1823.

ASTLE

v.

THOMAS.

to direct the application of this money, they are the proper persons to maintain an action to recover it from the party who withholds it from them.

BAYLEY, HOLROYD, and BEST, J's. concurred.

t

CLARK V. The INHABITANTS of The HUNDRED of BLYTHING.

The owner of THIS was an action on the case, on the statute 9Geo. 1.

stacks of corn
maliciously
set on fire,
may maintain
an action
against the
hundred, on
the 9 Geo. 1.
c. 22, although
he has pre-
viously receiv
ed the full

loss from an

insurance office.

c. 22, to recover from the hundred of Blything, the value of certain stacks of corn and hay of the plaintiff, which had been wilfully destroyed by fire, within the hundred, by some person or persons unknown. The declaration stated, that the offence was committed within one year before action commenced; that notice of the circumstance was given by plaintiff to three inhabitants of the town of amount of his H., which was near to the place where the offence was committed, within ten days after it occurred; that within four days after that notice, plaintiff gave in his examination before a magistrate of the county, in which he deposed, that the stacks had been set on fire by some person or persons unknown; and that six months and upwards had elapsed, and that the offender or offenders had not yet been apprehended or convicted. "Yet the said inhabitants of the said hundred of B. have not, although often requested, made full, or any satisfaction or amends to the said plaintiff for the damage and injury by him sustained as aforesaid, to the damage of the said plaintiff of 2007." Plea, Not Guilty, and issue thereon. At the trial before Bosanquet, Serjt. at the last Assizes for the

1823.

CLARK

v.

The

county of Suffolk, evidence was given in support of all the allegations in the declaration, but as it also appeared that the plaintiff's premises and stock, including the property in question had been insured against fire, and that he INHABITANTS had been paid the full amount of his loss by the insurance office, it was contended, on the part of the defendants, that he had no longer any right of action against them. The objection was over-ruled by the learned Serjeant, and the plaintiff had a verdict, with leave to the defendants to move to enter a nonsuit.

.

Storks, now moved accordingly, and renewed the objection. Both the language and policy of the statute upon which this action is grounded, require, that the party shall be suffering a continuing damage at the time when he seeks satisfaction from the hundred; and therefore as the plaintiff had received the full amount of his loss from the insurance office before the action was commenced, he had then ceased to sustain any damage, and it would be a violation of the statute to allow him to recover against these defendants. Section 7, of the act provides, that the inhabitants of the hundred shall make satisfaction to every person for the damage he shall have sustained by the setting fire to any stack of corn, &c. committed by any offender against that act; so that it is clear, the legislature intended to afford remuneration to the person actually injured only, and did not contemplate the introduction of any third party, who might previously have insured his property. The 3 Geo. 4. c. 33, the object of which was to regulate the mode of recovering for damage occasioned by offences against the 9 Geo. 1. c. 22, also supports this argument, for in ss. 3 & 4 of that act, the legislature evidently confine the right of recovery to the individuals whose property is destroyed. It has been decided, that both the 1 Geo. 1,

i

of the HUNDRED of BLYTHING.

1823,

CLARK

v.

The

INHABITANTS

of the HUNDRED of BLYTHING.

stat. 2. c. 5, and the 9 Geo. 1. c. 22, are remedial sta→
tutes, and intended to relieve the party damaged by the
illegal act. Ratcliffe v. Eden (a), and Hyde v. Coggan (b):
Now here, the party damaged has received satisfaction
from the insurers, and it is not competent to them to
remunerate themselves by an action against the hundred
in his name.
It must be admitted, that in Marshall on
Insurance (c), a MS. case is mentioned under the name of
Mason v. Sainsbury, which militates against the present
argument. That was an action upon the Riot Act; the
plaintiff ha received the amount of his loss from an
insurance office, and this Court certainly held that the
insurers might recover from the hundred in his name,
though not in their own. That, however, is a solitary
case, and does not appear to have received a very solenin
decision, and therefore upon a question so comparatively
unsettled, and of such vast public importance, the Court
will at least think further consideration desirable.

