Parsons v Lloyd
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1779 |
| Date | 01 January 1779 |
| Court | Court of the King's Bench |
English Reports Citation: 96 E.R. 498
COURTS OF WESTMINSTER-HALL
parsons v. lloyd. Capias is void, where a term intervenes between the teste and the return: and, if executed, action of false imprisonment lies against the plaintiff. S. C. 3 Wils. 341. In trespass, assault, and false imprisonment: pleas, 1. Not guilty, on which issue was joined : 2. A justification ; for that the plaintiff Parsons was indebted to him, the defendant Lloyd, 211. 12s., for which, before the said imprisonment, viz. on the 27th of October, 1770, he sued out a capias returnable in eight days of St. Hilary for 421., and marked the same, for bail, to the amount of 211. 12s. ; which being delivered to the sheriff, he made hia warrant to Eichard Harrison, who, at the requisition of the defendant Lloyd, afterwards, and before the return of the writ, viz. on the 6th of November, 1770, [846] arrested the plaintiff Parsons thereon. The plaintiff replies, that the said writ of capias issued erroneously, and that after the return thereof, but before the issuing of the original, viz. on the 2d of May, 11 Geo. 3, the said writ was set aside by rule of Court. To this the defendant demurred, and the plaintiff joined in demurrer. Walker, for the defendant, insisted, that this replication was no answer to the plea, and that the plea was good, because the process is the act of the Court or its officers; and, though erroneous, it will justify the sheriff or others acting under him. It ought doubtless to have been made returnable in Michaelmas, and not in Hilary term; but we are not to answer for the officer's mistake. If it had been knavishly issued, by the procurement of Lloyd, on purpose to oppress the plaintiff, an action would have lain against him, but an action on the case, not in trespass. And cited Cro. Car. 196, Salmon and Percival; Popham, 205 (u). Glyn, for the plaintiff, argued, that a writ, with a term intervening between the 2BLACE.W.M7. MICH. TERM, 13 GEO. III. C. P. 499 teste and return, is not only irregular, but absolutely void: Selden's case, 1 Rush-worth, 364; Bro. Continuance, 48; Fitzherbert's Continuance, 3; Cro. Eliz. (467); Dyer, 175; Smith and Bouchier, 2 Barnard. 333; Stra. 993 (w); all shew that no justification can be under a void writ or process. A distinction is always made between officers and parties; officers may justify under irregular writs ; parties not. Philips and Biron, Stra. 509, shews, that writs, if set aside, will not justify...
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