to which the defendants acted, is liable to several objections ; as, 1st. That it was released and altered as aforesaid, after it was issued by the magistrate, and before it came to the hands of Black. 2dly. In authorizing the constable, or Black, to arrest the “associates of — Wallas and — — Wells;” and, 3dly. On account of the uncertainty of what Wallas and what Wells were oontem- plated in the warrant. I will briefly consider each of .these objections in their order:

And, as to the first; it,is held, that all imprisonment, without- proper authority, is a false imprisonment, and the proper subject of an action, The imprisonment, in question, has been made under colour of a warrant, which, ex vi termini, means only an authority, As to an-authority, it would seem, on general principles,' that it could be executed only to the extent to which, and bj- the persons to whom, it was directed. Conforming' to these geni ral principles, it is held that the person having the authority must execute it himself, and cannot transfer it to another; for it being a trust and confidence reposed in the party, cannot be assigned to a stranger whose ability and integrity were not so well thought of by him for whom the act was to be done, The imperiousness of this rule is admitted by a case in the same book, in which, where the king directed the deputy and council *of Ireland to appoint a bishop to be installed, and the deputy was changed, it was held that his successor and council might do it; it was so held, only on the ground that it was, in fact, the same grantee (the official deputy) who still continued, though the person was changed who filled the office. In this case, the exception, and the reason of that exception, proves the rule. It is also held, that if a warrant be directed to a sheriff, he may make a warrant to his bailiff to execute it; but it is also held that a constable cannot substitute another in his room, While this authority, in relation to the sheriff, establishes the doctrine contended for, on the principle that the exception proves the rule, that part which relates to the constable comes in aid of that construction; and the argument, in relation to him, holds a fortiori as to a private person. Every argument going against the transfer of this power by the grantee himself, who may have some knowledge of the sentiments of the principal in this particular, holds a for-tiori in relation to a stranger. If that grantee cannot judge of the ability and integrity of the person to be substituted, neither can a stranger, who is still less acquainted with the views and.wishes of his principal. If neither Major John Jackson, nor even the constable, in the case before us, could judge in this behalf, and delegate to another the authority delegated to them, still less could Colonel Edward Jackson, who is under the additional objection of being a party; a party who would abuse the discretion existing in the magistrate to appoint fit and proper agents, and substitute those who would oppress his enemy. In fact, he usurped the place of the magistrate in this particular, violated the principles of the common law, in relation to the nature of an authority, and established a precedent which, if sanctioned, would lead to the greatest oppression and injustice. This act deprived the plaintiff of the shield provided for him by the constitution, in the discretion of upright magistrates; a discretion not less important as to the person, (when not a peace .officer) who-is to execute *the warrant, than as. to the substance of the warrant itself. This view of the subject is in exclusion of the circumstance that this transfer of power was made by means of an erasure. In Pig-gott’s case, it is held, that although a deed contains divers and distinct covenants,yet if any of the covenants are altered by erasure, or addition, or interlineation, this avoids the whole deed; for that it is but one deed, though it contains distinct covenants. So, in this case, the warrant is but one warrant, even if we consider that the part which constitutes the person to-whom it was directed was distinct from, the body thereof. Every argument applying to the case of a common deed, in this particular, applies with tenfold force to a warrant, - which is onljT an authority, and to that part of the warrant (designating-the person by whom it is to be executed) which laj’s the liberties and persons of the people open to the greatest oppression and; abuses.

It is essential to an authority that it should have the assent of the principal, at the time of exercising it. This was not the case of the warrant before us, in relation to the material and important point of the person by whom it was to be executed. As to that person, Black was the agent and trustee of Edward Jackson, but not of the magistrate; the magistrate had not assented to his executing the warrant. In 1 Hale, S77, it is held, that a warrant granted with a blank, and sealed, and afterwards-filled up with the name of the parts' to be taken, is void in law. So, in 1 Bac. 690, it is held, that an unlawful arrest, without a warrant, is not justified by a warrant after-wards taken out. The principle of this-doctrine is precisely in point to show, that the arrest in this case, being unlawful at the time, by reason of the erasure aforesaid, which avoided the warrant, was not made good by the subsequent consent of the magistrate. The act complained of is-to be tested by the defendant’s authority, as at the time it was committed,. which was *not then justifiable.Then it was that the plaintiff’s cause of action arose.

