But in the shape which the question now assumes, this rule must be dis charged, if I ought then to have nonsuited the plaintiff; and upon consideration, I am of opinion, that I ought to have done so. It is a general rule and principle of law, that where justices of the peace have an *653] authority given to them by an act of Parliament, and they appear to have acted within the jurisdiction so given, and to have done all that they are required by the act to do in order to originate their jurisdiction, a conviction drawn up in due form, and remaining in force, is a protection in any action brought against them for the act so done. It has been said, that this doctrine applied to such cases as the present will work great injustice, but that argument was pressed too far. The seventeenth section of the statute gives an appeal to the Judges at the next assize; the tenant may, therefore, have summary redress if any wrong has been done, and the appeal is not attended with any great risk, for if it is dismissed, the amount of the costs to be awarded against the appellant cannot exceed 5/. It has also been said, that a proceeding taken ex parte and without notice, will preclude the tenant from disputing that the rent is in arrear. The record may, indeed, be conclusive upon that point in favor of the justices, but will not protect the landlord. If the rent were not in arrear as alleged, he would be liable to an action on the case, for wrongfully procuring the justices to interfere. There are many cases in which a magistrate acting bona fide may be protected, and yet the person upon whose information he has acted may be liable to an action for giving false or malicious information. In the proceeding in question the statute does not direct the justices to make inquiry upon oath; can this court, then, impose upon them the necessity of doing so; or can we say, that by forbearing so to inquire, or by omitting to state on their record that they did so inquire, they have neglected to take any step made necessary by the statute *654] to originate their jurisdiction? It no where requires information *to be made on oath, or that it shall in that mode be proved that the rent is in arrear: but that "if any tenant holding lands, tenements, or hereditaments at a rack rent, or where the rent reserved shall be full three-fourths of the yearly value of the demised premises, who shall be in arrear for one year's rent, shall desert the demised premises, and leave the same uncultivated or unoccupied, so as no sufficient distress can be had to countervail the arrears of rent; it shall and may be lawful to and for two or more justices of the peace of the county, riding, &c. (having no interest in the demised premises) at the request of the lessor or landlord, or his or her bailiff or receiver, to go upon and view the same, and to affix on the most notorious part of the premises notice in writing what day (at the distance of fourteen days at least) they will return to take a second view thereof." The justices are, therefore, to determine upon their own view, whether the premises are deserted or not. Suppose the case of a refusal by all the justices of the district to act upon the information and request of the landlord; this is certainly an extreme case and not likely to occur, but if it did, must not this court direct them to go and view the premises? It is clear, that we cannot require of them to act only where information is given on oath, as the legislature has not made that requisite. The record given in evidence, therefore, shows that they had jurisdiction, and is conclusive in their behalf, leaving to the tenant such other remedy as he may have against the landlord, if he has improperly set the justices in motion by means of false information.

*BAYLEY, J. A landlord would certainly be liable to an action on *655] the case, for improperly procuring the interference of the magistrates under the statute in question. But this is an action against the magistrates, and the only question is, whether upon the face of their proceedings they appear to have acted within the scope of their jurisdiction. The 11 G. 2, c. 19, + Altered to half a year's rent by the 57 G. 3, c. 52.

VOL. X.-38

s. 16, does not require that any information or complaint shall be made on oath, but that the magistrates shall, at the request of the landlord, go and view the premises, and if they find them in a given state, affix a notice, stating that on a certain day they will return; and then if the rent arrear is not paid, or no sufficient distress is fouud on the premises, they are to put the landlord in possession. It is said that this measure is extremely harsh, and that the power thus given to the magistrates may be used as an instrument of oppression; but it must be remembered, that magistrates acting corruptly are liable to criminal informations. Then it is assumed that the tenant, the party grieved, is without remedy; but that is not so, he has a manifest right of action against the landlord, if he improperly procures the interference of the magistrates; and it would be most mischievous to subject the magistrates to an action under such circumstances. The tenant has also a summary remedy by appeal to the justices of assize. The record, however, unappealed from, is conclusive as to the magistrates, for it is their duty to act on the request of the landlord, and it appears by the record, that they did so act, and that they pursued the directions given by the statute.

