CHAPTER THE FOURTH. PROCEEDINGS FOR AND AGAINST OVERSEERS. I. Protection in their office. I. Protection in their office. feers, &c. for 66 not 306. BY 43. Eliz. c. 2. f. 19. "If any action of trefpafs, If any action "or other fuit, fhall happen to be attempted, and shall be brought brought against any perfon or perfons, for taking of against over"any diftrefs, making of any fale, or any other thing done any thing done "by authority of this prefent act, the defendant and de- under 43. Eliz. "fendants in any such action or fuit shall and may either c. 2. they may "plead not guilty, or otherwife make avowry, cognizance, plead either "or juftification for the taking of the faid diftreffes, guilty," or fpe"making of fale, or other thing done by virtue of this cially that the "act, alledging in fuch avowry, cognizance, or juftifi- thing was done "cation, That the faid diftrefs, fale, trefpafs, or other by authority of thing, whereof the plaintiff or plaintiffs complained, "was done by authority of this act, and according to "the tenor, purport, and effect of this act, without any expreffing or rehearsal of any other matter or circum"ftance contained in this prefent act.” 66 the act. 307. "To which avowry, cognizance, or juftification, the To which the "plaintiff fhall be admitted to reply, That the defendant plaintiffs may "did take the faid diftrefs, made the faid fale, or did any reply, de injuric "other act of trefpafs fuppofed in his declaration, of his fua propria, &c. "own wrong, without any fuch cause alledged by the said "defendant.' 308. "Whereupon the iffue in every fuch action shall be The iffue hall 'joined to be tried by verdict of twelve men, and not be heard by "otherwife, as is accustomed in other perfonal actions: jury, &c. "and upon the trial of that iffue, the whole matter to be 67 given on both parties in evidence according to the very "truth of the fame," 309." And after fuch iffue tried for the defendant, or Treble damages "nonfuit of the plaintiff after appearance, the fame de- for the defen"fendant, to recover treble damages, by reafon of his dant, and his "wrongful vexation in that behalf, with his cofts alfo 66 • in cofts. An overfeer of the poor, on an action brought against him,may plead the general iffue, and matter in evi dence. * Lev. 251, "In that part fuftained, and that to be affeffed by the "fame jury, or writ to inquire of the damages, as the fame fhall require. 46 310. By 7. Fac. 1. c. 5. and 21. fac. 1. c. 12. it is enacted, "That if any action, bill, plaint, or fuit, upon the cafe, trefpafs, battery, or falfe imprisonment, fhall "be brought againft any juftice of peace, mayor, or bai"liff of city or town corporate, headborough, conftable, give the fpecial"&c. churchwardens, or perfons called fworn men executing the office of churchwarden, or any overfeers of "the poor, or others, which in their aid and affiftance, or by their commandment, fhall do any thing touching "or concerning his or their office or offices, it fhall be "lawful to and for every fuch perfon or perfons to plead "the general iffue, that he or they are NOT GUILTY, and "to give fuch fpecial matter in evidence to the jury "which fhall try the fame, which fpecial matter being "pleaded had been a good and fufficient matter in law "to have difcharged the faid defendant or defendants of "the trefpafs or other matter laid to his or their charge." Overfeer of the poor, on a ver dict in his fa vour, or if the plaintiff be nonfuit or dif 66 311. And by 7. Jac. 1. c. 5. it is further enacted, “That if the verdict thall pafs with the faid defendant or de"fendants in any fuch action, or the plaintiff or plaintiffs themfelves become nonfuit, or fuffer any difcon"tinuance thereof, the juftice or juftices, or fuch other continue, fhall judge before whom the faid matter fhall be tried, shall by force and virtue of this act allow unto the defendant or defendants his or their double costs which he or they "fhall have fuftained by reafon of their wrongful vexa"tion in defence of the faid action or fuit; for which "the faid defendant or defendants fhall have like remedy in other cafes where cofs are given to the defen"dants." be allowed double cofls of fuit. See Heyler's cafe, Cro. Car. 175. Say. on Cofts, $20. Vaugh. 