to pay F. T. the fum due to him, which was affirmed in B. R, Rex v..Limehoufe, Bott, pl. 100. 14. An order was made at the quarter feffions upon the present overfeers, directing them to pay to the late ones certain fums due upon their accounts, and another fum paid by one of them to an attorney for bufinefs by him done for the parish, but was quashed by the court of K. B. for infufficiency. Rex v. St. Peter's the Great, Chichester, fol. 33. 15. Overfeers cannot take credit for money paid as a falary to an affiftant overfeer, although fuch affiftant be appointed with fuch falary at a vefìry meeting. Rex v. Welch et al. Hil. 25 G. 3. 1 Bett by Conft, 277. pl. 304. Difobedience of Perfons made Overfeers, how punished. "R EFUSING to take upon one the office of overfeer is an indiЯable offence, and the penalty appointed by the ftatute is only for neglect of duty in the office. Rex v. Jones, 2 Seff. Ca. 187. Stra. 1146. 1 Bett by Conft, 298. pl. 347. 2. The parishioners, as well as overfeers who are appointed, may appeal to the feffions against fuch appointment, under 43 Eliz. c. 2. f. 6. Rex v. Forreft, 3 Term Rep. 38. 3. A pauper was kept with her two baftards in the poor houfe more than a year, and then allowed one fhilling a week towards the maintenance of herfelf and children. Afterwards the officers refused to continue the payment, but offered to take her and her children into the poor houfe. The feffions made an order on the officers to allow her a fhilling per week towards her maintenance and that of her children. The officers were indicted for refusing to obey; and a cafe being referved for the opinion of the judges, they determined that upon the words of 9 G. 2. c. 7. f. 4. and under the circumstances of the cafe, the defendants were empowered by law to refufe payment. Rex v. Carlife, cited and holden to be authentic per Lord Mansfield C. J. in Rex v. Winfhip and Greenwell, Cald. 72. 4. The court granted an information against an overfeer for removing a poor woman very fick and near her time into another parish, to avoid the expence which might be incurred by her delivery in his own. Rex v. Busby, Bott by Conft, 296. pl. 344. Vide alfo Rex v. Tarrant, lb. 301. pl. 351. 4 Burr. 2106. 5. So alfo for confpiring to marry a pauper. Rex v. Herbert, Stra. 757 6. The court refufed to quafh an indi&ment against overseers for not paying over money to their fucceffors. Rex v. King, Stra. 1208. Vide alfo Rex v. Pardy et al. 1 Bott by Conft, 300. pl. 350. 7. Motion to quafh an order of feizure for neglects with refpect to the office of everter, The order of feizure fets forth that the defendant defendant was guilty of eleven neglects of the office, and therefore orders 11. to be levied purfuant to the act. The court were of opinion that this was an order from the words of adjudication in it, and not a mere warrant of diftrefs, and therefore the court will take notice of it. It was infifted in fupport of the rule, that it did not appear that the defendant had notice of the order of appointment before the order of feizure was made; that five of the neglects were for abfence from monthly meetings, four for abfence from other meetings, one that his maid refufed to take the rate book, and the laft because he refused to take half a year's parish rate tendered to him. The court being of opinion that fome of the acts punished as neglects (among which were the refufal by his maid of the rate book and his refufal of the rate) not being fuch, and the whole be-, ing comprehended in one judgment, and a grofs fum directed to be' Jevied, quafhed the order; and per Probyn J. here are 11 penalties for 11 diftinct neglects of quite different natures, and they ought to be diftinctly levied for each offence. Rex v. Harman, 1 Bott by Const, 297. pl. 346. I. TRESP Protection in their Office. RESPASS against the overfeers of the poor for taking a gelding. Juftification, that by virtue of their office, and in purfuance of a justice's order, they levied fatisfaction for a poor rate, which was the trefpafs complained of. It was objected at the trial, that by 24 G. 2. c. 44. a demand fhould have been made of the perufal and copy of the juftice's warrant and fix days' neglect and refufal. On a motion for a new trial, the court of K. B. were of opinion that all officers acting under a justice's warrant are within the benefit of that ftatute. Jackson's cafe, Lofft, 249. S. C. Clayt. 45. 2. In an action of trefpafs against an overfeer of the poor, on account of fomething done by virtue of the 43 Eliz. c. 2. a verdict was found for the defendant; but the jury omitted to affefs the treble damages given by that ftatute. Denison J. If judgment had been entered up, the award of a writ of inquiry would have been too late, but as it has not, the court may award one. But a fuggeftion must be entered on the poftea, that the defendant was an overfter of the poor, and that the action was brought against him for a thing done by virtue of 43 Eliz. Bennet v. Hart, Sayer's Rep. 214. Say. Law of Dam. 245. S. C. For more concerning Overfeers, vide Orders of Removal, Poor, Rates, c. [G] .Vin.159. Dyer of Records, Deeds, &c. 1.OYER (B) Given, of what Thing. YER of deeds, &c. is demandable by the plaintiff or by the defendant. If the plaintiff in his declaration neceffarily make a profert in curia of any deed, writing, letters of administration, or the like, the defendant may pray oyer, and must have a copy thereof given to him, if demanded. R. T. 5 & 6 Geo. 2. (b). 2. Formerly the defendant was allowed oyer of the original writ, in order to demur or plead in abatement for any supposed infufficiency or variance. (2 Wilf. 97.) But this indulgence having been abufed and made an inftrument of delay, a rule was made, that a defendant be not allowed oyer of an original writ. R. T. 19 Geo. 3. Dougl. 