I readily admit that it would be hard to punish officers for acting under a warrant appearing to be regular, and with no knowledge that it had been altered. This, however, is a matter which must go in mitigation only, and can always be safely intrusted to a jury. While a contrary opinion would lead to alarming consequences, it is no hardship to impose it on officers who are paid for their services, to know that the precepts that they execute are genuine. This is but one of the perils of which there are many analogous instances in the law. If it be an evil, it is better that it should be endured, than that the citizens should be liable to be harassed by the abuses of parties. intervening between them and the magistrate, and depriving the citizen of that security which he derives from being only amenable to the proper acts of the magistrate. It is better that officers should act at their peril, in the case in question, (by the scale of which peril, too, their emoluments were probably graduated,) than that the citizens should be deprived of this shield of protection afforded them by the laws. So, in relation to private persons, to whom warrants may be directed, it is held that they are not bound to execute them. Such persons are, therefore, mere volunteers in relation to the service in question; and there is no hardship in holding them to the consequences of an office which they may either accept or decline.

On this ground alone, I should think that the officers acted under a void authority, and that the arrest could not, consequently, be justified.

As to the warrant, considered in itself, it is to arrest —— -- Wallas, of Brooke county, lawyer, and' — •-Wells, of said county, yeoman, and their associates. It is liable to the objection, that while the last part thereof, relative to the associates, is a general, as well as uncertain, the first part must also be considered as an uncertain, warrant.

As to the part which relates to the associates, nothing can be more general. It is equally as general as a warrant against the publishers of a certain paper, or the murderers of a certain man. It is, indeed, more so; for, while it is general as to who may be those associates, it is also uncertain as to the persons of whom they are to be considered as the associates. It is, therefore, much more objectionable than a warrant to arrest the publishers of a paper, which paper, however, is certainly described. There is no description, in this part of the warrant, of any person, but only of the offence. In the case of Money v. Leach, it was decided by Lord Mansfield, on a warrant to take up the publishers of a certain described paper, that it was not fit that the judging who were the publishers should be left to the officer, but it should be decided by the magistrate, who should give certain directions to the officer. That warrant would have been much more objectionable, if, in addition to the latitude given to the officer in deciding who was the publisher, a similar latitude had been given him (as in this case) as to the identity of the paper published. Lord Mansfield adds, that this doctrine is founded on reason and convenience; that Lord Hale, and all the others, had held such uncertain warrants to be void ; that there was no case in the books to the contrary; and that the strength of the principles in the case was such, that the usage proved,.from the revolution downwards, of similar warrants having issued from the department of state, could not overcome those principles, and legalize the warrant: and all the judges concurred with him, that the warrant was illegal and void.

This authority’ is conclusive, beyond the possibility of doubt, as to the illegality of general warrants. It is conclusive, at least, as to so much of this warrant as relates to the associates of Wells and Wallas. The .principle of the decision is made a part of our constitution, by the tenth article of the bill of rights. That article is in these words: “That general warrants, whereby an officer or ’’'’messenger may be commanded to search suspected places, without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.” So, by the 6th article of the amendments to the constitution of the United States, it is provided, “That the right of the people to be secure, in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, or the persons or things to be seized.”

These articles not only reprobate general warrants as being (if I may so express myself) more than void; as being grievous, oppressive, and unconstitutional, but also reprobate uncertain warrants, as being incompatible with the necessary security of the people. These founders of our liberty were not satisfied with reprobating such as were wholly and entirely uncertain, bjr being general; they also reprobated all such as were within the same mischief; all such as left the officer to judge, instead of the magistrate, who was the person intended tobe thereby arrested. It would have been doing little, if they had only embraced extreme cases; if they had established the principle, without extending it to embrace all cases within the same mischief. They, however, have not been wanting on their part; and it only requires the co-operation of the judiciary to guaranty the safety of the people.