213. An action ་་ brought againft Jaid in the the fact was 66 as 312. By 21. Jac, 1. c. 12. "If any action, bill, plaint, or fuit upon the cafe, trefpafs, battery, or falfe imprifon"ment, fhall be brought against any juftice of the peace, mayor or bailiff of city or town corporate, headborough, portreeve, conftable, &c. churchwardens or overfeers of "the poor, and their deputies or any of them, or any other "which in their aid and affiftance, or by their command"ment, fhall do any thing touching or concerning his "or their office or offices, for or concerning any matter, caufe, or thing by them or any of them done by virtue * or reafon of their, or any of their office or offices, that 66 "the faid action, bill, plaint or fuit fhall be laid within "the county where the trefpafs or fact fhall be done and "committed, and not elfewhere. 2dly, And that it shall "be lawful to and for all and every perfon and perfons "aforefaid to plead thereunto the general iffue, that he "or they are not guilty, and to give fuch special matter "in evidence to the jury which fhall try the fame, as in "or by the faid former act is limited or declared. 3dly, "And that if upon the trial of any fuch action, bill, plaint or fuit, the plaintiff or plaintiffs therein fhall "not prove to the jury which fhall try the fame, that the trefpafs, battery, imprisonment, or other fact or caufe "of his, her, or their fuch action, bill, plaint or fuit was, "or were had, made, committed, or done within the "county wherein fuch action, bill, plaint, or fuit fhall "be laid, that then in every fuch cafe, the jury which "fhall try the fame, fhall find the defendant and defen"dants in every such action, bill, plaint or fuit, not "guilty, without having any regard or refpect to any "evidence given by the plaintiff or plaintiffs therein, "touching the trefpafs, battery, imprisonment, or other "caufe for which the fame action, bill, plaint or fuit, "is or fhall be brought. 4thly, And if the verdict shall "pafs with the defendant or defendants in any fuch "action, bill, plaint or fuit, or the plaintiff or plaintiffs fhall have The defendant "therein become nonfuit, or fuffer any difcontinuance double cofts, "thereof, that in every fuch cafe, the defendant or defen "dants fhall have fuch double cofts, and all other advan tages and remedies, as in and by the said former a&t is limited, directed or provided. overseers, no perfons making trefp offers on 313. By 17. Geo. 2. c. 38. f. 8. to prevent all vexa- To prevent tious actions against overfeers of the poor, it is enact- vexatious ed, "That where any diftrefs fhall be made for any actions against "fum or fums of money, juftly due for the relief of "the poor, the diftrefs itself fhall not be deemed to be a diftrefs for "unlawful, nor the party or parties making it to be nonpayment of "deemed a trefpailer or trefpaffers, on account of any a poor's rate, "defect, or want of form in the warrant for the ap- fhall be deemed pointment of fuch overfeers, or in the rate or affeif- account of any "ment, or in the warrant of diftrefs thereupon; nor fhall defect in the "the party or parties diftraining be deemed a trefpaffer warrant, &c, "or trefpaffers ab initio, on account of any irregularity "which fhall be afterwards done by the party or parties diftraining; but the party or parties aggrieved by fuch "irregularity fhall or may recover full fatisfaction for the "fpecial damage he, the, or they fhall have fuftained there 66 "by, Plaintiffs recovering to "by, and no more, in an action of trefpafs, or on the "cafe, at the election of the plaintiff or plaintiffs." 314. By 17. Geo. 2. c. 38. f. 9. «Provided always, "That where the plaintiff or plaintiffs fhall recover in have full cofts. «fuch action, he, she, or they fhall be paid his or their "full cofts of fuit, and have all the like remedies for the "fame as in the other cafes of cofts." Provifo in cafe "Provided never315. By 17. Geo. 2. c. 38. f. 10. of irregularity. "thelefs, That no plaintiff or plaintiffs shall recover in "any action for any fuch irregularity as aforefaid, if ten"der of amends hath been made by the party or parties diftraining before fuch action brought. No action to be under a juftice's warrant until demand made of the copy of refufal. fon's Cafe, 66 316. By 24. Geo. 2. c. 44. " No action shall be brought brought against against any conftable, headborough or other officer (a), feers acting or against any perfon or perfons acting by his order "and in his