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upon request Shate, and 2s. Camp-duties,
So, by the st. 8 Geo. 2. 16. no action shall be brought, unless before commencement the party before the chief clerk, or secondary, (o) or filazer of the county, or clerk of the pleas of the court where the action is brought, or sheriff of the county, give bond of 1001. penalty with two. sureties to the high constable (p) of the hundred, with condition to pay costs if the plaintiff be nonsuit, discontinue, have a verdict or judgment on demurrer against him.
Which bond shall be certified by such chief clerk, &c. to the chief clerk or secondary in B. R. or filazer of the county in C. B. or to the clerk of the pleas or his deputy in the exchequer, before process shall issue in such suit.
None shall take for such bond more than 5s. besides stamp-duties, nor more than 2s. 6d. for making such certificate, and 2s. 6d. for filing it; and the chief clerk, &c. upon request shall deliver it over to the high constable gratis.
So, though it lies since the st. of Winton, though the robbery was on a Sunday. R. 1 Brownl. 156. Per 3 J. Mont. cont. 2 Rol. 59. 2 Cro. 496.
Yet, by the st. 29 Car. 2. 7. if any, who shall travel on the Lord's day, shall be then robbed, no hundred shall be answerable for it, but the person robbed shall be barred from bringing any action for the said robbery.
But if a man be robbed in going in his coach to church he shall have an action against the hundred; for that is not travelling within the intent of the st. 29 Car. 2. R. in C. B. 17 Geo. inter Tashmaker and Hundred of Edmonton. Comyns's Rep. 345.)
As to the proceeding, declaration, plea, &c. in an action upon the st. of Winton, vide in Pleader, (2 S 1, &c.)
(C 5.) How the charge upon the hundred shall be levied.
If there be judgment against the hundred, it may be levied against the inhabitants of the same hundred by fieri facias.
So it may be levied upon any one, who has lands in his possession within the hundred, though he has no house, nor lodging there; for he is an inhabitant. R. 2 Sand. 423.
Upon a lessee, or purchaser after the robbery committed. R. Noy, 155.
So it may be levied upon one or two of the inhabitants.
But if a man come to inhabit in an hundred after a robbery done, he shall not be charged. R. Hutt. 125. Cont. per Barckley, Mar. pl. 28.
So, if the whole debt be levied upon one or two of the hundred, by the st. 27 El. 13. on complaint to two justices of peace of the county
an actiof the st. 29. nton. Colaration, ple)
justice of peace, or annex any 'precise meaning as to distance. Esp. P. A. 193. – 3. For where the robbery was committed twenty miles from the place where the justice lived, and it was proved, that there were many justices of peace lived nearer; Abney J. held it to be sufficient, saying, that the act in that respect was merely directory. B. N. P. 186.
(o) Where the bond was set out, as given before J. S. secondary to G. W., chief clerk to enroll pleas, it was held to be a good bond within the statute, though the word 'secondary' only be used therein. Andr. 115. C.T. H. 409.
(p) It is sufficient to say, that the bond was given to J. H. high constable, without averring that there was but one. Andr. 115. C. T. H. 409.
(quorum unus) in or near the hundred, they may assess rateably all the towns, &c. within the same hundred, or in the liberties within the same, for the relief of him against whom the plaintiff took execution ; and the constable of each town, &c. may rateably assess the said sum on every inhabitant, and if he refuse to pay, levy by it distress and sale, &c.
And by the same stat, the hundred, where default of fresh suit on hue and cry was made, shall answer half the damages recovered against the hundred in which the robbery was committed, to be recovered by debt, &c. at the suit of the clerk of the peace.
By the st. 8 Geo. 2. 16. after judgment against the hundred, no process shall be served on the high constable or any inhabitant, but the sheriff (9) on receipt of the writ of execution (r) shall shew it gratis to two justices of the peace, in or near the hundred, who shall speedily cause an assessment to be levied (s) pursuant to the st. 27 El. 13. and also for the necessary expenses of the high constable above the costs and damages recovered, of which, on notice from the two justices, he shall give an account, and proof on oath to their satisfaction, having first caused his attorney's bill to be taxed.
