county, riding or division, in which such hundred or other like district shall be situate, commanding him to pay to the plaintiff, the sum by the said writ directed to be levied; and such treasurer is thereby required to pay the same, as also any other sum ordered to be paid by him by virtue of that act, out of any public money which shall then be in his hands, or shall come into his hands before the next general or quarter sessions of the peace for the said county, riding or division; and if there be not sufficient money for that for that purpose, before such sessions, he shall give notice thereof to the justices of the peace at such sessions, who shall proceed in the manner thereinafter mentioned."(a)

For the purpose of indemnifying the high constable and county treasurer, it is enacted, that, "if such high constable of the hundred, or other district sued, shall produce and prove before any two justices of the peace of the county, riding or division, residing in or acting for such hundred. or district, an account of the just and necessary expenses, which he shall have incurred in consequence of any such action as aforesaid, such justices shall make an order for the payment thereof, upon the treasurer of the county, riding or division, in which such hundred or district shall be situate; and if, in any such action, judgment shall be given against the plaintiff, the high constable shall, in like manner, be reimbursed for the just and necessary expenses by him incurred in consequence of such action, over and above the taxed costs to be paid by the plaintiff in such case; and if it shall be proved to any two such justices, that the plaintiff in the action is insolvent, so that the high constable can have no relief as to such taxed costs, such justices shall make an order upon the treasurer of the county, riding or division, as aforesaid, for the payment of the amount of such taxed costs: And the justices of the peace, at the next general or quarter sessions of the peace to be holden for any such county, riding or division, or any adjournment thereof, shall direct such sum or sums of money as shall have been paid, or ordered to be paid, by the treasurer, by virtue of any such warrant or order as therein before mentioned, to be raised on the hundred, or other like district, against the inhabitants of which any such action shall have been brought, over and above the general rate to be paid by such hundred or district, in common with the rest of the county, riding or division, under the acts relating to county rates; and such sum or sums shall be raised, in the manner directed by those acts, and shall be forthwith paid over to the treasurer."(6)

It being deemed expedient to provide a summary mode of proceeding, where the damage is of small amount; the costs of an action in such case *greatly exceeding, in many instances, the amount of [125] the damage; it is enacted by the statute 7 & 8 Geo. IV. c. 31,(a) that "it shall not be lawful for any person to commence any action, against the inhabitants of any hundred, or other like district, where the damage alleged to have been sustained, by reason of any of the offences in that act mentioned, shall not exceed the sum of thirty pounds: but the party damnified shall, within seven days after the commission of the offence, give a notice in writing of his claim for compensation, according to the

(a) 26.

(b) 7. And for the mode of reimbursement, in liberties, &c., not within any hundred, but contributing to the county rate, and in counties of cities, and liberties, &c., not contributing thereto, see 14, 15.

(a) 8, 9, 10, and see stat. 3 Geo. IV. c. 33.

form of the schedule thereunto annexed, to the high constable, or some one of the high constables, if there be more than one, of the hundred, or other like district, in which the offence shall have been committed; and such high constable shall, within seven days after the receipt of the notice, exhibit the same to some two justices of the peace of the county, riding or division, in which such hundred or district shall be situate, residing in or acting for such hundred or district; and they shall thereupon appoint a special petty session of all the justices of the peace of the county, riding or division, acting for such hundred or district, to be holden within not less than twenty, nor more than thirty days next after the exhibition of such notice, for the purpose of hearing and determining any claim which may be then and there brought before them, on account of any such damage; and such high constable shall, within three days after such appointment, give notice in writing to the claimant, of the day and hour, and place appointed for holding such petty session, and shall, within ten days, give the like notice to all the justices acting for such hundred or district; and the claimant is thereby required to cause a notice in writing, in the form in the schedule thereunto annexed, to be placed on the church or chapel door, or other conspicuous part of the parish, township or place, in which such damage shall have been sustained, on two Sundays preceding the day of holding such petty session.

