distress cannot be found within the jurisdiction of the Justice who granted the warrant, it may, on being backed by a Justice of another county, be executed therein. Also by 28 G. 3. c. 49. s. 4. Justices for counties at large may act as such within any city being a county of itself situate therein or adjoining to such county, provided they are Justices for such city. By 17 G. 2. c. 38. s. 8. to prevent all vexatious actions against overseers of the poor, it is enacted, that where any distress shall be made for any sum of money justly due for the relief of the poor, the distress itself shall not be deemed to be unlawful, nor the party making it be deemed a trespasser, on account of any defect, or want of form in the warrant for the appointment of such overseers, or in the rate or assessment, or in the warrant of distress thereupon; nor shall the party distraining be deemed a trespasser ab initio, on account of any irregularity, which shall be afterwards done by the party distraining; but the party aggrieved by such irregularity, shall or may recover full satisfaction for the special damage sustained thereby, and no more, in an action of trespass, or on the case, at the election of the plaintiff or plaintiffs. Note. A warrant may be made to distrain before the time for which the rate is made is expired (a). The practice in those cases has been to grant a conditional warrant to distrain; and by Holt, C. J. communis error facit jus (b). A constable may levy a poor's-rate on goods in another parish; for though he cannot execute out of his own district a warrant directed generally to all constables, yet he may execute any where within the limits of the Justice's jurisdiction, a warrant directed particularly to him (c). A distress for a poor's-rate for lands not in the occupation of the plaintiff may be replevied, notwithstanding the Sessions on appeal had confirmed the rate: the determining that a man may be assessed for what he does not occupy being an excess of jurisdiction (d). The granting of a warrant of distress by magistrates to enforce payment of a poor's-rate, is a judicial, not a ministerial act (e). Before a distress for the rate be levied, a summons should go to the party, that he may have an opportunity to shew that he has paid for it, or otherwise to exonerate himself: for a poor's-rate cannot be distrained for before it be demanded, and the payment thereof refused (ƒ), If a landlord tender the poor's-rate for his tenant, the overseers must receive it, and a warrant ought not to be granted to distrain upon the tenant (g). (a) Bull. N. P. 82. (b) I Const's Bott. 242. Pl. 230. (c) Hampton v. Lammas. 1 Ld. Raym, 735. (d) Milward v. Caffin. 2 Bl. R. 1330, (e) Harper v. Carr. 7 T. R. 270. (f) 1 Const's Bott. 242. Pl. 230. (g) Ibid. 212. Pl, 239. Rex v. Cozens. Doug. 426. If a landlord direct a tenant, who is overseer of the poor, to pay on the landlord's account, rates irregularly assessed on him, and promises that the levies shall eat out the rents, the tenant may set them off, or prove them as payment in an action for use and occupation (a). If personal property be rateable, it is not to be done at random, and to leave the party rated to get off as he can; but the officer making the rate must be able to support what he has done by evidence (b). Where a person is overcharged in a poors-rate, the Sessions may relieve him on appeal, and amend the rate, by lessening the sum assessed on him, under the 17 G. 2. c. 38. (c). The stat. 21 7. 1. c. 12. enacts, That Justices of the peace, mayors, bailiffs, churchwardens, and overseers of the poor, constables, and other peace officers, may plead the general issue, and give the special matter in evidence. It also enacts, That any action brought against them shall be laid in the proper county; and if upon the general issue pleaded the fact shall appear to be done in another county, the jury `shall find the defendant not guilty. By stat. 7 7. 