Page images
PDF
EPUB

PART IV.

CLASS XX.

VOL. IV.

N

1

PART IV.

CLASS XX.

7 James I. c. 5. <

The Plea of an
Officer im-

pleaded for the
Execution of

his Office.

[ocr errors]
[ocr errors]

6

Actions against Justices of Peace and other Officers.

[ No. I.] 7 James I. c. 5.-An Act for Ease in pleading troublesome and contentious Suits prosecuted against Justices of the Peace, Mayors, Constables, and certain other his Majesty's Officers, for the lawful Execution of their Office.

FOR

OR ease in pleading against many causeless and contentious suits which have been and daily are commenced and prosecuted against justices of peace, mayors, or bailiffs of cities and towns corporate, headboroughs, port-reves, constables, tithingmen, collectors of subsidies and fifteens, who for due execution of their office have been troubled and molested, and still are like to be troubled and molested by evil disposed contentious persons, to their great charge and discouragement in doing of their offices; Be it therefore enacted by our Sovereign Lord the King, and by the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That if any action, bill, plaint, or suit, upon the case, (1) trespass, battery, or false imprisonment, shall be brought after forty days next after the end of this Session of Parliament, in any of his Majesty's courts at Westminster or elsewhere, against any justice of peace, mayor, or bailiff of city or town corporate, headborough, port-reve, constable, tithingman, collector of subsidy or fifteens, for or concerning any matter cause or thing by them or any of them done, by virtue or reason of their or any of their office or offices, That it shall be lawful to and for every such justice of peace, mayor, bailiff, constable, or other officer or officers before named, and all others which in their aid or assistance, or by their commandment shall do any thing touching or concerning his or their office or offices, to plead the general issue, that he or they are not guilty, and to give such special matter in evidence Defendant al- to the jury which shall try the same; which special matter being pleaded lowed double had been a good and sufficient matter in law to have discharged the said Costs of Suit. defendant or defendants of the trespass, or other matter laid to his or their charge: And that if the verdict shall pass with the said defendant or defendants in any such action, or the plaintiff or plaintiffs therein become nonsuit, or suffer any discontinuance thereof, That in every such case the justice or justices, or such other judge before whom the said matter shall be tried, shall by force and virtue of this Act allow unto the defendant or defendants his or the double costs, (2) which he

(1) This Act, and 21 Jac. c. 12, sec. 3, only extend to actions of tort, not to assumpsit, brought against an overseer for maintenance of a pauper; Atkins v. Banwell, 3 East. 92.

(2) To entitle a defendant to double costs under this Act there must be a certificate from the judge; Grindley v. Holloway, Doug. 307. It may be granted either at the trial or after; Harper v. Carr, 7 T. R. 418: but such certificate is not necessary if the fact appear on a special verdict. Rann v. Pickins, Doug. 309, n.

See Rex v. Poland, 1 Str. 49; Devenish v.
Mertins, 2 Str. 974.

Parish officers, or persons acting on their behalf, are not entitled, under statutes 1 Jac. I. c. 5, and 21 Jac. I. c. 12, to double costs upon judgment, as in case of a nonsuit in an action brought against them for the price of goods sold and delivered to them for the use of the poor; Blanchard v. Bramble, 3 M. & S.

131.

It may be convenient to take this opportu

No. I.

or they shall have sustained by reason of their wrongful vexation in defence of the said action or suit; for which the said defendant or de- 7James I.c.5. fendants shall have like remedy as in other cases where costs by the laws of this realm are given to the defendants. And this Act to continue for seven years, and from thence to the end of the next Parliament this Act. after the said seven years.

[ocr errors]

[No. II.] 21 James I. c. 12.-An Act to enlarge and make perpetual the Act made for Ease in pleading against troublesome and contentious Suits prosecuted against Justices of the Peace, Mayors, Constables, and certain other his Majesty's Officers, for the lawful Execution of their Ŏffice, made in the Seventh Year of his Majesty's most happy Reign. (1)

WH

Continuance of

21 James I. c. 12.

WHEREAS, an Act, intituled, An Act for Ease in Pleading against troublesome and contentious Suits prosecuted against Justices of· 'the Peace, Mayors, Constables, and certain other his Majesty's Officers, *for the lawful Execution of their Office, made in the Seventh Year of The statute of his Majesty's most happy Reign of England, was made to continue but 7 Jac. 1. c. 5, for seven years, and from thence to the end of the next Parliament, enlarged and

⚫ after the said seven years, which by experience hath since been found to be a good and profitable law;'

II. Be it therefore enacted by the King's most excellent Majesty, the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the authority of the same, That the said Act shall, from and after the end of this present session of Parliament, be perpetual, and have continuance for ever.

made perpe

tual.

