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PART IV.

CLASS XX.

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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 Execu

tion of their Office. 7 James I. c.5. 6

FOR ease in pleading against many causeless and contentious suits The Plea of an which have been and daily are commenced and prosecuted against Officer im- justices of peace, mayors, or bailiffs of cities and towns corporate, pleaded for the

headboroughs, port-reves, constables, tithingmen, collectors of subé Execution of

sidies and fifteens, who for due execution of their office have been bis Office,

troubled and molested, and still are like to be troubled and molested by evil disposed contentious persons, to their great charge and discou

ragement 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 Parliainent assembled, and by the authority of the same, That if any action, bill, plaint, or suit, upon the case, (i) 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 law. ful to and for every such justice of peace, mayor, bailiff, constable, or 'other officer or officers before nadied, 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 niatter 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 custs, (2) which he (1) This Act, and 21 Jac. c. 12, sec. 3, only See Rex v. Poland, 1 Str. 49; Devevish v. extend to actions of tort, not to assumpsit, Mertius, 2 Str. 974. brought against an overseer for maintenance Parish officers, or persons acting on their of a pauper; Atkins v. Banwell, 3 East. 92. behalf, are not entitled, under statutes 1 Jac.

(2) To entitle a defendant to doulile costs I. c. 5, and 21 Jac. I. c. 12, to double costs under this Act there must be a certificate from upon judgment, as in case of a nonsuit in an the judge; Grindley v. Holloway, Doug. 307. action brought against them for the price of It may be granted either at the trial or after; goods sold and delivered to them for the use of Harper v. Carr, 7'T. R. 4 18: but such certifi- ihe poor; Blanchard v. Bramble, 3 M. & S. cate is not necessary if the fact appear on a 131.

scial verdict. Rabo v. Pickins, Doug. 309, n. It may be convenient to take this opportu.

or they shall have sustained by reason of their wrongful vexation in de- No. I. fence of the said action or suit ; for which the said 'defendant or de- 7 James 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 conti

Continuance of nue for seven years, and from thence to the end of the next Parliament this Act. after the said seven years.

c. 12.

[ 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, Mayor3, Constables, and certain other his Majesty's Officers, for the law. ful Execution of their Office, made in the Seventh

Year of his Majesty's most happy Reign. (1) WHEREAS, an Act, intituled, An Act

for Ease in Pleading against 21 James I. 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

made perpe' after the said seven years, which by experience hath since been found

tual. . 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.

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 church wardens, and all overseers of the poor, and all others which scers comprein their aid and assistance, or by their commandment, shall do any

hended within 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.

• 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 trouble

somne persons in countries far remote from their places of habita• tions :

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

the fact was 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 costs are 20s. double costs are 30s. and treble mean common costs with the addition of one half; treble costs, common costs with the ad- (1) See notes to the last number. dition of three-fourths :- Therefore, if single

costs 358.

No. II. to and for all and every person and persons aforesaid, to plead thereunto 21 James 1. the general issue, that he or they are not guilty, and to give such spec. 12.

cial matter in evidence to the jury which shall try the same, as in or by ihe 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 plaintiifs therein, touching the tres

pass, battery, imprisonment, or other cause for which the same acThe defendant tion, bill, plaint, or suit, is or shall be brought: And if the verdict shall have dou- shall pass with the defendant or defendants in any such action, bill, ble costs. 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.

c. 44.

[ No. III.] 24 George II. c. 44.–An Act for the ren

dering Justices of the Peace more safe in the Execution of their Office; and for indemnifying Constables

and others acting in obedience to their Warrants. 24 George II.

:WHEREAS justices of the peace are discouraged in the execution

of their office by vexatious actions brought against them for or No writ to be • by reason of small and involuntary errors in their proceedings : And sued against whereas it is necessary that they should be (as far as is consistent with any justice for ‘justice, and the safety and liberty of the subjects over whom their what he shall

authority extends) rendered safe in the execution of the said office do in the exe

' and trust : And whereas it is also necessary that the subject should be cution of his office, till no

• protected from all wilful and oppressive abuse of the several laws and tice given him;

• statutes committed to the care aud execution of the said justices of . 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 oat (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 exe

cution of his office, (2) until notice in writing of such intended writ (3) (1) After opposite decisions upon the sub- gistrate at the time, however mistakenly. The ject it is now settled that the Act does not very object of the legislature, in requiring the extend to actions of replevin. See Fletcher notice to be given was, to enable the magistrate v. Wilkins, 6 East. 283, where the question is to tender amends as for the wrong done, convery fully discussed.

templating him as a wrong-doer. If this had (2) In Weller v. Toke, 3 East. 364, this been an act wholly alien to his jurisdiction, I was ruled to extend to an action against a jus- should have said that he acted without the protice of peace, for a commitment without the tection of the law." concurrence of another justice, in a

(3) The notice must specify the particular where such concurrence was necessary. And writ intended to be sued out; Lovelace v. Curby Lord Ellenborough,—“ It is not denied that ry, 7 T. R. 631. the defendant had authority to act as a magis- in Daniel v. Wilson, 5 T. R. 1, (which detrate upon the subject matter of the complaint pended upon stat. 23 George III. c. 70. 8. 30, brought before him, though he could not act post., respecting officers of excise) an action of alone. Though the act of commitment, there- assault was brought against an officer who acted fore, cannot be said to be done by virtue of his upon a sudden surprise, the plaintiff being supoffice, yet the subject-inatter was within his posed to be engaged in a smuggling transaction; jurisdiction, and he intended to act as a ma- and it was ruled that he was entitled to the be

case

or process shall have been delivered to him, or left at the usual place No. III. 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

C. 44. (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 bave 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 «alendar 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 Justice may. case such justice shall neglect to tender any amends, or shall have ten- pay money indered insufficient amends, before the action brought, it shall and may

to court. 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 (1) The day of service is included in the was clearly intended to protect such officers, as time. Notice given on the 28th of April of an acting in the bona fide discharge of their duty action commenced on the 28th of May is sufwere inadvertently guilty of excesses beyond ficient; Castle v. Burditt, 3 T. R. 623. the strict line of their duty, and though the de- (2) Notice of an action on the case for fendant's conduct was perhaps too hasty, yet false imprisonment is not sufficient when the it manifestly appears that he acted in the sup- action is brought in trespass, per Yates J.; posed execution of his office, however illegally; Strickland v. Ward, 7 T. R. 631. and that is sufficient to bring the case within (3) In the notice required to be given to mathe protection of the statute. The lord of a gistrates within 24 Geo. II. c. 44. of actions inmanor, who is also a justice of peace, is enti- tended to be brought against them, it is not tled to notice in an action for taking away a necessary to name all the parties meant to be gun from an unqualified person, as it will be included in the action, or to express whether presumed that he acted as a justice ; Biggs v. the action is intended to be joint or several ; Evelyn, 2 H. B. 114. And in Greenaway v. Bax v. Jones, 5 Price, 168. Hurd, 4 T. R. 555, Lord Kenyon said,—" It (4) Given under my hand at Durham, is not has been frequently observed by the courts, a sufficient notice of a residence at Durham. that the notice directed to be given to justices The statute has presented a form which must and other officers, is of no use to them when be implicitly followed, and it admits of no they have acted within the strict line of their equivalent; Taylor v. Fenwick, cited 7 T. R. duty, and was only required for the purpose 635; 3 B. & P. 553, n. An Indorsement, of protecting them when they intended to act J. S. of Birmingham," is suliicient; Osborn within it, but by mistake exceeded it." v. Gough, 3 B. & P. 551.

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