1. c. 5. If case, trespass, battery or false imprisonment shall be brought against any Justice of the peace, mayor, bailiff, constable, &c. concerning any thing by them done by virtue of their office, they may plead the general issue, &c. and if the verdict shall pass with the defendant, or the plaintiff shall be nonsuited, or suffer any discontinuance thereof, the defendant shall have his double costs allowed by the Judge before whom the matter is tried. This act has been construed to extend to under-sheriffs and deputyconstables, though they are not particularly mentioned (d). Note. The 21 f. 1. c. 12. extends this Act to churchwardens and overseers of the poor (d). The officers must get a certificate from the Judge, that the action was brought against him for something done in the execution of his office, in order to entitle himself to double costs (d). Likewise the stat. 24 G. 2. c. 44. enacts, That no writ shall be sued out against a Justice for what he shall do in the execution of his office, till notice in writing of such intended writ shall have been delivered to him, or left at the usual place of his abode a month before, and the Justice may tender amends, and in case the same is not accepted, plead such tender in bar to the action, together with the plea of not guilty, and any other plea with leave of the Court; and if upon issue joined thereon the jury shall find the amends so tendered to have been sufficient, then they shall give a verdict for the defendant. It likewise enacts, That no action shall be brought against any constable or other officer, or any other person acting by his order, for any thing done (4) Roper v. Bumford. 3 Taunt. 76. (6) Rex v. White. 4. T. R. 777. (c) Rex v. Cheshunt. 2 T. R. 623- P in obedience to a Justice's warrant, until demand be made of the perusal and copy of such warrant, and the same has been refused for the space of six days; and in case the warrant be shewed and a copy taken, and afterwards an action be brought against the constable, without making the Justice who signed or sealed the warrant a defendant, the jury shall, on producing the warrant, find a verdict for the defendant, notwithstanding any defect of jurisdiction in the Justice; and if such action be brought jointly against the Justice and him, upon producing the warrant, the jury shall find for him; and if they find against the Justice, the plaintiff shall recover the costs he is to pay to such defendant against the Justice, with a proviso, that if the Judge certify that the injury was wilfully and maliciously committed, the plaintiff shall be intitled to double costs: and a proviso likewise, that such action shall be commenced within six calendar months after the act committed. The above Act extends only to actions of tort. The officer must prove that he acted in obedience to the warrant; and where the Justice cannot be liable, the officer is not within the protection of the Act (a). If a man be imprisoned on a Justice's warrant on the first day of January, and kept in prison till the first day of February, he will be in time if he bring his action within six months after the first of February; for the whole imprisonment is one entire trespass. The Justice having pleaded tender of amends, the plaintiff obtained a rule for the defendant to bring the money into Court for the plaintiff to take the same, upon discontinuing his action (b). An overseer of the poor, who distrains for a poors-rate under a Justice's warrant, is an officer within the protection of the Act (c). But a churchwarden taking a distress for a poor-rate under a warrant of magistrates, is entitled to the protection of 42 G. 2. c. 44. in having the magistrates made defendants with him in an action of trespass (d). Upon a distress for a poor-rate being replevied, the Justice who granted the warrant needs not be joined, according to the directions of the 24 G. 2. c. 44.; for replevin is an action in rem, to which the statute has never been held to extend: and so (it was said) with respect to an action of trespass, if an excess of jurisdiction has been, and the assessment was coram non judice; for such is not like the case where the Justice had a general jurisdiction, and whose warrant the officer is implicitly bound to obey (e). Overseers cannot be guilty of trespass in levying a poor-rate by distress, although the rate is objectionable, if the party have not ap (a) Money v. Leach. 3 Burr. 1766. (6) Bull. N. P. 24. (c) Jackson's Case. Lofft. 149. (d) Milward v. Caffin. 