Applying the tenth article of the bill of rights to the case before us, as relative to —— Wallas and-- Wells, it is a sine qua non of that article, that they should be named, or their identity be ascertained, by describing the offence committed. That branch of the clause which requires the “offence to be particularly described”, does not, in terms, apply to this case, of a mere preventive remedy, in which no offence has been in fact committed. *As the reference, however, to a fact alreadj' committed, is only for ascertaining the person meant in the warrant, the reason of the clause (casteris paribus) will equally apply, with the same view, to an offence meditated or intended. In both cases, it is only to ascertain the person, in defect of knowing his name, that this criterion is resorted to; and it will be sufficient in all cases, in which it will certainly answer the purpose intended. On the same principle, the 6th article of the amendments to the constitution of the United States, admits it to be enough, that the person should be “particularly described. ’ ’ The principle, and great desideratum, in all cases, and so declared to be by that article, is, that the people should be secure against unreasonable and oppressive seizures; and all the constructions on the subject should keep this end in view. Whatever name or description is so certain and unerring, as to leave no doubt who is the person intended, will attain this security; and nothing short of it.

' I presume that in a case deeply affecting the liberty and security of our citizens, one which attracted the attention of the founders of both governments in an especial manner, and involves a most summary and rigorous jurisdiction,' we ought, at least, to require as much certainty as to the name or description of the person intended, as the common law requires in the case of grants. This is certainly no great boon to ask in relation to a summary proceeding, affecting the security of every citizen of the commonwealth. We should dishonour the principles of our forefathers, if we were to allow a greater latitude in the former case than in the latter.

Taking that for the criterion, then, which is conceding a good deal — for we are told (6 Co. Rep. 65, Sir Moyle Finch’s Case) that greater certainty is required even in writs than in deeds — let us examine the present question.

It is said, in. Doctor Ayray’s Case, (11 Co. Rep. 20,) that “nomen est quasi rei nota-men;” that “nomina sunt notas rerum;’’ that names were invented to make a distinction between person and person ; and that if the person *be so described that he may be certainly known from other persons, the misprision or omission of the name of baptism does not avoid the grant. As, if it be, omnibus filiis I. S., or primogénito filio I. S., or uxori de I. S., or filias I. S., when there is but one: in all those cases the grant is good; for the grantee is ascertained beyond a possibility of mistake. So it is said that, whereas the name of the abbot of W. was Richerus, and he, by the name of Richardus, abbot of W., made a grant, the grant was held good, though the Christian name was mistaken; because his addition of Abbot of W. described the person beyond a doubt; there being but one Abbot of W. So it is held, that if I grant to I. S. and Margareta uxori suo, when her name is Margeria, yet the grant is g«od, because the terms uxori suo make the description of the person certain. So it is held, in 6 Co. Rep. 65, (Sir Moyle Finch’s Case,) that a grant made to a bastard, by the name of him who begot him, is good, if he be known by such name; and so is a grant to Richardo filio Richardi Marwood, though a bastard, if he be known by that name. In these cases, also, these last-mentioned facts, being universally known, ascertain the identity of the person intended, beyond the possibility of doubt.

I cannot find that, even in the case of grants, any thing short of this has been admitted by the principles of the common law. Certainty only is the object; and whatever will attain it, and nothing less, will suffice.

In the warrant before us, the only description given, of the Wells intended, is, that of “-Wells, of the county of Brooke, yeoman.” It is not shown, in and by the warrant, as a further description, that he was then tarrying in the county of Harrison; much- less that he was at any particular place in that county. And even if it be inferred that the Wells intended was in'the county of Harrison at the time, from the circumstance that he was brought before the magistrate on the day of the date of the warrant, it may be answered, 1st. That this appears only by matter de-hors the warrant; id est, by the ^mittimus; whereas .the warrant should contain sufficient certainty in itself; and, 2dly. That it is not a remote probability (as is shown to have been the fact in this case) that there might be two or more yeomen, of the same surname and county, abiding in an adjacent county at the same time. As to any aid to be derived to the warrant, from the complaint on which the warrant is grounded, while that is no part of the evidence in this cause, it is liable to the first objection just made to the mittimus: but, if this were otherwise, that complaint contains nothing particular and specific; nothing which is not common to all instruments of the kind, except tne names of the parties as aforesaid. The warrant, then, contains nothing in it (if I may so express myself) to locate it upon any Wells in particular. It contains no in-dicia in itself, leading to even a reasonable degree of certainty, as to the parties intended. The warrant, in itself, must steer clear of the objection of being a general or uncertain warrant. On its own face, it must stand the test of scrutiny: it cannot be helped by proofs, or matters aliunde. It is not so probable, as to amount to any thing like a certainty, that there is only one yeoman of the name of Wells in the county of Brooke. I have known many yeomen of the same name, of the same county, and even being together in another county at the same time; to any of whom a description like the present would equally apply.