III. And be it further enacted by the authority aforesaid, That all Churchwarchurchwardens, and all persons called sworn men, executing the office dens and overof churchwardens, and all overseers of the poor, and all others which seers comprehended within in their aid and assistance, or by their commandment, shall do any thing touching or concerning his or their office or offices, shall hereafter 7 Jac. 1. c. 5. be enabled to receive and have such benefit and help by virtue of the said Act, to all intents, constructions, and purposes, as if they had been specially named therein.

[ocr errors]

IV. And whereas notwithstanding the said statute, the plaintiff is at liberty to lay his action which he shall bring against any justice of peace, or other officer, in any foreign county at his choice, which ⚫ hath proved very inconvenient unto sundry of the officers and persons aforesaid, that have been impleaded by some contentious and troublesome persons in countries far remote from their places of habita⚫tions:"

the fact was

V. Be it therefore further enacted by the authority aforesaid, That if An action any action, bill, plaint, or suit upon the case, trespass, battery, or false brought against imprisonment, shall be brought after the end of this present session of an officer shall Parliament, against any justice of peace, mayor, or bailiff of city or be laid in the town corporate, headborough, port-reve, constable, tithingman, col- county where lector of subsidy or fifteens, churchwardens, and persons called sworn men, executing the office of churchwarden or overseer of the poor, and committed. their deputies, or any of them, or any other which in their aid and assistance, or by their commandment, shall do any thing touching or concerning his or their office or offices, for or concerning any matter, cause, or thing, by them or any of them done by virtue or reason of their or any of their office or offices, that the said action, bill, plaint, or suit, shall be laid within the county where the trespass or fact shall be done and committed, and not elsewhere; and that it shall be lawful

nity of observing, that double costs are held to mean common costs with the addition of one half; treble costs, common costs with the addition of three-fourths :-Therefore, if single

costs are 20s. double costs are 30s. and treble costs 35s.

(1) See notes to the last number.

No. II.

21 James I.

c. 12.

The defendant shall have dou

ble costs.

c. 44.

No writ to be sued against any justice for what he shall do in the execution of his office, till no

to and for all and every person and persons aforesaid, to plead thereunto the general issue, that he or they are not guilty, and to give such special matter in evidence to the jary which shall try the same, as in or by the said former Act is limited or declared: And that if upon the trial of any such action, bill, plaint, or suit, the plaintiff or plaintiffs therein shall not prove to the jury which shall try the same, that the trespass, battery, imprisonment, or other fact or cause of his, her, or their such action, bill, plaint, or suit, was or were had, made, committed, or done, within the county wherein such action, bill, plaint, or suit shall be laid that then, in every such case, the jury which shall try the same, shall find the defendant and defendants in every such action, bill, plaint, or suit, not guilty, without having any regard or respect to any evidence given by the plaintiff or plaintiffs therein, touching the trespass, battery, imprisonment, or other cause for which the same action, bill, plaint, or suit, is or shall be brought: And if the verdict shall pass with the defendant or defendants in any such action, bill, plaint, or suit, or the plaintiff or plaintiffs therein become nonsuit, or suffer any discontinuance thereof, that in every such case the defendant or defendants shall have such double costs, and all other advantages and remedies, as in and by the said former Act is limited, directed, or provided.

[No. III. ] 24 George II. c. 44-An Act for the rendering Justices of the Peace more safe in the Execution of their Office; and for indemnifying Constables and others acting in obedience to their Warrants.

[ocr errors]
[ocr errors]
[ocr errors]

24 George II. WHEREAS justices of the peace are discouraged in the execution of their office by vexatious actions brought against them for or by reason of small and involuntary errors in their proceedings: And 'whereas it is necessary that they should be (as far as is consistent with 'justice, and the safety and liberty of the subjects over whom their authority extends) rendered safe in the execution of the said office ' and trust: And whereas it is also necessary that the subject should be 'protected from all wilful and oppressive abuse of the several laws and 'statutes committed to the care and execution of the said justices of tice given him; the peace;' Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the twenty-fourth day of June, One thousand seven hundred and fifty-one, no writ shall be sued out (1) against, nor any copy of any process, at the suit of a subject, shall be served on any justice of the peace for any thing by him done in the execution of his office, (2) until notice in writing of such intended writ (3)

(1) After opposite decisions upon the subject it is now settled that the Act does not extend to actions of replevin. See Fletcher v. Wilkins, 6 East. 283, where the question is very fully discussed.

(2) In Weller v. Toke, 3 East. 364, this was ruled to extend to an action against a justice of peace, for a commitment without the concurrence of another justice, in a case where such concurrence was necessary. And by Lord Ellenborough,-" It is not denied that the defendant had authority to act as a magistrate upon the subject matter of the complaint brought before him, though he could not act alone. Though the act of commitment, therefore, cannot be said to be done by virtue of his office, yet the subject-matter was within his jurisdiction, and he intended to act as a ma

gistrate at the time, however mistakenly. The very object of the legislature, in requiring the notice to be given was, to enable the magistrate to tender amends as for the wrong done, con templating him as a wrong-doer. If this had been an act wholly alien to his jurisdiction, I should have said that he acted without the protection of the law."

