and assistance found for the poor; and this upon an express (1), or an implied promise. (2) } But where a pauper certificated by G. was removed by a common order of removal from M. whither the overseert telrð of M, delivered the pauper to the overseer of G. who received him and paid 87. 9s. 4d. demanded from him by the former for maintenance of the pauper during the preceding four years, it was held that the latter could not recover it. back from the overseer of M. in an action for money had and received. For even if the certificate is informal in not being directed to M. by name, it is evidence that G. has acknowledged the pauper as their parishioner, and it is allowed that he has been maintained four years by M., admitting therefore that the money could not have been a demanded by the defendant, (which it was unnecessary to decide) yet being an honest debt, and the plaintiff having once paid it, shall not by this, which is an equitable action, recover it back again. (3) ...Actions most frequently brought against overseers are for things done, either without, or in violation of their authority. As for making an illegal distress, under a void warrant. (4) Actions are also given in some instances for the recovery of penalties inflicted upon them by statute for a violation of their duty. (5) (1) How v. Keech, 1 Bott, 347. Pl. 382. Rex v. Woodsterton, 2 Bar. nard. K. B. 207. 340. (2) Simmons v. Wilmot, 3 Espin. Ni. Pri. Cas. 92. See the opinion 3 (3) Farmer v. Arundell, 2 Black, Rep. 824, oibrios sɗT JI (ɛ) 480 Protection of parish officers. 43 Eliz. c. 2. s.19. Plead the general issue, and have treble damages. 7 Jac. I. c. 5. 21 Jac. I. c. 12. May plead ge neral issue. r Jac. I. c. 5. Entitled to double costs. 21 Jac. I. c.12. Plaintiff must bring his action where the cause of it originated. 17Geo.II.c.38. SECT. II. Protection of Parish Officers in the Discharge of their As a party aggrieved by the misconduct of parish officers is entitled, on the one hand, to recompence in damages, for an injury received; the law, on the other, wisely interferes for the protection of its officers, and to prevent their being harassed with vexatious suits and frivolous litigation. These protections are chiefly created by the following statutes: 43 Eliz. c. 2. s.19. enables him to plead the general issue, where an action is brought for any thing done under the authority of that act; and if a verdict is found for him, or the plaintiff is nonsuited, he shall recover treble damages, together with his costs. (1) $7 Jac. I. c. 5. and 21 Jac. I. c. 12. enables them to plead the general issue, in actions brought for any thing done, touching or concerning their office, or by virtue thereof. 7 Jac. I. c. 5. gives them double costs where they obtain a verdict, or the plaintiff is nonsuit, or discontinues; and by 21 Jac. I. c. 12. unless the plaintiff proves the cause of action to have originated within the county in which thes action is brought, he shall be nonsuited. 17 Geo. II. c. 38. s. 8. protects them against vexatious 5.3. press actions, where they have distrained for non-payment of them in case of poor's rates, by enacting, that when the sum the distress is s. 8. Protects informal dis tresses. made for, is justly due, it shall not be deemed unlawful, (1) That as to his single costs, Butterton v. Furber, 1 Brod. & Bing. 517 nor the parties making it trespassers, on account of any defect or want of form in the warrant for the appointment of the overseers, or in the rate or warrant of distress; but the party aggrieved shall recover full satisfaction for the special damage, and no more, in an action of trespass on the case. them to tender amends. By sect. 8. no plaintiff shall recover for such complaint, Sect.8.enables if tender of amends hath been made by the parties distraining, before action brought. By 24 Geo. II. c. 44. s. 6. no action shall be brought against any constable, headborough, or other officer, for any thing done in obedience to a justice's warrant, "until demand hath been made or left at the usual place of his abode by the party or parties intending to bring such action, or by his or her attorney or agent, in writing signed by the party demanding the same, of the perusal and copy of such warrant; and the same hath been refused or neglected for the space of six days after such demand." 