on the public works within the county, to be repaid by instalments. antecedent debt This money had been advanced, from time to time, in 1817 and although such 1818, and repaid in account, but further advances being made, debt had been incurred for the balance remaining due to the bank was 4477., in part payment of which this order was made. The affidavits on the other side county purposes, is bad. stated, that the whole money had been, in fact, laid out for county purposes. The Court (after hearing counsel against, and in support of the rule,) made the rule absolute; observing, that this was a rate to reimburse persons for a debt previously contracted, which was clearly bad, inasmuch as the justices had no right, except by Justices have no following the provision of particular acts of parliament, which right to anticihad not been done here, to anticipate the county rates, and so to pate the county make the expense ultimately fall on different persons from those rates. who were by law liable at the time it was incurred. Writ of certiorari granted. County Treasurer. treasurer to to the justices in sessions to election of a make a new county trea REX v. The Justices of Herefordshire & the County Treasurer of Qué warrants the same Shire, M. 60 G. 3. 1 Chitt. Rep. 700. W. E. Taunton will not lie moved for a writ of quo warrantó, to be directed to the county trea- against a county surer of Herefordshire, calling upon him to shew by what authority shew by what he held the office of county treasurer. This motion was founded up- authority he on a suggestion that the election of the said county treasurer was holds the office, void, inasmuch as one of the justices of the peace, who voted at if he has been the election, had not at the time of the election duly qualified de facto elected himself by taking the oath prescribed by stat. 18 G. 2. c. 20. The by the justices in quarter sesCourt immediately interposed, and said that a writ of qué war- sions; nor will rantó would not lie in this case; and without some authority being mandamus lie cited for such a purpose, they would not now for the first time assume an authority which had not hitherto been exercised. They could grant a mandamus to the justices in sessions to elect a county treasurer where the office was void, but it being stated at the bar that there was a county treasurer elected de facto, they could not call upon that person to shew by what authority he held the office. Writ refused. W. E. Taunton then shaped his motion anew, and applied for a mandamus to the justices at sessions to elect another county treasurer in the room of the gentleman already appointed, on the like ground stated in his first motion, contending that the election which had taken place was of no effect, inasmuch as the acts of the justice already alluded to were null and void; and he relied upon stat. 18 G. 2. c. 20., which declares that no person shall be capable of acting as a justice of the peace, who shall not before he acts at the sessions of the county, take and subscribe the qualification oath therein set forth. ABBOTT C. J. I am of opinion although he that we ought not to grant a mandamus in this case. The objection may be liable to to the appointment of the county treasurer is, that one of the penalties. justices who voted at the election had not previously taken the 3 Burn, 114. qualification oath, and consequently, that the act of that justice is void, so as to annul the election. We cannot grant a mandamus to fill up such an office as this, unless it is actually void. Without surer, on the ground that one of the justices who had voted at the election had not taken the qualification oath prescribed by stat. 18 G.2. c. 20. prior thereto, for the acts of the justice are not void, was sitting. looking at the wisdom of the rule, this Court does not grant a mandamus to appoint to an office which is already full. If it can be shewn that the office is filled colourably only, or by fraud, the Court would consider the appointment as invalid; but even then we should require a very strong case to be made out to justify our interposition. This, however, is not a case in which any thing amiss appears to have been done, and we cannot undo the act of the justices by commanding them to make a fresh appointment. This office is full de facto, and we cannot say that the act of the justice, who had not taken the qualification oath, is void. In a (a) Parliament very few weeks (a) the acts of this magistrate would be rendered completely valid by an indemnity act, and he will be a good justice. BAYLEY J. The acts of the justice are valid, although he may be liable to certain penalties. Can it be contended that if a magistrate who has taken the qualification oath, that he is worth 100l. per annum, and from circumstances is afterwards reduced to 80l., and he commits a man after his income is so reduced, an action will lie against a gaoler for taking the man into his custody? If that cannot be contended, the argument here fails. The construction to be put upon the 18 G. 2. c. 20. is, that the