aid, for any thing done in obedience to any warrant under the hand or feal of any justice of the 66 peace, until demand hath been made or left at the ufual the warrant and « place of his abode by the party or parties intending to "bring fuch action, or by his, her or their attorney or (a) See Jack-❝ agent, in writing, figned by the party demanding the "fame, of the perufal and copy of fuch warrant, and the "fame hath been refufed or neglected for the space of fix "days after fuch demand; and in cafe after fuch demand "and compliance therewith, by fhewing the faid warrant "to, and permitting a copy to be taken thereof by the party demanding the fame, any action fhall be brought against fuch conftable, headborough or other officer, "or against fuch perfon or perfons acting in his aid, "for any fuch caufe as aforefaid, without making the "juftice or juftices who figned or fealed the faid war"rant defendant or defendants, that on producing and post. pl. 66 દ્ર proving fuch warrant at the trial of fuch action, the "jury fhall give their verdict for the defendant or defen"dants, notwithstanding any defect of jurifdiction in "fuch juftice or juftices; and if fuch action be brought "jointly againft fuch juftice or justices, and also agaiuft "fuch conitable, headborough or other officer, or perfon "or perfons acting in his or their aid as aforefaid, then on proof of fuch warrant the jury fhall find for fuch con"ftable, headborough or other officer, and for fuch per"fon and perfons fo acting as aforefaid, notwithstanding fuch defect of jurifdiction as aforefaid; and if the ver"dict shall be given against the juftice or juftices, that in "fuch 16 "fuch cafe the plaintiff or plaintiffs fhall recover his, her, or their cofts against him or them, to be taxed in "fuch manner by the proper officer, as to include fuch "cofts as fuch plaintiff or plaintiffs are liable to pay to “fuch defendant or defendants for whom fuch verdi& "fhall be found as aforefaid." 317. By 24. Geo. 2. c. 44. f. 7. "Provided always, Where the judge "That where the plaintiff in any fuch action against hall certify the cause of action "any juftice of the peace fhall obtain a verdict, in cafe was wilfully the judge before whom the cause fhall be tried, shall committed, "in open court certify on the back of the record, that plaintiff to re"the injury for which fuch action was brought was cover double wilfully and malicioufly committed, the plaintiff shall "be entitled to have and receive double cofts of fuit." 66 cofts. 318. By 24. Geo. 2. c. 44. f. 8. "Provided alfo, That Limitation of "no action ihall be brought against any juftice of the actions. 86 peace for any thing done in the execution of his of"fice, or against any conftable, headborough, or other "officer, or perfon acting as aforefaid, unlefs com"menced within fix calendar months after the act com"mitted." voluntary deli treble the da mages affelfed 319. Oakley v. Salter and Another, Trinity, 8. Jac. I. If trefpafs he 1. Telv. 176.-This was an action of trefpafs brought brought against against the defendants, as OVERSEERS OF THE POOR of overfeers after a Ipfwich, for taking goods by diftrefs for nonpayment of very of goods, it the poor's rate; and it was proved on the trial, that the is vexatious, and plaintiff had voluntarily delivered the goods in pay- they hall have ment of the rate: upon which a verdict was found in favour of the defendant. Upon a writ of error being by the jury, and brought, it was refolved, FIRST, That if a perfon volun- cofts at the diftarily deliver goods for which he is affeffed to the poor, cretion of the and then bring trefpals for them against the overleers, Court. that they are within the protection of the 43. Eliz. c. 2. f. 19. for the words "diftrefs and fale" are put in the act by way of example only; and the ftatute, tending to works of charity, fhall be largely expounded.-SECONDLY, That an action brought under fuch circumstances is the vexation which the legiflature intended to prevent; and therefore the defendant is entitled to treble damages.-THIRDLY, That the damages in this action by reafon of the vexation fhall be affeffed by the jury, and trebled by the Court, and that the Court upon that may give cofts de incremento; for no evidence refpecting costs can properly be given to a jury, inafmuch as they depend upon the ufage of the Court in which the action |