had not made out and passed certain accounts of him the plaintiff as such assistant overseer as aforesaid, the same containing, amonst other things, an account of the receipts and disbursements of the plaintiff as such assistant overseer, and which said accounts so made out as aforesaid the plaintiff, before the committing of the alleged grievances in that count mentioned, had not verified on the oath of the plaintiff-concluding to the country. The cause was tried before Lord Abinger, C. B., at the last Assizes for the county of Norfolk. The facts were as follow :-In the years 1833 and 1834, the plaintiff was the assistant overseer of the poor of the parish of West Rudham, in Norfolk, acting under an appointment by justices pursuant to the 59 Geo. 3, c. 12 (a), by which he was impowered to execute all the duties appertaining and incident to the office of the ordinary overseer. The warrant for the plaintiff's appointment recited that he had been duly elected. It was a part of the plaintiff's duty as such assistant overseer to make the entries of all receipts and disbursements on account of the parish; and to make out an account at the end of each year, and verify it on oath before two justices. The accounts in question were in (a) Section 7, which enacts "that it shall be lawful for the inhabitants of any parish in vestry assembled to nominate and elect any discreet person or persons to be assistant overseer of the poor of such parish, and to determine and specify the duties to be by him or them executed and performed, and to fix such yearly salary for the execution of the said office as shall by such inhabitants in vestry be thought fit; and it shall be lawful for any two of his majesty's justices of the peace, and they are hereby impowered, by 1835. CANNELL v. CURTIS. 1835. CANNELL 1. CURTIS. the handwriting of the plaintiff, and signed by him, but were headed "Overseers' accounts;" and at the foot was the following memorandum : "1834, March 31st. Verified on oath of Annison Cannell, overseer of the parish of West Rudham, and allowed by us until just cause shewn to the contrary. "Edward Marsham. "Joseph Scott." On the part of the defendant it was objected that the warrant of the magistrates was not sufficient evidence that the plaintiff had been duly appointed assistant overseer; and that the accounts produced did not support the allegation in the declaration that the accounts passed were the accounts of the plaintiff. His lordship reserved the consideration of these points for the court; and the jury returned a verdict for the plaintiff-damages 50%. Storks, Serjeant, in Easter Term, obtained a rule nisi to enter a nonsuit, on the grounds urged at the trial, and also on the ground that the writing in question did not constitute a libel, inasmuch as the oath was voluntary, the assistant overseer not being required by the statutes 17 Geo. 2, c. 38, s. 1, and 50 Geo. 3, c. 49, s. 1, to verify his accounts on oath, and consequently such an oath not being one for which an indictment for perjury would lie. Biggs Andrews now shewed cause.—It is only necessary for the plaintiff to shew that there was some evidence to sustain the verdict. If the word appointed had not been found in the declaration, there still would have been a sufficient general allegation that the plaintiff held the office of assistant overseer. In Rex v. Verelst, 3 Camp. 432, it was held, that, on an indictment for perjury in a proceeding before a surrogate, it is primâ facie sufficient to prove that he has generally acted in that capacity. And in Berriman v. Wise, 4 T. R. 366, in an action by an attorney for words spoken by him in his profession, it was held that he need not prove that he is an attorney by his admission, or by a copy of the roll; proof that he acted as such is sufficient. In the present case the plaintiff proved that he had in fact acted as assistant overseer. If further proof was required, it was not wanting : the warrant of appointment by the magistrates was produced. It was not necessary to go further, and prove that a vestry had been duly held in pursuance of the 58 Geo. 3, c. 69, s. 1 (b), and that such vestry, so being duly assembled, nominated and elected the plaintiff to be assistant overseer. The general overseers were appointed by the magistrates: it was necessary that they should be principal inhabitants of the parish; and yet no proof of that fact was ever required. So, the parish surveyor is by statute required to be appointed in a certain way: a nomination takes place, and a list is made out, and the appointment of an individual on the list is made by the magistrates; and such nomination and list were never required to be proved. The recital here of the nomination and election in the appointment is at least prima facie evidence that such nomination and election took place: the magistrates had no power to make the appointment without them; and the court will presume that they have properly discharged their duty.-Then it is said that the allegation that the accounts in question were the plaintiff's accounts was not supported, inasmuch as the accounts themselves purported to be the "Overseers' accounts." The heading, however, was mere matter (b) By which it is enacted "that no vestry or meeting of the inhabitants in vestry of or for any parish shall be holden until public notice shall have been given of such vestry, and of the place and hour of holding the same, and the special purpose thereof, three days at the least before the day to be VOL. II. appointed for holding such vestry, CC 1835. CANNELL v. CURTIS. 1835. CANNELL v. CURTIS. poor as of form the accounts were in fact accounts of the receipts Storks, Serjeant, and Palmer, in support of the rule.— The plaintiff has in his declaration alleged that he was appointed (which must in law be held to mean duly appointed) assistant overseer; and the plea distinctly traverses that allegation: the plaintiff therefore was bound to prove it; and he could only prove a due appointment by shewing that a vestry was properly held in pursuance of the 58 Geo. 3, c. 69, s. 1, that he was, under the 59 Geo. 3, c. 12, s. 7, nominated and elected by the vestry assembled, that his duties and salary were determined and fixed, and that, being so nominated and elected by the vestry, he received his appointment by warrant under the hands and seals of two justices of the peace. In all these preliminary and necessary steps the plaintiff's proof was defective. In Moises v. Thornton, 8 T. R. 303, the plaintiff having alleged that he was a physician, and had duly taken the degree of doctor of physic, it was held that the allegation was not sustained by the mere production of a diploma under the seal of one of the universities. [Tindal, C. J.— (c) See the statutes 17 Geo. 2, c. 38, s. 1, and 50 Geo. 3, c. 49, s. 1. Suppose in that case the diploma had been duly proved, could it be contended that the plaintiff would be bound to shew that all the preliminary steps necessary to the obtaining the diploma had been properly taken ?] Probably not. Buller, J., in Pickford v. Gutch, 2 Starkie on Slander, 373, 8 T. R. 305, n., ruled that evidence of a party having acted as a physician would not suffice in support of an allegation that he had used and exercised the profession &c. of a physician. With respect to Berriman v. Wise, Chambre, J., in Smith v. Taylor, 1 New Rep. 196, where this point was very much discussed, says: "The case of Berriman v. Wise was a relaxation of the rules of evidence, though perhaps, under the special circumstances, well warranted. There, the words spoken were spoken of the plaintiff as attorney in a particular cause, and, being a threat to have him struck off the rolls, amounted to a distinct acknowledgment of his professional character as an attorney. Indeed, the court proceeded entirely upon that ground (d)." Here the plaintiff's official character is not admitted on the record; but, on the contrary, a direct issue is tendered upon it.-The accounts were headed and passed as the accounts of the overseers, not of the plaintiff; they contained all the receipts and disbursements connected with the office of overseer. The assistant overseer is no where required to verify these accounts on oath; and the libel must be intended to have reference, not to a mere voluntary oath, but to a judicial oath-one that the party is required or authorized by law to take. [Tindal, C. J.— The overseer is bound to verify his accounts on oath; and the assistant overseer is authorized and impowered by the act to execute all such of the duties of the office of overseer as should be expressed in the warrant for his appointment (andthis was one of them), in like manner and as fully as the same might be executed by the general overseer.]—The al (d) And see Green v. Jackson, Peake, 236. 1835. CANNELL บ. CURTIS. |