The opinion of the Court, after advisement, was drawn up by
Weston C. J.The defendant having procured the writ to be instituted, under which he defends, cannot thereby justify himself, unless he had sufficient authority to cause the action to be brought. And we are well satisfied he had no such authority. It is no part of the duty, nor is it within the power of an overseer of the poor, to bring such an action. Besides, the writ could not bo legally served, until the inhabitants of Rome, the plaintiffs, had given bond to prosecute their action, which was not done. The two overseers, who signed the bond, had no power thus to bind the town.
The writ, unlawfully sued out by the defendant, and irregularly served by his procurement, could afford him no protection. It appears to have been mere color, to aid the defendant in his fraudulent purpose of depriving the plaintiff of his property. The action was dropped, and the plaintiff was made to acquiesce in what was done, to pay the costs, and to give up his property, by the false representations of the defendant. Upon this developement, it would be a reproach to the law, to suffer the defendant to shield himself under an abuse of its process.
Exceptions overruled.