ABBOTT, C. J.-The question upon which the present application depends, was decided in this Court many years ago in the case of Mason v. Sainsbury, and unless there is great doubt as to the propriety of that decision, it would not become us now to disturb it. I cannot say that I entertain any doubt as to its propriety. The inten tion of the legislature in passing this and the other sta tutes of the same nature was twofold; to render the inhabitants of hundreds vigilant for their own sake as well as that of the public, by making them interested in the prevention of offences; and where that is impossible, in the apprehension and conviction of offenders. This particular statute contains provisions which are applicable to both those objects, for section 7 renders the hundred liable to make satisfaction for the injury sustained, and (a) Cowp. 485. (b) 2 Doug. 699. (e) Vol. ii. p. 706.

1823.

CLARK

v.

The

section 9 provides, that they shall not be so liable if the offender is apprehended and convicted within six months after the commission of the offence. With respect to the question, whether it is competent for the defendants INHABITANTS to set up in their own defence a contract made between third persons, it seems to me that the principle of the act fully justifies the decision of the former case, and that we should be acting in violation of that principle if we were to disturb the present verdict.

BAYLEY, J.-I am of the same opinion. The principle is not new, or peculiar to this subject. It has been held, in the case of damage done to a ship, that the owner may recover from the underwriters for his own benefit first, and may afterwards sue the author of the damage in his own name for the benefit of the underwriters.

HOLROYD and BEST, J.'s concurred,

of the HUNDRED of BLYTHING.

Rule refused.

The KING . The Rev. A. COLLETT, Clerk.

THIS was an appeal against an order of two Justices, Quære, Whe

ther able-bo

thrown out of

for the allowance of the accounts of the overseers of the died persons, poor of the parish of Kelsale, in the county of Suffolk; which order the Sessions confirmed, subject to the opinion

of this Court, upon the following case :

their ordinary employment,

and in consequence thereof unable to

The appellant, Mr. Collett, is the proprietor of a con- maintain them

selves and fa

milies, are entitled to parochial relief in money as impotent poor, within the meaning of 43 Eliz. c. 2. s. 1.?

'It is the bounden duty of overseers to endeavour to find employment, either in or out of their own parish, for able-bodied poor persons thrown out of their usual work; and it seems that it is only in the event of such employment not being to be found, that they are authorised in giving pecuniary relief.'

1823.

The KING

v.

COLLETT.

siderable estate in the parish of Kelsale, a part of which is in his own occupation. In consequence of the extreme depression in the price of agricultural produce for the last two or three years, the farmers have been rendered, unable to make any improvements on their lands, and consequently have employed very few laborers, by which means a considerable part of the laboring population has been totally unemployed, and during this period, all poor persons belonging to the parish, who have been unable to obtain employmeut, have received sums of money for their maintenance from the parish officers in proportion to the number of their respective families, for which no labor has been required from them. The appellant being dissatisfied with this application of the parish funds, appealed against the overseers' accounts. The respondents, upon the hearing of this appeal, admitted that the persons to whom the sums objected to in the account were paid, were in fact both able and willing to work, but that no employment could be obtained for them, which the appellant contended, the overseers were bound to provide, pursuant to the statute 43 Eliz. c. 2, although no evidence was adduced to prove that the overseers could have employed the laborers. It also appeared, that none of the sums objected to were paid under, or in consequence of, any orders from a magistrate. The parishioners were accustomed to meet once a week at the parish workhouse, at which meetings all applications for relief were received, and where all laborers belonging to the parish, who had not in the preceding week been in constant employment, attended to give an account of their earnings, and received such sums as, with the earnings, should amount to a sum deemed competent to their maintenance, in proportion to the number of their children. In several cases, it appeared that able-bodied men with four or five children, having had no employment in the preceding week, received