2 Bl. R. 1330-1. (e) Harper v. Carr. 7 T. R. 270. pealed to the Sessions: neither does any defect in the rate unappealed from, avoid the warrant (a). No action of debt will lie for a poor-rate (b). Whether the representative of a party assessed to the poor-rate be liable to distress for the rate, seems doubtful. It seems clear, however, that the representative is intitled to notice, before his testator's or intestate's goods are distrained: in order that he may have the same opportunity of exempting them from the distress, as his testator or intestate would have had (b). As to what is distrainable for a poor-rate, the principle of a distress being a pledge, does not in this case obtain as it does in respect of rents and amerciaments. In this instance the duty is personal, and the thing distrained is in satisfaction of the non-performance of it, and not as in the old common law distresses, in the nature of a nomine pœnæ, to compel payment (c). The solid distinction is, that the seizing under the 43 Eliz. and such like Acts of Parliament, is but partly analogous to the common law distress (as being replevisable, &c.); but is much more analogous to the common law execution; like a fieri facias, where the surplus, after sale, shall be returned (c). Therefore money, it seems, may be distrained for a poor-rate. So the tools of a man's trade, his wearing apparel, and all other articles necessary to enable him to earn the money for which the goods are taken (d). So, beasts of the plough are distrainable for the poor-rate, even although there were other distrainable goods on the premises; on the principle of analogy to an execution (c). The Appeal. With respect to the particular grounds and the course of appeal, the reader is referred to stats. 5 G. 2. c. 19. 17 G. 2. c. 38. & 41 G. 3. c. 23. and to the cases thereon in Const's Bott's Poor Laws. (a) I Const's Bott. 256. Pl. 242. (b) Stevens v. Evans. 2 Burr. 1152-7. S.C. I B!. R. 284. Co. Lit. 53. (c) Hutchins v. Chambers. 1 Burr. 579-88. (d) 1 Const's Bott. 242. Pl. 230. P. 229. CHAPTER IX. Of the general Incidents to Leases (continued.) SECTION III. Of Emblements. SECTION I. Of Waste; wherein of Fixtures. WASTE, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail (a). Waste, is either voluntary, which is a crime of commission, as by pulling down a house; or it is permissive, which is a matter of omission only, as by suffering it to fall for want of necessary reparations; both of which are equally injurious to him that hath the inheritance (b). Voluntary waste chiefly consists in 1st. felling timber-trees; 2dly, pulling down houses; 3dly, opening mines, or pits; 4thly, changing the course of husbandry; 5thly, destroying heir-looms (c). Whatever does a lasting damage to the freehold or inheritance is waste; therefore, removing wainscot, floors, or other things once fixed to the freehold of a house, is waste. With respect however to what shall be deemed fixtures of such a nature, or under such circumstances as that they can or cannot be removed by an out-going tenant, or taken by his executor, or by the heir, the law is much less strict at this day, than it used to be. The old and general rule of law was, that whatever was fixed to the freehold became part of it, and could not be taken away. But of late years there have been excep. tions to this rule (d). The first is between landlord and tenant, the latter of whom may now take away during the term all chimney-pieces, and even wainscot put up by himself; so of beds fastened to the ceiling with ropes; nay even though nailed; and all such things necessary for trade, as brewing utensils, furnaces, coppers, fire-engines, cyder-mills, &c. as he has himself put up or erected (e). But such removal must be within in the term, otherwise he will be deemed a trespasser. Thus, where tenant for years made an underlease of a house to 7. S. who was by trade a soap boiler: 7. S. for the convenience of his trade, puts up vats, coppers, tables and partitions, and paved the back-side, &c. and now upon a fieri facias against 7. S. which issued on a judgment in debt, the Sheriff took up all these things, and left the house stripped and in a ruinous condition, so that the first lessee was liable to make it good, and therefore brought a special action on the case against the Sheriff and those that bought the goods, for the damage done to the house. Et per Holt, C. J. it was held; 1st, that during the term, the soap-boiler might well remove the vats he set up in relation to trade, and that he might do it by the common law, (and not by virtue of any special custom) in favour of trade and to encourage industry: but after the term, they became a gift in law to him in reversion, and are not removable; 2dly, that there was a difference between what the soap-boiler did to carry on his trade, and what he did to complete the house, as hearths and chimney-pieces, which he held not removable; [the latter however, at least, are now (a) Co. Lit. 53. (b) Wood's Inst. 521. (e) Cruise's Dig. tit. 3 S. 14. (d) Lawton v. Lawton. 3 Atk. 13. |