The sheriff shall pay the money levied to the parties without fee, and indorse the day of receiving the writ of execution, and not to be called upon for a return till sixty days after. (t)
And the like assessment shall be in case the plaintiff be nonsuit, discontinue, or have a verdict or judgment on demurrer against him, if by insolvency of the plaintiff or his sureties, he cannot be reimbursed on the bond of 100l. penalty; and the money levied shall be paid to the justices for the high constable in ten days after it is levied. (u)
And the justices may limit a time not exceeding thirty days for levy
(g) After the sheriff has handed over the writ of execution, under the statute of hue and cry, 8 G. 2. c. 16. or 19 G.2. c. 34., he has no farther duty to perform, except to return what he has done. 13 East. 544.
(r) Though damages recovered against the hundred, under the riot act, are to be levied, not by a writ of execution, but by an order of justices; it seems that the writ should still issue as a foundation for the order. 5 T. R. 341.
(s) 1. An order of justices to levy damages recovered on the riot act against the hundred, directing them to be paid to a banker, subject to their farther order, instead of the plaintiff, pursuant to the statute, is bad. 5 T.R. 341.- 2. It seems that an order directing damages recovered under the riot act against the hundred, to be levied on the inhabitants of districts and parishes,' instead of ' towns, parishes, villages, and hamlets,' is bad. 5T. R. 341.
(6) By st. 22 G. 2 c. 46, S. 4. No writ of execution against the inhabitants of any hundred, on any judgment obtained by virtue of any act of parliament, shall be levied on any particular inhabitant of such hundred; but the sheriff shall, on receipt of any such writ, cause the same to be produced to two justices of the peace as is directed by 8G. 2. c. 16. 8. 4., and thereupon the said justices shall, as is directed by the said act, cause a taxation to made and collected for paying the costs and damages recovered by the plaintiff, and all such necessary expenses as any inhabitant of such hundred shall have been at, in defending such action; the same being first proved on oath, and the attorney's bill being first taxed, and the sum so collected shall, within the time by the said act limited, be paid to the sheriff, and by him paid over to the persons entitled to the same, without deduction or fee.
(u) As the statute of Winton incorporates the hundred so as to subject them to be sued, it, by consequence, gives them the capacities attaching upon the character of defendants; and they may, therefore, sue the plaintiff for the costs of a nonsuit; may bring a scire facias, on action of debt upon the judgment; or may proceed against the sheriff for an escape. Fitzgib. 296.
ing such assessment; and the officer appointed refusing or neglecting to levy and pay the money, &c. in such time forfeits double the sum. (x)
(31. By 1 G. 1. st. 2. c. 5. S. 4. commonly called the riot act, it is enacted, that if any persons unlawfully, riotously, and tumultuously assembled together, to the disturbance of the public peace, shall unlawfully and with force demolish or pull down, or begin to demolish or pull down, any church or chapel, or any building for religious worship certified and registered according to the statute 1 W. & M. Sess. 1. c. 18. or any dwelling house, barn, stable, or other outhouse, that then every such demolishing, or pulling down, or beginning to demolish or pull down, shall be adjudged felony without benefit of clergy.- 2. And by s. 6. it is enacted, that if any such church or chapel, or any such building for religious worship, or any such dwellinghouse, barn, or other outhouse, shall be demolished or pulled down wholly, or in part, by any persons so unlawfully, riotously and tumultuously assembled, that then, in case such church, chapel, building for religious worship, dwelling house, barn, stable, or outhouse, shall be out of any city or town, that is either a county of itself, or is not within any hundred, that then the inhabitants of the hundred in which such damage shall be done, shall be liable to yield damages to the person or persons injured and damnified by such demolishing or pulling down wholly or in part; and such damages shall and may be recovered by action to be brought in any of his majesty's courts of record at Westminster, by the person or persons damnified thereby, against any two or more of the inhabitants of such hundred, such action for damages to any church or chapel to be brought in the name of the rector, vicar, or curate of such church or chapel that shall be so damnified, in trust for applying the damages to be recovered in rebuilding and repairing such church or