HOLROYD, J. I am of the same opinion. This was an action of trespass against magistrates, who say that they have acted in discharge of a

duty imposed by an act of Parliament; and the question is, whether [*656

their record of the proceedings is conclusive in their favor. It has been objected, that the complaint should have been on oath, but that is not required unless specially directed by the act of Parliament. That objection, therefore, cannot avail if the magistrates have acted in the mode pointed out by the statute; and if they have done so, many cases establish that their record is conclusive in this action, although they will be liable to punishment if they have corruptly made it differ from the real facts of the case. The statute 11 G. 2, c. 19, s. 16, gives the magistrates jurisdiction to act at the request of the landlord, and whether his statement be true or false they have power to view the premises and investigate the complaint. They are, therefore, judges of record as has been decided on the statutes of forcible entry. Thus it has been held, if a justice of peace record that upon his view as a force, which is no force, he cannot be drawn in question either by action or indictment," cited in Floyd and Barker's case, 12 Co. 25, and in Greenwell v. Burwell, 1 Salk. 397, and in 27 Ass. 19, there is this passage, "A judge of oyer and ter miner, where the jury found and presented a fact to be a trespass, caused their finding to be entered as a felony, and yet could not be punished by indictment or otherwise, because he was a judge of record, and the indictment against him was to defeat his record by averring against what he did as a judge of record," Salk. 397. So also in Strickland v. Ward, 7 T. R. 634, n. which was trespass for false imprisonment brought against a magistrate who produced, in answer, a conviction of the plaintiff for unlawfully [*657 returning to a parish, after having been legally removed thence, without bringing a certificate, and also a warrant reciting that conviction, Yates, J., held that the conviction could not be controverted in evidence; that the justice having a competent jurisdiction of the matter, his judgment was conclusive till reversed or quashed; and that it could not be set aside at Nisi Prius, and the plaintiff was nonsuited. If, indeed, a justice acts without jurisdiction, he is liable to an action of trespass, Morgan v. Hughes, T. R. 225. In Miller v. Seare, 2 W. Bl. 1141, which has since been overruled, Doswell v. Impey, 1 B. & C. 163, it was held that an action would lie against commissioners for committing a bankrupt who did not answer to their satisfaction. Lord Chief Justice De Grey, held that the commissioners were not judges, but admitted that they would have been protected had they been acting as judges; and he says, "So justices of the peace may be justices of record, when made so by act of Parliament, as in case of riots, force, going armed, &c., in which cases their records are not traversable." In this case, I think that the justices

were made judges of record, that their record was not traversable, and that it was a conclusive answer to the action. The rule for a new trial must, therefore, be discharged.

Rule discharged.t

† Littledale, J., was attending the Admiralty Sessions at the Old Bailey.

#658]

*SPENCELEY v. ROBINSON.

By statute 17 G. 3, c. 3, s. 2, it is enacted, "that overseers of the poor shall permit inhabitants of the parish to inspect rates at all seasonable times, and shall upon demand forthwith, give copies of the same to any inhabitant of the parish ;" and by s. 3, "if any overseer shall not permit an inhabitant to inspect the rate, or shall neglect to give copies thereof as aforesaid, such overseer for every such offence shall forfeit and pay to the party aggrieved the sum of 201. Held, first, that in order to entitle a party to sue for the penalty under the statute, he must show that he has sustained an injury by the act of the overseer: Held, secondly, that there must be a demand to inspect the rate made at a reasonable time and place; and,

Semble, that the house of the overseer is the place at which the demand ought to be made. Thirdly, although the statute says, that copies shall upon demand be forthwith given, yet the overseer is entitled to a reasonable time for making them out.