This warrant, then, at most, is like a grant to one of the daughters of I. S., without distinguishing which; and which is (as before said) clearly void, for the uncertainty, in the case of a grant. It does not come within the principles of any of the before-mentioned cases, in which, although the name was defective, or omitted, the person was certainly identified, by additions or descriptions, leaving no possible doubt who was the person intended. In respect of any thing leading to perfect certainty, the warrant before us is entirely defeetive; there is nothing in it competent to “distinguish between person and person,” or to describe the person “so as that he may be’’’certainly known,” to use the language of the judges in Doctor Ayray’s Case. There is nothing to prevent the officer from oppressing any man at his own mere pleasure, as being an associate of Wells and Wallas; or any man of the surname of Wells, to whom the description of his occupation and county would apply.

But it is said, that if the name were entirely set out, yet some degree of uncertainty would exist, as there might be two or more of the same Christian and surname. While this is admitted, it is nevertheless true, that the probability thereof is remote; and that, in such case, the magistrate has done all in his power to ascertain the person.

Again, it is said, that this latitude ought to be allowed, in respect of the urgency of the transaction, the suddenness of ttíe case, and the ignorance of the party of the names of strangers. To this I answer, that he should be then more particular in his description of the offence or circumstances, so as to put the matter beyond a doubt. I answer, also, that, while all this is admitted, and these circumstances would be highly proper to go in mitigation of damages, the principle would equally go to justify cases in which no such urgency or mitigating circumstances existed. There can be but one principle in this respect, as applicable to all warrants, under whatever circumstances. There is but one boundary line, between circumstances going to justify, and to mitigate, in the case before us.

On this ground of ignorance and urgency, while I forbear to go into the cases in which a person, without a warrant, may arrest those attempting or perpetrating a crime, it does not authorize a departure from the requisite certainty, where a warrant is actually granted. In 1 Hale, 587, after laying it down, as a general principle, that a justice cannot grant a warrant to apprehend “all persons suspected,” but must name their names, it is said that an exception has been made thereto, in favour of the Court of king’s bench, who, in the case of a riot by persons unknown and disguised by visors, made an sorder on the sheriff to bring them into Court, to be examined touching the same: but the author adds, that that which was permitted to be done by the highest Court of justice, should not be a pattern for justices, of inferior jurisdictions. This exception from the general rule, in this case, is a complete answer to the plea of urgency, as relative to the jurisdiction of justices of the peace.

It is admitted that an officer cannot justify under a warrant for an offence, whereof the justice has no jurisdiction, or which is committed out of his jurisdiction ; though he may under an erroneous warrant, in cases in which the magistrate has jurisdiction, The reason of this distinction is given in 10 Co. Rep. 76, (Case of Marshalsea,) and is, that, in the former case, the whole is coram non judice, and the officer is not bound to obey him who is not a judge; that is, a judge for the purpose expressed in the warrant. This principle entirely applies in the case before us. No man is a judge for the purpose of granting a general warrant. This which was decided, on common law principles, in the case of Money v. Leach, is rendered more clear by the express provisions of the bill of rights. Such a warrant, on the principles of the English law, is held to be void, and no warrant; and a fortiori in this country; and no man can justify arresting another on the authority of such a blank piece of paper.