chapel; and that judgment being given for the plaintiff in such action, the damages so to be recovered shall be raised and levied on the inhabitants of such hundred, and paid to such plaintiff in such manner and form, and by such ways and means, as are provided by the st. 27 Eliz, for reimbursing the person or persons on whom any money recovered against any hundred by any party robbed, shall be levied: and in case any such church, chapel, building for religious worship, dwelling house, barn, stable, or outhouse so damnified, shall be in any city or town, that is either a county of itself, or is not within any hundred, then the action is to be brought against two or more inhabitants of such city or town. - 3. This statute, so far as it respects the action against the hundred by the party injured, is held to be a remedial law, and ought to receive a liberal construction; and, therefore, although the words of the statute are any dwelling-house, barn, stable, or other outhouse, if the persons riotously assembled, demolish, and pull down a dwelling-house, and at the same time destroy the goods and furniture in the house, although such goods and furniture were not destroyed by means of the pulling down of the house, the hundred is liable to yield damages for the destruction of the furniture, as well as of the house; for the destruction of the furniture and the demolition of the dwelling-house is one and the same act committed at one and the same time. Indeed if the destruction of the furniture be a separate act, it is not a felony, and the hundred is not liable, but where it is part of the same transaction, the hundred is chargeable to yield damages for the destruction of both house and furniture. At the common law, antecedent to this statute, to demolish a house and furniture was a mere civil trespass, for which the owner might bring an action of trespass against the wrong-doers, and recover damages against them for the whole loss he sustained, as well by the destruction of the furniture, as of the house; but this statute has turned the trespass into a felony; and it being merged in the felony, the party injured was of course deprived of his civil remedy against the trespassers until their conviction or acquittal, and therefore the statute has substituted the action against the hundred in lieu of it, and put the party injured in the same state as he was before. Cowp. 485. Dougl. 699. 2 Saund. 377. n. - 4. To support this action, it is not necessary to prove that twelve rioters were assembled at the time of the demolition of a dwelling-house, &c., for though in the first and third sections of the act, the number twelve is particularly mentioned as descriptive of the offence thereby created; yet it is omitted in the fourth section which makes it felony riotously to demolish any dwelling house, &c.; and also in the sixth section, which gives the remedy against the hundred; which latter section being also a remedial law, makes the consideration of the numbers assembled less important. 5 T. R. 14. 5. The action may be brought by a trustee in whom the legal estate is vested for existing purposes. Ibid. - 6. And even as it seems, by a bare trustee. Ibid. -7. The de
molishing molishing and pulling down of a dwelling house, &c., or a part of it must amount to a felony within this act, in order to make the hundred liable to an action at the suit of the party injured for the damage done to his house. Therefore where a large moh collected in a town, where there was a general illumination, broke the windows of the plaintiffs' house with stones, &c. and also the stanchions of the windows, the uprights of the sashes, and also the window shutters on the inside; it was held, that the hundred was not liable to an action for this damage done to the house; because it was not a beginning to demolish or pull down within the meaning of the fourth section of the act; and the action is not maintainable against the hundred unless the rioters are guilty of felony. 7 T.R. 496.-8. But where upwards of an hundred persons assembled together, came to the plaintiffs' house, who was a baker, and asked if he had any flour, and being answered in the affirmative, they said that they would have it at 28. a stone, it being then worth about 58.; the plaintiff said that he could not afford to sell it at that price; but they insisted upon having it; and he, not able to resist, began to measure it out in small quantities; whereupon the rioters began to break the windows of the bake-house, and the dwelling-house adjoining thereto, and broke the glass of three windows, and also the shutters; besides which, they broke open a warehouse belonging to the plaintiff, situate lower down in the same street on the opposite side of the