DEBT on the statute 17 G. 2, c. 3. The declaration stated, that the plaintiff was an inhabitant of the township of Coxwould, in the North Riding of the county of York, and that the defendant was one of the overseers of the poor of that township; that on the 26th of March, 1824, the churchwardens and overseers of the poor of that township made a rate for the relief of the poor, which was afterwards duly allowed by two justices; and that the churchwardens and overseers, after the allowance of the rate, gave public notice thereof in the church. The declaration then stated, that the plaintiff requested the defendant, as such overseer, to permit him, the plaintiff, to inspect the rate, and tendered to him one shilling for the same; yet that the defendant neglected and refused to permit the plaintiff to inspect the rate, contrary to the form of the statute, &c., whereby defendant forfeited 201. The second count stated, that the plaintiff at a reasonable time, to wit, on, &c., at, &c., demanded of the defendant, so being such overseer, a copy of the rate, and was ready and offered to pay to the defendant, at, and after the rate of 6d. for every twenty-four names thereof, yet that the defendant refused to give him the copy:

At the trial before Bayley, J., at the Summer assizes, for the county of York, 1824, the following appeared to *be the facts of the case: The *659] plaintiff was an inhabitant of the township of Coxwould, and the defendant was overseer of that parish. The rate in question was made on the 26th of March, allowed on the 27th, and published on the 28th. About eight o'clock of the 19th of April, the plaintiff sent his son to the defendant, to request that he would come to him at his, plaintiff's, house. The defendant went and saw the plaintiff and his attorney; the plaintiff asked the defendant to allow him to inspect the rate, and tendered him 18. on that account. defendant said that he durst not allow it, he was ordered not to do it. plaintiff's attorney then asked him for a copy of the rate. The defendant then went away, and related what had taken place to the Rev. Mr. Newton, a magistrate, and stated that he had not shown the rate, because he was informed that he was not obliged to show it. Mr. Newton, told him that he was, and pointed out the clause in the act of Parliament, and advised him to

The 'The

go back immediately and show the plaintiff the rate, and take a copy of it next morning as early as possible to the attorney. The defendant did return to the plaintiff's house, in about two hours after the inspection of the rate had been demanded, and offered to show him the rate, and the defendant made out a copy that night and delivered it to the plaintiff's attorney early the following morning. The latter said that it was too late, for the plaintiff could not appeal to the next sessions. The defendant said that he would waive all objection to the notice. The defendant, on the 17th of April, had met the plaintiff's attorney in Helmsley market, which is about eight miles from Coxwould, and he then asked him if he had a copy of the rate, for he was employed by the plaintiff and wished to see one. 'T'he defendant said that he should [*660 have one if he was entitled to it, and the attorney replied that he should' be at Coxwould on Monday, the 19th, and should expect to have one. Upon this evidence the learned judge told the jury, that although there was a resusal at one time to permit an inspection of the rate, the question was, whether that refusal was not done away with by what subsequently took place, the defendant within two hours after the refusal, having offered to allow the plaintiff to inspect the rate, and having delivered a copy to the plaintiff's attorney early next morning. A party was bound to give an overseer a reasonable time to do what the law required. The learned judge then told the jury, that if they thought that the defendant had complied with the demand in a reasonable time, the defendant was entitled to a verdict. The jury found a verdict for the defendant. A rule nisi was obtained for a new trial in Michaelmas term, upon the ground that this verdict was against evidence, and also upon the ground, that the learned judge misdirected the jury, inasmuch as a permission to inspect the rate having been once refused, a right of action vested in the plaintiff.

Scarlett and Alexander, now showed cause. The words of the 17 G. 2, c. 3, s. 2, are, that the churchwardens and overseers of the poor shall permit all and every the inhabitants of the parish, township, or place, to inspect every such rate at all seasonable times, paying 1s. for the same, and shall upon demand forthwith give copies of the same, or any part thereof, to any inhabitant of the said parish, township, or place, paying at the rate of 6d. for every twenty-four names. The third section enacts, that if any church["661 warden or overseer shall not permit any inhabitant or parishioner to inspect the rate, or shall refuse or neglect to give copies thereof as aforesaid, the churchwarden or overseer for every such offence shall forfeit and pay to the party aggrieved the sum of 201. The statute creates two offences; the one is not permitting the inhabitant to inspect the rate, the other is the refusing to give copies thereof. The refusal to permit implies a previous request, and it must be made at a reasonable time and a reasonable place. Now, an overseer cannot be expected to carry the rate book with him, and, therefore, the request to see the rate should have been made at the house of the overseer. Here it was made at the plaintiff's house, when the defendant had not, and could not be expected to have the rate book with him. Then as to the demand of the copy of the rate, there was no legal demand until the evening of the 19th, for that was the first demand made by an inhabitant of the parish, and a reasonable time must be allowed for the purpose of making out the copy. It appears by the evidence, that a copy was made out by twelve o'clock that night, and delivered early next morning to the plaintiff's attorney. The defendant, therefore, complied with that demand within a reasonable time. Besides, the penalty is given to the party aggrieved. Now the plaintiff was not aggrieved by this act of the defendant, for he might have entered his appeal at the then next sessions, and the justices might have adjourned it to a further sessions under the 17 G. 2, c. 38, s. 4. Besides, by the 41 G. 3, c. 28, s. 5, the parties might in open court have consented to waive any objection to the appeal.

