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1835.

CANNELL

v. Curtis.

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

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(a) Section 7, which enacts that they are hereby impowered, by it shall be lawful for the inhabit- warrant under their hands and ants of any parish in vestry assem- seals, to appoint any person or bled to nominate and elect any persons who shall be so nominated discreet person or persons to be

and elected; and every person apassistant overseer of the poor of pointed assistant overseer is hereby such parish, and to determine and authorized and impowered to exespecify the duties to be by him or cute all such of the duties of the them executed and performed, office of overseer of the poor as and to fix such yearly salary for shall in the warrant for his apthe execution of the said office pointment be expressed, in like as shall by such inhabitants in manner and as fully to all intents vestry be thought fit; and it shall and purposes as the same might be lawful for any two of his ma- be executed by any ordinary overjesty's justices of the peace, and seer of the poor."

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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 501.

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

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CURTIS.

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 (6), 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 appointed for holding such vestry, no vestry or meeting of the inha- by the publication of such notice bitants in vestry of or for any in the parish church or chapel on parish shall be holden until public some Sunday during or immedinotice shall have been given of ately after divine service, and by such vestry, and of the place and affixing the same fairly written or hour of holding the same, and the printed on the principal door of special purpose thereof, three days such church or chapel.” at the least before the day to be VOL. II.

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1835.

CANNELL

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as

of form: the accounts were in fact accounts of the receipts and disbursements of the plaintiff; it was part of his duty to keep those accounts, and to pass and verify them on oath (c), for, the statute requires him to execute all such of the duties of the office of the overseer of the poor should in the warrant for his appointment be expressed, in the like manner and as fully to all intents and purposes as the same might be executed by any ordinary overseer of the poor; and this was one of those duties. The offence imputed to the plaintiff is at all events an indictable offence, and therefore, the words are libellous per se, and it is perfectly immaterial whether they related to the plaintiff's character of assistant overseer or not-May v. Brown, 3 B. & C. 138; Lewis v. Walter, 3 B. & C. 138, n.

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.

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Suppose in that case the diploma bad been duly proved,
could it be contended that the plaintiff would be bound
to shew that all the preliminary steps necessary to the ob-
taining the diploma had been properly taken ?] Probably
not. Buller, J., in Pickford y. 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.W'ise,
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 war-
ranted. 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 dis-
tinct 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 plain-
tiff ; they contained all the receipts and disbursements con-
nected 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 exécute 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.

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