way, in which there was flour; there however they only burst open the lock, and threw about three bags of flour worth 151. into the street, from whence it was carried away by some of the mob; and they took about ten stone out of the bake-house, which was sold at the price named by themselves; they also took away some malt, and other things : The learned judge told the jury, that there was no doubt of the unlawfulness of the assembly; and as to their beginning to demolish or pull down the dwelling-house, that the glasses of the windows, and the shutters, if fixed, were part of the dwelling-house; nevertheless if they were satisfied that the mob meant to stop there and proceed no further, it might be too much to say, that it was a beginning to demolish, &c. within the riot act; but if they thought, that the mob came with an intention to proceed to further acts of demolition, if they could not otherwise effect their purpose, then it was a beginning to demolish; whereupon the jury found for the plaintiff to the amount of all the damage proved. On a motion for a new trial the court of K. B. held, that the damage done to the warehouse on the opposite side of the street was an entire distinct act, not consequential to bursting open the lock; and it would be carrying the construction of the statute too far to say, that a bursting open of a lock upon such an occasion, was a beginning to demolish the house; that in the case cited, the damage to the garden was immediately consequential to pulling down part of the house, and happened in the act of pulling it down. With respect to the dwelling-house and bakehouse adjoining, the case was properly left to the jury to consider, quo animo the windows and shutters were broken ; but that the four taken out of the bakehouse, which was compelled by the mob to be sold, was not a damage which could be recovered by the plaintiff against the hundred. Upon which the plaintiff consented to take his verdict only for the damages done to the house by breaking the windows. 1 East, 615. 2 Saund. 378. n.-9. So where a mob consisting of more than two hundred persons came in the morning to the plaintiff's house at S., who was a flour seller and grocer; and after beating him, and threatening to break the windows, and pull the house down, they actually broke the windows of the house and kitchen, cut the iron and stanchions, and broke the window-shutters; they also pulled down a lean-to, or little out-house, and tore off the roof of it; the latter was so placed, that when pulled down there was left an opening outwards from the upper chamber of the house, which had communicated as a door-way into the upper part of the lean-to; out of the lumber-room with which this was connected, the mob took a quantity of four; some of it they sold one amongst another, against the plaintiff's consent, at their own price (scarcely half the value), which they paid to the plaintiff'; some was stolen; and some was thrown about and wasted; in all more than two hundred stone: it was objected that the plaintiff was not entitled to recover for any part of the flour which was taken and sold by the mob, but only for the damage done to the house and lean-to, and the flour spoiled in so doing : the jury, however, under the judge's direction, found a verdict for the plaintiff for the several amounts of the damages sustained by him in each respect: but the court of K. B. was of opinion, that the hundred were only liable for the damage done to the house and lean-to, and for such of the flour as was spoiled or destroyed in doing that damage; but that as to the flour stolen, or, which in effect was the same thing, taken away and sold without the consent of the plaintiff, that being a
distinct felony in the offenders, an offence which existed before the passing of the riot - act, and not an injury done to the party by beginning to demolish or pull down the - house, it was not within the fourth clause of the act, and consequently not within the
clause giving damages against the hundred. i East, 636. 2 Saund. 378. n. -- 10. The breaking of inside window shutters, a window sill, and the wood of the fanlight, has been held sufficient evidence of a beginning to pull down, if the mob are interrupted and dispersed, while committing these acts of violence, by an alarm of the approach of the military. 4 Camp. 221. – 11. And it was held, that in order to render the hundred liable for partial damage done to a house, the rioters must have begun to demolish it with the intention of actually demolishing it, if not interrupted. 