*Brougham, contra. The statute imposes a public duty upon the churchwardens to permit the inspection of the rate, and to give copies, without reference to any injury done to an individual. The question was not submitted to the jury, whether the request was made at a reasonable time and place. The question submitted to them was, whether the demand was complied with within a reasonable time. A refusal was distinctly proved, and that being so, a right of action had vested in the plaintiff, which was not divested by a subsequent offer to allow the plaintiff to inspect the rate. It might have been a question for the jury, whether the acts proved amounted to a refusal to permit an inspection or to give a copy; but upon that point the weight of evidence was in favor of the plaintiff; for it appeared that on the 17th of April, the defendant had notice that a copy would be required of him on the 19th.

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ABBOTT, C. J. My doubt in this case has been, not whether the learned Judge left the proper question to the jury, but whether he ought to have left any question at all to the jury. I think that the plaintiff ought to have been nonsuited. The 17 G. 2, c. 3, s. 2, enacts, that the churchwardens and overseers shall permit all the inhabitants of the parish, township, or place, to inspect every such rate at all seasonable times, paying 1s. for the same, and shall, upon demand, forthwith give copies of the same, or any part thereof, to any inhabitant of the said parish, township, or place, paying at the rate of 6d. for every twenty-four names." The person to whom an inspection is to be allowed, or a copy to be given, must be an inhabitant. The defendant, therefore, was not bound to attend to the request made by the *663] *attorney of the plaintiff on the 17th. The next clause enacts, "that in case any overseer shall not permit any inhabitant or parishioner to inspect the said rates, or shall refuse or neglect to give copies thereof, such churchwarden or overseer, for every such offence, shall forfeit and pay to the party aggrieved 20/." The latter words plainly import that the penalty is to be given to the party who has sustained an injury by the act of the overseer. Now here the plaintiff sustained no injury, for he was not deprived of his appeal by what took place, as it might have been entered at the next sessions, and the justices had power to adjourn it to a subsequent sessions. The question left to the jury was, whether the defendant had, within a reasonable time, complied with the request of the plaintiff to be permitted to inspect the rate, or to have a copy. Before any right of action could vest in the plaintiff, by reason of the defendant's not permitting him to inspect the rate, a request must have been made for such permission at a reasonable time and place. The house of the overseer, where he may be fairly supposed to keep the rate book, must be the reasonable place for making such a request or demand. Now in this case, the overseer, without having any notice that the rate book is required, is desired to come to the plaintiff s house, and the demand to inspect the rate book is made at a place where it was known he could not have the book with him. That was an unreasonable place for making the request. I think, therefore, that there was in this case no legal request or demand to inspect the rate book. Then, as to the copy of the rate; assuming that the demand of a copy made by the solicitor, in the presence of the plaintiff, to

have been a demand by the latter, the defendant was entitled to a

*664] reasonable time to comply with that demand. For, although the statute requires the overseer to furnish the copy forthwith, that word must receive a reasonable construction, so as to give the overseer an opportunity of making the

copy required. Here the copy was made during the night, and delivered the following morning. That demand was complied with in a reasonable time, and the plaintiff ought to have been nonsuited. It has been contended, that the question was not left to the jury, whether the demand was made at a reasonable time and place, but the question submitted to them implied as much, and the learned Judge must be taken to have left to them to say, whether the