(3) The notice must specify the particular writ intended to be sued out; Lovelace v. Curry, 7 T. R. 631.

in Daniel v. Wilson, 5 T. R. 1, (which depended upon stat. 23 George III. c. 70. s. 30, post., respecting officers of excise) an action of assault was brought against an officer who acted upon a sudden surprise, the plaintiff being supposed to be engaged in a smuggling transaction; and it was ruled that he was entitled to the be

No. III.

c. 44.

or process shall have been delivered to him, or left at the usual place of his abode, by the attorney or agent for the party who intends to sue 24 Geo. II. or cause the same to be sued out or served, at least one calendar month (1) before the suing out or serving the same; in which notice shall be clearly and explicitly contained the cause of action (2) which such party hath or claimeth to have against such justice of the peace; (3) on the back of which notice shall be indorsed the name of such attorney or agent, together with the place of his abode, (4) who shall be entitled to have the fee of twenty shillings for the preparing and serving such notice, and no more.

II. And be it further enacted, That it shall and may be lawful to and he may tender for such justice of the peace, at any time within one calendar month amends; after such notice given as aforesaid, to tender amends to the party complaining, or to his or her agent or attorney; and in case the same is not

accepted, to plead such tender in bar to any action to be brought against and plead the him, grounded on such writ or process, together with the plea of not same in bar, guilty, and any other plea, with the leave of the court; and if upon &c. issue joined thereon the jury shall find the amends so tendered to have been sufficient, then they shall give a verdict for the defendant; and in such case, or in case the plaintiff shall become nonsuit, or shall discontinue his or her action, or in case judgment shall be given for such defendant or defendants upon demurrer, such justice shall be intitled to the like costs as he would have been entitled unto in case he had pleaded the general issue only; and if upon issue so joined the jury shall find that no amends were tendered, or that the same were not sufficient, and also against the defendant or defendants on such other plea or pleas, then they shall give a verdict for the plaintiff, and such damages as they shall think proper, which he or she shall recover, together with his or her costs of suit.

III. And be it further enacted, That no such plaintiff shall recover Plaintiff not to any verdict against such justice in any case where the action shall be recover withgrounded on any act of the defendant, as justice of the peace, unless it out proof of is proved upon the trial of such action, that such notice was given as notice. aforesaid; but in default thereof such justice shall recover a verdict and costs as aforesaid.

IV. And be it further enacted by the authority aforesaid, That in case such justice shall neglect to tender any amends, or shall have tendered insufficient amends, before the action brought, it shall and may be lawful for him, by leave of the court where such action shall depend, at any time before issue joined, to pay into court such sum of money as he shall see fit; whereupon such proceedings, orders, and

nefit of the Act. And per Curiam,-"The Act was clearly intended to protect such officers, as acting in the bona fide discharge of their duty were inadvertently guilty of excesses beyond the strict line of their duty, and though the defendant's conduct was perhaps too hasty, yet it manifestly appears that he acted in the supposed execution of his office, however illegally; and that is sufficient to bring the case within the protection of the statute." The lord of a manor, who is also a justice of peace, is entitled to notice in an action for taking away a gun from an unqualified person, as it will be presumed that he acted as a justice; Biggs v. Evelyn, 2 H. B. 114. And in Greenaway v. Hurd, 4 T. R. 555, Lord Kenyon said,—" It has been frequently observed by the courts, that the notice directed to be given to justices and other officers, is of no use to them when they have acted within the strict line of their duty, and was only required for the purpose of protecting them when they intended to act within it, but by mistake exceeded it."

Justice may pay money in

to court.

(1) The day of service is included in the time. Notice given on the 28th of April of an action commenced on the 28th of May is sufficient; Castle v. Burditt, 3 T. R. 623.

(2) Notice of an action on the case for false imprisonment is not sufficient when the action is brought in trespass, per Yates J.; Strickland v. Ward, 7 T. R. 631.

(3) In the notice required to be given to magistrates within 24 Geo. II. c. 44. of actions intended to be brought against them, it is not necessary to name all the parties meant to be included in the action, or to express whether the action is intended to be joint or several; Bax v. Jones, 5 Price, 168.

(4) Given under my hand at Durham, is not a sufficient notice of a residence at Durham. The statute has presented a form which must be implicitly followed, and it admits of no equivalent; Taylor v. Fenwick, cited 7 T. R. 635; 3 B. & P. 553, n. An Indorsement, "J. S. of Birmingham," is sufficient; Osborn v. Gough, 3 B. & P. 551.

« PreviousContinue »