magistrate shall be only so far disqualified from acting, that he shall be subject to certain penalties if he does act. In this case the acts of the justice are valid, though he may be liable to penalties for not having taken the oath prescribed by the statute. HOLROYD J. The statute merely operates as a personal prohibition, declaring that it shall be unlawful for the magistrate himself to act, and he is punishable for doing that which the statute prohibits him from doing; but his acts are not void. R. R. Debtors. [See INSOLVENT DEBTORS, post.] 1 Burn, 705. Distress. (For what causes a Distress shall be, and what Goods may be Distrained.) [1 Burn, 704, 705.] THE true construction of stat. 2 W. & M. sess. 1. c. 5. in requiring an appraisement, is, that the value of the goods might be ascertained by a fair estimate made at the time of the distress; and that, if on such valuation there should not be thought sufficient without them, the landlord might distrain beasts of the plough. Where, therefore, there had been such an appraisement on oath, and no evidence was offered to shew that there was a sufficient distress without taking the beasts of the plough, the Court of Exchequer held, that it was not necessary that the other goods should all have been first disposed of before the latter were sold; unless they were wrongfully taken in the first instance, such sale was not a sufficient ground to support an action on stat. 51 Hen. 3. stat. 4. Jenner v. Yolland, T. 58 G. 3. 6 Price, 3. Under stat. 2 W. & M. sess. 1. c. 5. § 2. and 11 G. 2. c. 19. § 10. 1 Burn, 718. a landlord distraining may remain more than five days on the premises for the purpose of selling the goods distrained, it must be left to a jury what is a reasonable time for the purpose. Pitt v. Shew, H. 1 & 2 G. 4. 4 B. & A. 208. A sale by a landlord of standing corn, taken as a distress before 1 Burn, 845. it is ripe, is void, and the tenant need not replevy; but as no legal damage could arise to the tenant from such sale, he could have no ground of action in respect thereof. Where, therefore, the plaintiff had stated this as damage in his declaration, and had recovered damages in part on that account, the court of K. B. directed a new trial, unless he would consent to reduce the verdict. Owen v. Legh and another, H. 60 G. 3. & 1 G. 4. 3 B. & A. 470. The Crown, or its process, not being in any way alluded to in stat. 1 Burn, 707. 56 Geo. 3. c. 50. is not affected by the provisions it contains for preserving covenants between the tenants and landlords of lands, &c. let to farm; the Court of Exchequer, therefore, held that the sheriff, on a writ of venditioni exponas issued after an extent, could not sell the crops, &c. taken under it, subject to any condition that the same should be used and expended according to the covenants of the lease. Rex v. Osbourne, Sitt. after T. T. 58 Geo. 3. 6 Price, 94. Trees growing in a nursery-man's ground, who was a yearly tenant to the plaintiff, and removeable by such tenant from time to time, are not distrainable for rent under stat. 11 G. 2. c. 19. § 8. Clark v. Calvert, H. 59 G. 3. 3 Moore, C. P. 96. See also Clark v. Gaskarth, 2 Moore, C. P. 491. S. P. Growing crops taken under a fi. fa. in the hands of the sheriff's vendee, are protected from the landlord's distress for rent subsequently accruing. Peacock v. Purvis, M. 1 G. 4. 2 Brod.& Bing. 362. A sheriff has no right under a to seize fixtures where freehold of the person against whom the execution issues. Winn v. Ingilby, Bart. and Hauxwell, E. 3 G. 4. 5B. & A. 625. Trespass for breaking and entering plaintiff's house, and taking his fixtures, goods, and chattels. Justification under a writ of fi. fa. directed to the defendant, Ingilby, as sheriff of the county, the house in under which the defendant, Hauxwell, his bailiff, peaceably entered which they are the premises, and seized, &c. Replication de injuria, &c. At situated is the the trial at the last assizes for Yorkshire, before Cross Serjt., the only question was, whether the defendants were justified in seizing, under the execution, some fixtures, consisting of set pots, ovens, and ranges. It appeared that the house where these were fixed was built on the plaintiff's own freehold, and the learned serjeant was of opinion, that under these circumstances they were not seizable by the sheriff under an execution. The plaintiff accordingly had a verdict. And now Littledale moved to enter a verdict for the defendants. In Poole's case, 1 Salk. 368., it was held that the sheriff might take in execution vats, coppers, &c. which had been put up by a soap-boiler in order to carry on his trade; and whatever the tenant, as between himself and the landlord may remove, the sheriff may seize. He referred also to Elwes v. Maw, 3 East, 38; and Ex-parte Quincy, 1 Atk. 477. See 1 Burn, 710. Per Curiam. The verdict is right, for these were fixtures which would go to the heir, and not to the executor, and they were not liable to be taken as goods and chattels under an execution. Here, the house where they were fixed was the freehold of the plaintiff, which distinguishes this case from those cited. R. R. A creditor may, with the assent of the debtor, remove goods from the premises for the payment of a bond fide debt without incurring the penalty of stat. 11 G. 2. c. 19. § 3. against persons assisting in removing goods. The stat. seems to have had in view a fraudulent removal by the tenant, where the object was to withdraw the property from the landlord's reach, for the purpose of securing it for his own benefit. Such an object may be accomplished either by a clandestine removal of the tenant himself, or by his procuring some other person to make a pretended purchase on the premises, and remove the property under colour of such purchase. Bach. v. Meats, T. 56 G. 3. 