"And it shall be lawful for the justices, not being less than two, at such petty session, or any adjournment thereof, to hear and examine upon oath or affirmation, the claimant, and any of the inhabitants of the hundred, or other like district, and their several witnesses, concerning any such offence, and the damage sustained thereby; and thereupon the said justices, or the major part of them, if they shall find that the claimant has sustained any damage, by means of any such offence, shall make an order for payment of the amount of such damage to him, together with his reasonable costs and charges, and also an order for payment of the costs and charges, if any, of the high constable, or inhabitants; and shall direct such order or orders to the treasurer of the county, riding or division, in which such hundred or district shall be situate, who shall pay the same to the party or parties therein named, and shall be reimbursed for the same, in the manner therein before directed. And if any high constable shall refuse or

neglect to exhibit or give such notice as is required in any of the [*126] cases aforesaid, it shall be lawful for the party *damnified to sue

him for the amount of the damage sustained, such amount to be recovered by an action on the case, together with full costs of suit." Where any of the offences, for which compensation is granted by virtue of that act, are committed in the county of a city or town, or in any such liberty, franchise, city, town or place, as either does not contribute at all to the payment of any county rate, or contributes thereto, but not as being part of any hundred, or other like district; it is enacted that "the inhab itants thereof shall be liable to yield compensation, in the same manner, and under the same conditions and restrictions in all respects, as the inhabitants of the hundred; and every thing in that act in any wise relating to a hundred, or to the inhabitants thereof, shall equally apply to every county of a city or town, and to every such liberty, franchise, city, town and place, and to the inhabitants thereof; and where the justices of the peace of the county, riding or division, are excluded from holding jurisdiction in any such liberty, franchise, city, town or place, in every

such case, all the powers, authorities and duties by that act to or imposed on such justices, shall be exercised and performed by the justices of the peace of the liberty, franchise city, town or place, in which such offence shall be committed; and where the offence shall be committed in a county of a city or town, all the like powers, authorities and duties, shall be exercised and performed by the justices of the peace of such county of a city or town; And in every action to be brought, or summary claim to be preferred, under that act, against the inhabitants of a county of a city or town, or of any such liberty, franchise, city, town or place, the process for appearance in the action, and the notice required in the case of the claim, shall be served upon some one peace officer of such county, liberty, franchise, city, town or place: And all matters which by that act the high constable of a hundred is authorised or required to do, in either of such cases, shall be done by the peace officer so served, who shall have the same powers, rights and remedies, as such high constable has, by virtue of that act, and shall be subject to the same liabilities; and shall, notwithstanding the expiration of his office, continue to act, for all the purposes of that act, until the termination of all proceedings in, and consequent upon such action or claim; but if he shall die before such termination, his successor shall act in his stead."(a)

In following up a writ of execution to its consummation, under the statute of hue and cry, 8 Geo. II. c. 16, which the subsequent statute of 19 Geo. II. c. 34, § 6, refers to, and adopts as the mode of proceeding in case of a penalty recovered by the executor of a revenue officer killed in pursuit of smugglers, against the inhabitants of the hundred, (or of a Lathe, in Kent,) and which latter statute is not repealed by 7 & 8 Geo. IV. c. 27, it is sufficient for the sheriff, to whom the writ had been delivered, to return, even after the expiration of sixty days given him by the act to return the writ, that he had delivered it to the [ *127] justices of the peace of the hundred, &c. who are charged with the duty of directing the levy on the inhabitants, and that they had done nothing upon it; and the court of King's Bench will not thereupon attach the sheriff, for not returning the writ, but the next proceeding is against the magistrates, to oblige them to do their duty.(aa)

*CHAPTER VII.

[ *128 ]

Of the CAPIAS by ORIGINAL, and PROCESS of OUTLAWRY, in the KING's BENCH, and COMMON PLEAS.

Ar common law, the defendant was not liable to be arrested, upon mesne process, for civil injuries unacompanied with force. (a) This immunity of the defendant's person, in case of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrongdoers, a capias was allowed to arrest the person, in actions of account, though no breach of the peace were suggested, by the statutes of Marlbridge, (52 Hen. III.) c. 23, (a) § 12.

(aa) 13 East, 544.

(a) 3 Co. 12.

form of the schedule thereunto annexed, to the high constable, or some one of the high constables, if there be more than one, of the hundred, or other like district, in which the offence shall have been committed; and such high constable shall, within seven days after the receipt of the notice, exhibit the same to some two justices of the peace of the county, riding or division, in which such hundred or district shall be situate, residing in or acting for such hundred or district; and they shall thereupon appoint a special petty session of all the justices of the peace of the county, riding or division, acting for such hundred or district, to be holden within not less than twenty, nor more than thirty days next after the exhibition of such notice, for the purpose of hearing and determining any claim which may be then and there brought before them, on account of any such damage; and such high constable shall, within three days after such appointment, give notice in writing to the claimant, of the day and hour, and place appointed for holding such petty session, and shall, within ten days, give the like notice to all the justices acting for such hundred or district; and the claimant is thereby required to cause a notice in writing, in the form in the schedule thereunto annexed, to be placed on the church or chapel door, or other conspicuous part of the parish, township or place, in which such damage shall have been sustained, on two Sundays preceding the day of holding such petty session.

