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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.
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)
24 Geo. II.
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 notice to pro- in pursuance of a justice's order, they levied satisfaction
c. 44. entitled to six days'
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 of replevin,
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 distress 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 warrant, or 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. 1 Brod. & Bing. 57. Whether goods taken under a warrant of distress, where a magistrate has jurisdiction are irreplevisable.
Of Appeals; from the Entry to the Judgment.
By what Statutes the Right of Appeal is given against Poor's
Rates, and Orders of Removal.
1st, On rates.
The right of appeal against poor's rates, and also against overseers' accounts, was originally given by 43 Eliz. which enacts, "that if any person or persons shall find themselves grieved with any sess, or tax, or other act, done by the said churchwardens, or other persons, or by the said justices of peace, then it shall be lawful for the justices of peace, at their general quarter sessions, or the greatest number of them, to take such order therein as to them shall be thought convenient; and the same to conclude and bind all the said parties."
1st, Appeals given against poor's rates and overseers> accounts, given by 43 Eliz. c. 2.
The 17 Geo. II. c. 38. s.14. enacts, "that in case any Altered by 17 Geo. II. person or persons shall find him, her, or themselves agC. 38. s. 14. grieved by any rate or assessment made for the relief of the poor, or shall have any material objection or objections to any person or persons being put on or left out of such rate or assessment, or to the sum charged on any person or persons therein, or shall have any material objection to such account as aforesaid, or any part thereof, or shall find
2d, Appeals against removals.
him, her, or themselves aggrieved by any neglect, act, or thing done or omitted by the churchwardens or overseers of the poor, or by any of his majesty's justices of the peace; it shall be lawful for such person or persons, in any of the cases aforesaid, giving reasonable notice to the churchwardens or overseers of the poor of the parish, township, or place, to appeal to the next general or quarter sessions of the peace for the county, riding, division, corporation, or franchise, where such parish, township, or place lies: and the justices of the peace, then assembled, are hereby authorized and required to receive such appeal, and to hear and finally determine the same, &c.
The right of appealing against an order of removal is given by 13&14 Car. II. c.12. s. 2., 3 & 4 W. & M. c.11. s.9. 10., 8&9W.III. c. 30. s. 6.
1st, Who may
Of the Grounds for appealing. What Persons may appeal; and who may join therein.
I. Against a Rate.
THE 43 Eliz. c. 2. gives the right of appeal only to perappeal against sons aggrieved by the rates: that is, to all who are rated and aggrieved, either by an over-rate of their own property and ability, or by an assessment disproportioned to that of other inhabitants and occupiers of property within the pa rish or township for which the rate is made.
But the 17 Geo. II. c. 38. allows the right of complaint to der 17 Geo. II. all" who shall have any material objection or objections to ́any person or persons being put on or left out of such rate or assessment, or to the sum charged on any person therein."
This act, therefore, extends the grounds of appeal beyond those allowed by 43 Eliz. c. 2. They are pointed