24 Geo.II. c.4. copy of war rant to be de manded. By sect. 6. in case after such demand and compliance Sect. 6. when therewith by shewing the said warrant to, and permitting tice to be made granted, jus a copy to be taken thereof by the party demanding the a defendant, same, any action is brought against such constable, head- &c. borough, or other officer, or against any person or persons acting in their aid, for any such cause, without making the justice or justices who signed or sealed the warrant, defendants, the jury shall give a verdict for the defendant, notwithstanding any defect in the justice's jurisdiction; but if the action shall be brought jointly against the justices, and also against such constable, &c. or persons acting in their aid, then on proof of such warrant, the jury shall find for such constable, &c. and for such persons so acting as aforesaid, notwithstanding such defect of jurisdiction; and if the verdict shall be against the justices, then the plaintiff shall recover his costs, including the costs which he is liable to pay to the defendants for whom a verdict is found. Sect. 7. double costs, when. Sect. 8. By sect.7. when the verdict is against the justices, and the judge, before whom the cause is tried, certifies in open court (1), on the back of the record, that the injury was wilfully and maliciously committed, the plaintiff shall be entitled to double costs of suit. By sect. 8. the action must be brought within six calendar months after the act committed. Copy may be If the officer acting under the magistrate's warrant does given at any time before not give a copy of the warrant within the six days after it actionbrought. is demanded, which are allowed by 24 Geo. II., he subjects himself to be sued without the justice being made defendant, provided the action is brought before compliance with the demand. But he is entitled to the protection of the statute, if he gives it at any time before he is sued, although it be after the six days are expired. (2) Under 24 Geo. II. c. 44. entitled to six days' notice to pro duce their warrant. Action of trespass brought by plaintiff, against the overseers of the poor, for taking his gelding; the overseers alleged in the pleadings, that by virtue of their office, and in pursuance of a justice's order, they levied satisfaction for a poor's rate, which was the trespass complained of. It was objected on the trial, that by 24 Geo. II. c. 44. demand should have been made of the perusal and copy of the justice's warrant, and six days neglect or refusal; and the judge who tried the cause being of the same opinion, the plaintiff was nonsuited. On an application to the court of king's bench to set aside the nonsuit, it was refused. Lord Mansfield. Overseers of the poor and churchwardens are clearly within the meaning and protection of this statute. The legislature, by passing this act, intended to extend the benefit of the statute 21 Jac. I. c.12., and therefore all officers acting under a justice's warrant are included in it. (3) Also, trespass being brought for seizing and carrying And to have away a ship's anchor: it appeared at the trial that the de- the magistrate granting it, fendant, who was a churchwarden, took the anchor as a joined in the distress, for non-payment of a poor's rate, under a warrant action. of magistrates, which was produced. It was held by the court of king's bench, that 24 Geo. II. c. 44. which enacts, "that no action shall be brought against any constable, headborough, or other officer," &c. extended to the defendant, and that he could not be sued alone, but the magistrate, under whose warrant he acted, ought to be joined. For the act was made for the protection of all inferior officers, acting under the warrant of a justice of peace; the design being "that when a warrant is granted to the inferior descriptions of mankind, who cannot judge of the propriety of it, they shall not be harassed with actions for executing it, but that the magistrate who granted it shall bear the responsibility himself." (1) c. 44. extends not to action But the provisions of 24 Geo. II. c. 44. do not extend 24 Geo. II. to the action of replevin. "Where such an action was brought, therefore, against overseers to recover back a dis- of replevin, tress for a poor's rate, levied by them, under a justice's warrant, it was held to be unnecessary to demand a copy of the warrant, &c. under that statute. For the 43 Eliz., which is the foundation of the poor's rate, considers replevin as a proceeding in which the right to levy by distress, any sums claimed on account of that rate, may be properly controverted; for by sect.19. a form of avowry is given in case of a distress made: and the distress under that statute was in the nature of an execution; for the sums assessed for the relief of the poor are by the 4th section directed to be levied by distress and sale; and it would be going very far to say, that so beneficial a remedy is indirectly taken away by the general words of 24 Geo. II. when the provisions which are enacted in that statute, as to the (1) Harper v. Carr, 7 Term Rep. 270. Several cases have been decided respecting an overseer's being entitled to costs, and the method of recovering them; but they are omitted, as foreign to the scope of this treatise. |