5 M. & S. 200. (A.) RECOGNIZANCE on APPEAL against a Conviction County of BE it remembered, that on the } in the in day of year of the reign of our sovereign lord George the fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland, king, defender of the faith, A. O. of in the said county, yeoman, and A. S. ofthe said county, ironmonger, personally came before us, J. P. and K. P. esquires, two of his majesty's justices of the peace in and for the said county, and acknowledged themselves to owe to our said lord the king the sum of· -7., [the amount must be double the sum ordered to be paid by the conviction, 11 G. 2. c. 19. § 6.] to be levied of their goods and chattels, lands and tenements, to the use of our said lord the king, his heirs and successors, if the said A. O. shall make default in the condition following: The condition of this recognizance is such, that whereas the said A. O. is this day duly convicted before us, the above-named justices of the peace, of having wilfully and knowingly aided and assisted B. O. of within the parish of· in the county of the day •, yeoman, in the night of of last, in fraudulently and clandestinely removing and conveying away part of the goods and chattels of the said B. O. from aforesaid, not exceeding the value of fifty pounds, and in concealing the same, so as to prevent E. E. of in the said county, esquire, from taking and seizing the same for arrears of rent due to the said E. E. from the said B. O., for a certain tenement, [or, as the case may be] situate at aforesaid; for which offence the said A. O. has been adjudged to forfeit to the said E. E. the sum of- l., being double the value of the said goods, by the said A.O.so carried off and concealed: Now if the said A. O. shall personally appear at the next quarter sessions of the peace to be held at -for the said county of , and commence and prosecute an appeal against the said conviction, and pay such costs as shall be then and there awarded by the said court against the said A. O., and not depart without leave of the court, then this recognizance to be void. Acknowledged before us, J. P. K. P. DISTRESS. Rescous and Pound Breach. (B.) Information for a Rescous and Pound Breach, at Com· From Y. C. P. 77. et seq. mon Law. of [1 Burn, 716.] County of THE information and complaint of A. I., constable , [as the case may be,] in the said county, taken and made upon oath before me, J. P. esquire, one of his majesty's justices of the peace in and for the said county, the day of in the year of our Lord one thousand eight hundred and : Who says, that as constable of the said parish of [or, bailiff, &c. or, as the case may be,] he received a warrant under the hand and seal of E. E. esquire, [or, me, as the case may be,] one of his majesty's justices of the peace in and for the said county of of -, bearing date the day instant, by which he, the said constable, was commanded to sell such and so much of the goods and chattels of A. O. late of in the said county, yeoman, as should satisfy and pay the sum of T. K. constable of the aforesaid parish of -l., being the charges of conveying the said A. O. to the house of correction [or, as the case may be,] of the said county at in the said county, to which house of correction [or, as the case may be,] he the said A. O. was committed for a misdemeanor [or, felony, as the case may be,] by a warrant under the hand and seal of the said E. E.; that under the said warrant first beforementioned, he the said informant yesterday morning, being the day of instant, took a distress on a quantity of potatoes [or, as the case may be,] belonging to the said A. O. in a house in the village of in the parish of county aforesaid, and put a lock on the door; but that last evening the said lock so placed on the said distress was broken by B. O. [or, the said A. O. as the case may be,] of in the said county, labourer, and that the said potatoes, so taken as a distress, were rescued by the said B. O. [or, A. O. as the case may be,] in breach of the peace, and to the delaying of justice. He therefore prays that hue and cry may be levied against the said B. O. [or, A. O. as the case may be,] for the said rescous and pound breach, as against those who break the peace. in the Before me, * See the form of the warrant here referred to in 1 Burn, 840. A. I. |