This requisite degree of certainty in all warrants, is not only necessary for, the security of the citizens, against the mistakes, oppression, or misjudgment of subordinate officers, but is also necessary in behalf of those officers themselves. They are justified if they act in obedience to the warrant, where the magistrate has competent jurisdiction ; that is, where they take up the person against whom the warrant issued: but how can they know who this person is, if the magistrate has given them no certain indicium to go by? This, indeed, is a minor ground; but it is equally necessary for the safety of the *officer; and (which proves it to be no warrant) without a sufficient degree of certainty, he is not bound to execute it.

It is, I believe, conceded on all hands, that this warrant, so far as it related to the associates of — ■—■ Wells and Wallas, was a general warrant, and unconstitutional and void; but it is doubted whether it is not good as to the other part, under which the persent defendants are supposed to have acted, which relates to Wells and Wallas themselves, and which is by some supposed to be sufficiently certain. Being entirely of opinion that this last part is also uncertain and void, it is not necessary for me to solve this doubt. There is no part of this warrant which is not equally liable to objection. It is not necessary for me to say, whether the interdiction, in the constitution, of general or uncertain warrants, will not, equally with an erasure, nullify the warrant in toto: or, whether the officer, resting upon the sound part of the warrant, can justify himself, in a case in which the warrant itself is reprobated by great principles, and which he might, consequently, have refused to execute. I leave these questions open for future decision.

But those gentlemen who hold that part of the warrant to be general and void, which relates to the associates, would do well to recollect that it is far from being shown, in this case, that the plaintiff was not arrested under it. It is not only very probable that there might be a --Wells, an associate, as well as-Wells, a principal, but this is shown to have been the fact, in this case, by the mittimus. That mittimus shows that a —■—• Wells was arrested as a principal, and a-- Wells (together with Gappin) was arrested as an associate; both of the county of Brooke; and it is not shown that the former is the present appellant, and not the latter. Por any thing appearing in this case, the very person arrested as an associate, and under that part of the warrant which is, on all hands, admitted to be void, may be the present appellant. My private opinion and belief is, *indeed, otherwise; but that is no sufficient foundation whereon this Court can take the fact for granted.

On these grounds, I am of opinion, that the warrant in question is illegal and void, upon the principles of the common law; on those great principles which are essential to the security of all living under a government of laws, and enjoying the blessings of freedom; principles, without which, freedom, or security from oppression, -would be but an empty name. X am of opinion that it is unconstitutional, as well as illegal and void, by the very letter, as well as spirit, of our constitutions. ItisiLlegal, unconstitutional, and void because it leaves to the discretion and judgment of the officer, not only to say who the associates of —— Wallas and - Wells are, but also to say of which Wallas and Wells the said associates were intended. It is illegal, unconstitutional, and void, in relation to - Wallas and —-— Wells, themselves, because it neither mentions their Christian names, nor supplies any satisfactory data, from which their identity can be certainly inferred. ‘

I am, also, of opinion, that this warrant, if originally good, was rendered null and void, by the erasure and interlineation, as to the name of the person by whom it was to be executed; that, without reference to the consequences of such a measure, it became thereby no warrant, at the time it was executed; and that the person who executed it acted without the authority of the magistrate.

On all these grounds, I am of opinion, that the instruction of the district Court, that this warrant amounted to a- justification of the defendant executing it, was clearly and palpably erroneous; and that the judgment rendered under the influence thereof, ought not to stand. I should, therefore, be for reversing the judgment, and awarding a new trial, on which no such instruction should be given; but for the necessity (as it, for the present, appears to the Court) of sending the cause back, because the appeal was prematurely prayed, the cause not having been then determined as to all the defendants.

* Appeal dismissed, as having been improvidently granted.

JUDGE) FLEMING. I consider this a very important case, as the liberty, quiet, and safety of all our citizens may be eventually affected by the decision.

It appears to me, that the appellant, and others, mentioned in the record, were arrested, and imprisoned, under a warrant illegal in itself, and executed by a person not legally appointed for that purpose; and to deprive a citizen of his liberty, under colour of law, is oppression and tyranny in the extreme.

