John Day against King, Frere, Finch, Purchas, and Cotton
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 1836 |
| Date | 08 June 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 1201
IN THE COURT OF KING'S BENCH.
S. C. 6 N. & M. 845; 2 H. & W. 178; 5 L. J. M. C. 130.
john day against king, frere, finch, purchas, and cotton. Wednesday, June 8th, 1836. An order of justices upon a party, requiring him to pay money to a person claiming it as member of a friendly society (under stat. 49 G-. 3, c. 125, s. 3), must find in direct terms that the person applying is a member, that he is entitled to the money, and that the party against whom the application is made is, at the time, an officer of the society. An order of justices served upon D. does not find him to be an officer, by being directed to "D. steward of," &c. Nor by reciting a complaint upon oath which states him to be so. An order does not shew the applicant to be a member, and entitled to the money, by reciting that he made complaint upon oath, in which complaint he stated himself to be a member, and the money to be due. Though the order afterwards direct the money "so due and owing as aforesaid" to be paid. A warrant of distress, founded upon and reciting such order, and omitting to find as above, is bad; and, if goods be taken under such warrant, the justices are liable in trespass. [S. C. 6 N. & M. 845; 2 H. & W. 178; 5 L. J. M. C. 130.] Trespass. The declaration stated that the defendants, on, &c., unlawfully issued and made a certain warrant, whereby, in default of such distress as therein mentioned being found, they commanded that there should be levied 81. 4s., and 7s. costs, by distress and sale of the goods of the plaintiff and one Matthew [360] Diver, together with certain other coats and charges; and that the defendants on the same day, &c., under colour and pretence of the said warrant, with force, &c., seized and took certain 1202 DAY V. KING 6AD.&E. 861. goods and chattels, to wit, &c., of a large value, to wit, &e., and kept, &c., until the plaintiff, to regain the possession of the same, was forced to, and did, pay, &c. Plea, not guilty. On the trial before Lord Abinger C.B., at the Cambridge Spring Assizes, 1835, it appeared that the defendants, being magistrates of the town of Cambridge, on the fourth of April 1834, made the following order under stat. 49 G. 3, c. 125 (a):- " Town of Cambridge, to wit. To John Day and Matthew Diver, stewards of the friendly society called [361] the Original Friendly Society, held at," &c., "in the town of Cambridge aforesaid. "Whereas John Stearn of," &c., "in the said town, tailor, on the 18th day of February last, personally came before Thomas Coe, Esq., Mayor, and Benjamin Cotton, Esq., two of the justices assigned," &c., " and made an information and complaint upon oath before the said T. C. and B. C., Esqrs., so being such justices (and which oath the said T. C. and B. C. did then atid there administer to him the said J. S.), by which said information and complaint the said J. S., on his oath aforesaid, deposed and said that he the said J. S. was a member of a certain friendly society called the Original Friendly...
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