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Protection of Parish Officers in the Discharge of their

Duty.

Protection of parish officers.

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. 43 Eliz. c. 2. s.19. enables him to plead the general issue, s.19. Plead the where an action is brought for any thing done under the general issue, and have treble authority of that act; and if a verdict is found for him, or damages.

the plaintiff is nonsuited, he shall recover treble damages, together with his costs. (1)

7 Jac. I. c. 5.

7 Jac. I. c.5. and 21 Jac. I. c. 12. enables them to plead 21 Jac. I. c. 12. the general issue, in actions brought for any thing done, May plead ge touching or concerning their office, or by virtue thereof.

7 Jac. I. c. 5. 7 Jac. I. c.5. gives them double costs where they obtain Entitled to double costs.

a verdict, or the plaintiff is nonsuit, or discontinues; and 21 Jac. I. c. 12. by 21 Jac. I. c. 12. unless the plaintiff proves the cause of

Plaintiff must action to have originated within the county in which the bring his action action is brought, he shall be nonsuited. where the cause of it originated. 17 Geo. II. c. 38. s. 8. protects them against vexatious 17Geo.II.c.38.

actions, where they have distrained for non-payment of S. 8. Protects them in case of poor's rates, by enacting, that when the sum the distress is informal dis

made for, is justly due, it shall not be deemed unlawful,

tresses.

(1) That as to his single costs, Butterton v. Furber, i 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.

By sect. 8. no plaintiff shall recover for such complaint, Sect.8.enables if tender of amends hath been made by the parties dis them to tender training, before action brought.

.

By 24 Geo. II. c. 44. s. 6. no action shall be brought 24 Geo.II. c.4. against any constable, headborough, or other officer, for copy of war.

rant to be deany thing done in obedience to a justice's warrant, “ until manded. 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."

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By sect. 6. in case after such demand and compliance Sect. 6; when therewith by shewing the said warrant to, and permitting tice to bemade 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 warranty 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.

II

VOL. II.

Sect. 7, double costs, when.

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.

Sect. 8.

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

Action of trespass brought by plaintiff, against the over24 Geo.II.

seers of the poor, for taking his gelding; the overseers c.44. entitled to six days' alleged in the pleadings, that by virtue of their office, and notice to pro- in pursuance of a justice's order, they levied satisfaction duce their warrant.

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)

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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

action. distress, for non-payment of a poor's rate, under a warrant 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 pro. priety 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)

But the provisions of 24 Geo. II. c. 44. do not extend 24 Geo. II. to the action of replevin. 66 Where such an action was

c. 44. extends

not to action 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.

form of plea, &c. are not adapted to the proceedings in replevin ; and though it was truly said that prior to 27 Geo. II. c. 20. a demand of the copy of the warrant might have been made, and notice given with effect to the magistrate before the distress was sold, the time for such sale being then indefinite : yet it is not to be intended that the legislature would have passed that act in a way to defeat the remedy by replevin, had it been supposed that the 24 Geo. II. extended to it. In truth the stat. 27 Geo. II. leaves the question upon the construction of the 24 Geo. II. as applied to a poor's rate, where it was before: for antecedently to 27 Geo. II. a distress taken for the poor's rate under 43 Eliz. c. 2. s.13. might have been sold immediately; and a replevin in such case, in order to serve the party, must have been sued out as soon as possible after the distress made, without waiting for a copy of the warranty of the giving notice to the magistrate: and from the incongruity between the steps required and provisions directed by 24 Geo. II. and the proceedings in replevin, in addition to the reasons before given, we think it was not intended by the legislature that the provision of 24 Geo. II. c. 44. should extend to this action of replevin.” (1)

(1) Fletcher v. Wilkins, 6 East's Rep. 283. Milward v. Coffin, 2 Black. 1330. Pearson v. Roberts, Willes's Rep. 661. See also Wilson s. Weller et alt. i Brod. & Bing. 57. Whether goods taken under a warrant of distress, where a magistrate has jurisdiction are irreplevisable.

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