"And it shall be lawful for the justices, not being less than two, at such petty session, or any adjournment thereof, to hear and examine upon oath or affirmation, the claimant, and any of the inhabitants of the hundred, or other like district, and their several witnesses, concerning any such offence, and the damage sustained thereby; and thereupon the said justices, or the major part of them, if they shall find that the claimant has sustained any damage, by means of any such offence, shall make an order for payment of the amount of such damage to him, together with his reasonable costs and charges, and also an order for payment of the costs and charges, if any, of the high constable, or inhabitants; and shall direct such order or orders to the treasurer of the county, riding or division, in which such hundred or district shall be situate, who shall pay the same to the party or parties therein named, and shall be reimbursed for the same, in the manner therein before directed. And if any high constable shall refuse or

neglect to exhibit or give such notice as is required in any of the [*126] cases aforesaid, it shall be lawful for the party *damnified to sue

him for the amount of the damage sustained, such amount to be recovered by an action on the case, together with full costs of suit." Where any of the offences, for which compensation is granted by virtue of that act, are committed in the county of a city or town, or in any such liberty, franchise, city, town or place, as either does not contribute at all to the payment of any county rate, or contributes thereto, but not as being part of any hundred, or other like district; it is enacted that "the inhab itants thereof shall be liable to yield compensation, in the same manner, and under the same conditions and restrictions in all respects, as the inhabitants of the hundred; and every thing in that act in any wise relating to a hundred, or to the inhabitants thereof, shall equally apply to every county of a city or town, and to every such liberty, franchise, city, town and place, and to the inhabitants thereof; and where the justices of the peace of the county, riding or division, are excluded from holding jurisdiction in any such liberty, franchise, city, town or place, in every

such case, all the powers, authorities and duties by that act to or imposed on such justices, shall be exercised and performed by the justices of the peace of the liberty, franchise city, town or place, in which such offence shall be committed; and where the offence shall be committed in a county of a city or town, all the like powers, authorities and duties, shall be exercised and performed by the justices of the peace of such county of a city or town; And in every action to be brought, or summary claim to be preferred, under that act, against the inhabitants of a county of a city or town, or of any such liberty, franchise, city, town or place, the process for appearance in the action, and the notice required in the case of the claim, shall be served upon some one peace officer of such county, liberty, franchise, city, town or place: And all matters which by that act the high constable of a hundred is authorised or required to do, in either of such cases, shall be done by the peace officer so served, who shall have the same powers, rights and remedies, as such high constable has, by virtue of that act, and shall be subject to the same liabilities; and shall, notwithstanding the expiration of his office, continue to act, for all the purposes of that act, until the termination of all proceedings in, and consequent upon such action or claim; but if he shall die before such termination, his successor shall act in his stead."(a)

In following up a writ of execution to its consummation, under the statute of hue and cry, 8 Geo. II. c. 16, which the subsequent statute of 19 Geo. II. c. 34, § 6, refers to, and adopts as the mode of proceeding in case of a penalty recovered by the executor of a revenue officer killed in pursuit of smugglers, against the inhabitants of the hundred, (or of a Lathe, in Kent,) and which latter statute is not repealed by 7 & 8 Geo. IV. c. 27, it is sufficient for the sheriff, to whom the writ had been delivered, to return, even after the expiration of sixty days given him by the act to return the writ, that he had delivered it to the [127] justices of the peace of the hundred, &c. who are charged with the

duty of directing the levy on the inhabitants, and that they had done nothing upon it; and the court of King's Bench will not thereupon attach the sheriff, for not returning the writ, but the next proceeding is against the magistrates, to oblige them to do their duty.(aa)

*CHAPTER VII.

[ *128 ]

Of the CAPIAS by ORIGINAL, and PROCESS of OUTLAWRY, in the KING'S BENCH, and COMMON PLEAS.

AT common law, the defendant was not liable to be arrested, upon mesne process, for civil injuries unacompanied with force. (a) This immunity of the defendant's person, in case of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrongdoers, a capias was allowed to arrest the person, in actions of account, though no breach of the peace were suggested, by the statutes of Marlbridge, (52 Hen. III.) c. 23, (a) 12.

(aa) 13 East, 544.

(a) 3 Co. 12.