227, 8. 6 Term Rep. 363. 3. It seems that oyer is not demandable of an act of parliament. 1 Dougl. 476. 4. Nor of a record, as letters patent enrolled in Chancery. Rex v. Amery, 1 Term Rep. 149. 5. If there are two counts for the fame debt on one policy of infurance, defendant cannot have oyer of two policies. Burr. 243. 6. Where an original leafe was loft, the court, on application, has ordered that a copy of the counterpart fhould be deemed good oyer. By Buller J. Read v. Brookman, 3 Term Rep. 160. Vin. 163. (D) Demanded. In what Cafes, it may or must be demanded, and how. 1. WHERE defendant is entitled to have oyer of a deed, plaintiff having made profert of it, it cannot be difpenfed with by the court, nor can he be compelled to plead without it, even though the deed be loft. Soreby v. Sparrow, 2 Stra. 1186, See 3 Term Rep. 153. 2. But where the deed is in the hands of a third perfon the court will oblige him to give oyer, and produce it. 2 Stra. 1198. 3. So likewife where the deed was tortiously in the hands of the defendant. Mathifon v. Atkifon, 3 Term Rep. 153. (note c.) (F) Demanded or given, at what Time. OYER must be demanded before rule to plead is out. Barnes, 241. 329. 268. 326. 2. And by the plaintiff oyer cannot be demanded in another term than that in which the plea is filed. Per Buller J. 1 Term Rep. 149. 3. There is no fettled time prefcribed for the plaintiff to give oyer; but the defendant shall in all cafes have the fame time to plead after oyer given as he had at the time of demanding it. Powel v. Gay, 2 Stra. 705. R. T. 5 & 6 Geo. 2. (b.) Webber v. Auftin, 8 Term Rep. 356. 4. So fhall the plaintiff where the defendant makes a profert. Imp. Prac. K. B. 243. 5. Oyer of a deed cannot, in ftrictness, be demanded but during the term it is pleaded. 1 Term Rep. 149. 6. And as a general imparlance is always to a fubfequent term, it follows, that oyer of a deed cannot be demanded after fuch imparlance. (But fee 2 Ld. Raym. 290.) A different doctrine is indeed laid down in one cafe, (12 Mod. 99. and fee 2 Show. 210.) which must be understood of a Special imparlance to another day in the fame term. Tidd's Prac. K. B. 501. 7. The demand of oyer is a kind of plea, and should regularly be made before the time for pleading is expired. Fowler v. Dyer, M. 20 Geo. 3. Tidd's Prac. 502. 8. If it be not made till after that time, the plaintiff may confider the demand as a nullity, and fign judgment. But though oyer be not, in ftrictnefs, demandable, yet if it be given, the party demanding has a right to make ufe of it. Jeffery v. White, 2 Dougl. 476. 9. The time allowed for the defendant to give oyer of a deed, c. to the plaintiff, is two days exclufive after it is demanded. 2 Term Rep. 40. If not given in that time, plaintiff may fign judgment. Barnes, 245. 10. If given, the plaintiff shall have the fame time to reply af ter oyer given him by the defendant as he had at the time of demanding it. R. T. 5 & 6 Geo. 2. (b). 11. Öyer demanded after rule to plead expired too late, no stay of judgment, though affidavit was for delay. Barnes, 241. 239. (G) Pleadings. 1.DEFENDANT may either fet forth the oyer in his plea or thall 16Vin. 164. 16 Vin. 166. fhall therefore be entitled to take the whole inftrument as part of his adverfary's plea. Jeffery v. White, 2 Dougl. 475 3. Peckham moved for a rule to fhew caufe why the defendant fhould not wave his demand of oyer, and plead. This was an action on a bond. The plaintiff had before filed a bill in the Exchequer for a difcovery, and the defendant in his answer admitted that he had executed fuch a bond, and that he had deftroyed it. Buller J. You have declared with a profert; and after that the court cannot fay the defendant shall not have oyer. You should have declared that the bond was deftroyed, and then it would have appeared on the record that the defendant was not entitled to oyer. All that we can do for you is to order that the production of a copy fhall be oyer. But the plaintiff having no copy of the bond, and only the fubftance of it being stated in the bill in the Exchequer, a rule was obtained to fhew caufe why the declaration fhould not be amended. Totty v. Nesbitt, Tr. 24 Geo. 3. B. R. 3 Term Rep. 153. (notes). 4. Defendant after oyer may plead the general issue, without taking notice of the oyer, and plaintiff cannot, when he makes up the iffue, infert the oyer at the head of the pleas; if he would avail himself of it, he must pray it to be enrolled at the head of his replication at his own expence. 2 Stra. 1241. Willes, 288. (n. c.) 5. InC. B. if oyer be prayed and not pleaded, plaintiff may infert it in the plea it is only where it is not prayed, that he is obliged to infert it in his replication. Barnes, 327. 6. If defendant, after having craved oyer of a deed, do not fet forth the whole deed, the plaintiff may fign judgment as for want of a plea, or the court will quafh the plea. Wallace v. Cumberland, 4 Term Rep. 370. oyer, muft 7. If defendant pleads variance between writ and count, without he fhall anfwer over. Vanderplank v. Banks, 2 Wilf. 85. 8. In order to bring error, the party who infifts upon oyer enter his prayer on record. This is in the nature of a plea; and the other fide may either counterplead or demur to it, and the court will give judgment thereon. 2 Ld. Raym. 969. But it is no error to grant oyer where it ought not to be. Ibid. 9. Where a deed is pleaded the plaintiff cannot reply new matter in the deed, but must set it out upon oyer. Stibbs v. Clough, I Stra. 226. 10. Plaintiff may fign judgment for non-payment for copy of indentures of which oyer was prayed. Barnes, 238. |