By our Bill of Rights, article 10th, it is declared, that general warrants, whereby an officer, or messenger, may be commanded to search suspected places, without evidence of a fact committed, orto seize any person, or persons, not named, or whose offence is not particularly described, and supported by evidence, are grievous and oppressive, and ought not to be granted.

The warrant now under consideration appears, clearly, to me, to be of that description ; ‘ ‘commanding the constable, or Major John Jackson, to arrest, and bring before the justice who issued the same, -Wallas, of Brooke county, lawyer, and —— Wells, of said county, yeoman, and their associates,” (not named therein.) The name of John Jackson, one of the persons to whom this extraordinary warrant was directed to be executed, was erased, and the name of John Black (perhaps one of the prosecutor’s defendants and associates, for it seems to have been a party business) was substituted in his place, by the prosecutor himself, without any authority for so doing.

In the famous case of Money et al. v. Leach, in the Court of king’s bench, reported in 3 Burr. 1742, the whole Court were of opinion that the warrant, under which the defendant in error was arrested, was illegal and void, on two grounds; first, that Lord Halifax, then secretary of state, who issued the warrant, was not competent *to do so; and, secondly, for its uncertainty; it having required the apprehending and seizing the authors, printers, and publishers,, of (what was called) a seditious libel, contained in a paper, styled The North Briton, No. 45, without naming any person whatever as author, printer, or publisher, of the said paper.

Although, in England, the penal laws lean much towards prerogative, and the liberty of the press is not held so sacred as it is, and ought to-be, with us, itis laid down by Blackstone, in his Commentaries, “that a justice of the peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted; and he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays the warrant; because he is a competent judge of the probability offered to him of such suspicion. But, in both cases, it is fitting to examine, upon oath, the party requiring a warrant, as well to ascertain that there is a felony, or other crime, actually committed, without which no warrant should be granted, as, also, to prove the cause of probability of suspecting the party against whom the warrant is prayed.” 2 Bl. Com. 290, and 2 Hale’s History of the Pleas of the Crown, 580, cited.

In the case before us, it was not stated that a felony, breach of the peace, or other crime, had been committed; but that Edward Jackson made oath that he was afraid that-Wallas, of Brooke county, lawyer, and-Wells, of said county, yeoman, and their associates, would beat him, &c. Under this extraordinary, defective, and illegal warrant, --- Wallas, William Wells, Stephen Gappin, and - — — Wells, were arrested,, and committed to jail, the two latter said (I suppose by the prosecutor) to be associates of ——■ Wallas and--Wells; and, although thej’ are not before this Court, for reasons that do not appear, yet the proceedings serve to show the evil consequences that might result to the community at large, or to a great portion of our citizens, should they be sanctioned, or countenanced by this Court.

*1 am clearly of opinion, upon the whole, that the warrant under consid-ertion is illegal in its origin, and was illegally executed; and that the instruction given to the jury by the Court below, was erroneous. But it appears, by the record, that there was a writ of inquiry against the defendant, Black, which seems not to have been acted upon; the judgment was, therefore, incomplete, and the appeal improvidently granted, and must, consequently, be dismissed. 
      
       1 H. & M. 488; 2 H. & M. 40; Ibid. 357; 1 Sauna. 207, note (2); 6 Term Rep. 199; 3 Tucker’s Bl. Appendix, 48.
     
      
       2 Wilson, 47, Burslem v. Fern.
     
      
       3 Burr. 1744, Money, &c. v. Leach.
     
      
       8 Burr. 1761, Ibid. 176B.
     
      
      So in tlie exception, but should it not he first ssue f — Note in Original Edition.
     
      
       Buller’s N. P. p. 22.
     
      
       Ibid. p. 83.
     
      
       1 Bac. Abr. 380.
     
      
       Ibid. 319.
     
      
       1 Hale, 581.
     
      
      
         Ibid.
     
      
       11 Co. Rep. 28.
     
      
       1 Bac. 314.
     
      
       1 Hale, 581; 2 Hale, 110.
     
      
       3 Burr. 1742.
     
      
       2 Hawk. 81.
     
      
       4 Bl. Com. 290.
     