4 Camp. 377. – 12. And in an action against the hundred, for demolishing and taking goods, it was held, that the plaintiffmight recover the value of the goods, as guns, gunstocks, &c. used and destroyed in the very act of demolition, but not of such as are feloniously carried away at the time, for that is a distinct felony. i B. & A. 487. – 13. But by a recent statute, 57 G. 3. c. 19. s. 38., it is enacted, that in every case where any house, shop, or other building whatever, or any part thereof, shall be destroyed, or shall be in any manner damaged, or injured, or where any fixtures thereto attached, or any furniture, goods, or commodities whatever which shall be therein, shall be destroyed, taken away, or damaged, by the act or acts of any riotous or tumultuous assembly of persons, or by the act or acts of any person or persons engaged in, or making part of such riotous or tumultuous assembly, the inhabitants of the city, &c. in which such house, &c. shall be situate, if such city, &c. be a county of itself, or is not within any hundred, or otherwise, the inhabitants of the hundred, in which such damage shall be done, shall yield a compensation to the person damnified, to be recovered by the same means, and under the same provisions, as are provided by i G. 1. c. 5. with respect to persons injured and damnified by the demolishing or pulling down of any dwelling-house, by persons unlawfully, riotously, and tumultuously assembled. - 14. The plaintiff is entitled to his costs in this action, as well as in the action against the hundred, on the statute of hue and cry. 2 Wils. 91. Cowp. 485. - 15. As to the time within which the action is to be brought; there is no case wherein this point has been decided; but it should seem that the eighth section of the act, which limits criminal prosecutions for the felony created by it to be commenced within twelve months after the offence committed, would be held to extend also to actions brought upon it. 2 Saund. 378. n.
1. By the statute 9 G. 1. 6. 22, s. 1. commonly called the black act, it is enacted, that if any person or persons shall unlawfully and maliciously kill, maim or wound any cattle, or cut down or otherwise destroy any trees planted in any avenue, or growing in any garden, orchard, or plantation, for ornament, shelter, or profit, or shall set fire to any house, barn, or outhouse, or to any hovel, cock, mow, or stack of corn, straw, hay, or wood, every person so offending shall be adjudged guilty of felony without benefit of clergy.-2. And by the seventh section of the same act, it is enacted, that the inhabitants of every hundred shall make full satisfaction and amends to all and every the person and persons, their executors and administrators, for the damages they shall haye sustained, or suffered by the killing or maiming of any cattle, cutting down, or destroying any trees, or setting fire to any house, barn, or outhouse, or hovel, cock, mow, or stack of corn, straw, hay, or wood, which shall be committed or done by any offender or offenders against this act; and that every person and persons who shall sustain damages by any of the offences last mentioned, shall be and are hereby enabled to sue for and recover such his or their damages, the sum to be recovered not exceeding the sum of 2001. against the inhabitants of the said hundred, who by this act shall be made liable to answer all or any part thereof; and that if such person or persons shall recover in such action, and sue execution against any of such inhabitants, all other the inhabitants of the hundred who by this act shall be inade liable to all or any part of the said damage, shall be rateably and proportionably taxed for and towards an equal contribution for the relief of such inhabitants against whom such execution shall be had and levied, which tax shall be made, levied and raised, by such ways and means, and in such manner and form, as is prescribed by the 27 Eliz. 3. And by s. 8. provided nevertheless, that no person or persons shall be enabled to recover any damages by virtue of this act, unless he or they by, themselves or their servants, within two days after such damage or injury done him or them by any such offender or offenders as aforesaid, shall give notice of such offence done and committed unto some of the inhabitants of some town, village, or hamlet, near unto the place where any such fact shall be committed, and shall within four days after such notice give in his, her, or their examination on oath, or the examination upon oath of his, her, or their servant or servants, that had the care of his or their houses, outhouses, corn, hay, straw or wood, before any justice of the peace of the county, liberty, or division where such fact shall be committed, inhabiting within the said hundred where the said fact shall happen to be committed, or near unto the same, whether he or they do know the person or persons that committed such fact, or