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1803.

TAYLOR

v.

HARRIS.

of the term, and as such is referable to the first day of the term. The Defendant, therefore, in this case, not having died until after the first day in term, the judgment is regular.

Lord ALVANLEY Ch. J. With respect to the case of Jacobs v. Miniconi, it is to be remembered, that the cause there might have been tried at any period after it had once been entered in the Judge's cause paper and nothing but the multiplicity of business prevented it from being tried on the first day of the Sittings. But the Sittings in term neither commence with the term, nor are any part of the term; they are appointed at the discretion of the Chief Justice; and if a cause, from never having been entered in the cause paper, could not possibly have been tried until after the death of the Defendant, a verdict ob tained after his death cannot stand. Indeed the postea is made up as of the very day on which the cause was tried, whereas in the case of trials after term the postea is made up as of the first day of the Sittings.

ROOKE and CHAMBRE Js. concurring,

Rule absolute.

Nov. 19th,

A lunatic may

by habeas corpus from St.

PILLOP V. SEXTON.

be brought up CLAYTON Serjt. having on a former day obtained an habeas corpus directed to the keeper of Saint Luke's Hospital, ordering him to bring up a lunatic for the purpose of being rendered in discharge of his bail, he on this day mentioned, that in obedience to the habeas corpus, the keeper of the hospital attended with the lunatic, and also the warden of the Fleet, to take him into custody.

Luke's Hospital to be surrendered in discharge of his

bail.

Accordingly the lunatic was brought into court, and surren2 dered into the custody of the warden of the Fleet. (a)

(a) Vide Steel v. Allan, ante, vol. 2. p. 362. and p. 437. with the cases there cited.

Nov. 26th.

In an affidavit

to hold to bail N

the addition of "manufacturer" to the Deponent's name is suffi

cient.

SMITH V. YOUNGER.

an affidavit to hold to bail, the Deponent described himself as James Smith of Wapping in the county of Middlesex, manufacturer.

Lens

Lens Serjt. now moved for a rule to shew cause why a common appearance should not be entered, on the ground of the insuffi*ciency of this description, contending that the addition of manufacturer was too vague, and would vitiate either an indictment or an original writ.

But The Court thought the addition sufficient in an affidavit to hold to bail.

Lens took nothing by his motion.

1803.

SMITH

บ.

YOUNGER.

*[ 551 ]

OSBORN V. GOUGH.

THIS
HIS was an action brought against the Defendant as a magi-
strate of the county of Stafford, for maliciously refusing to
accept sureties for the Defendant's appearance at the Quarter
Sessions to answer to a charge of a misdemeanor. At the trial
before Lawrence J. at the last Assizes for the county of Stafford,
a preliminary objection was taken to the notice of action deli-
vered to the Defendant under the 24 Geo. 2. c. 44. s. 1. as not
describing with sufficient particularity the residence of the at-
torney, which by that act is required to be indorsed on the no-
tice. The description was "William Spurrier of Birmingham
in the county of Warwick, attorney for the within-named Wil-
liam Osborn." The learned Judge refused to nonsuit the Plain-
tiff, and the cause having proceeded, a verdict was found for
the Plaintiff, with 5007. damages.

A rule nisi having been obtained upon a former day for setting aside this verdict on the ground of the objection taken at the trial,

Shepherd and Onslow Serjts, now shewed cause: and in the first place produced an affidavit, the object of which was to shew that the residence of Spurrier was well known both to the Defendant and his attorney before the commencement of the action. They then contended, that the notice was sufficiently particular according both to the spirit and letter of the act, the words of which are, on the back of which notice shall be indorsed the name of such "attorney or agent, together with the place of his abode." They admitted that Middlesex or London would be an insufficient description of the residence of an attorney, because under those names are comprised many districts; whereas iu Birmingham there was but one parish, although there were many streets; and they urged that

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* Vide Sabin v. De Burgh, 2 Campb. 196.

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1803.

OSBORN

V.

GOGH.

a letter addressed to him by the description in the notice would undoubtedly have found him. They observed, that a case of Fergusson v. Addington, which had been mentioned to Mr. *Justice Lawrence at the trial in support of the objection, had been *[552] incorrectly stated; for the notice to the Defendant there, who was sued as a magistrate, was said to have been indorsed with the names of the Plaintiffs' attornies, and "Essex-street," as the place of their residence, which Lord Kenyon held to be an insufficient notice; whereas in truth the notice was only indorsed with the names of the attornies, and no place of residence whatsoever was added. They relied on the case of Wood and Others v. Folliott (a), T. 26 Geo. S.

1

(a) Wood and Others v. Folliott, C. B.Tr. 1786.-Motion for a new trial in an action against officers of excise for seizing a vessel belonging to the Plaintiff. By 23 G. 3. c. 70. s. 30. no writ shall be sued against, nor a copy of any process served upon, any officer of excise or person acting by his order, or in his aid, for any thing done in execution of their office, until one calendar month next after notice in writing shall have been delivered to him, or left at the usual place of his abode, by the attorney or agent for the party who intends to sue, &c. in which shall be clearly and explicitly contained the cause of action, the name and place of abode of the person who is to bring such action, and the name and place of abode of the said attorney or agent.

The notice given in this case was as follows; "To Mr. Dan. Folliott, commander of His Majesty's cutter Baracuta. You have lately seized and taken a certain sloop or vessel called the Antigua Packet, the property of Wm. Wood of Rotherhithe in the county of Surry, merchant, Alexander Wood late of the same place, mariner, and Osborn Deverson, lute of the same place, mariner, together with her cargo, &c.

"Donne and Cox, Furnival's Inn, at"torney for the said W. W., A. W. "and O. D."

This cause was tried at the last Spring Assizes, at Launceston, before Mr. Baron Hotham, who was of opinion that the notice was insufficient.

Mr. Serjt. Rooke, in support of the nonsuit, said, that this was a joint action' by several, and one only is described at all. The reason of requiring a notice is, that Defendant may have an opportunity of tendering amends. If any one had re"leased, it would have done. The notice here is insufficient as to any of the Plain

tiffs. Though the Court should hold the description of the first to be sufficient, yet that of the others is clearly bad. The first is of Rotherhithe in the county of Surry. I have an affidavit, stating that there are 16 streets in Rotherhithe. It is no more than saying' of York. Notice of 'bail so described would be bad. As to the others," late of Rotherhithe" is no description at all of the party's place of abode. This last description is copied from the statute of additions, which requires the addition to be " of where they bo, or were resident." This case is not new. On 24 G. 2. c. 44. a notice to justices is required before any action can be brought against them. In Strickland v. Ward, at Winton, before Mr. J. Yates, the action was assault and false imprisonment, for committing a man returning to the parish from whence he had removed. The notice was of an action on the case, whereas the action brought was trespass vi et armis. Mr. J. Yates held the notice insufficient, and not conformable to the words of the statute. He would presume the Justice acted well till the contrary was proved; and he could not blame a justice who, knowing himself to be troubled with an unjust action, should Jay hold of this or any other trifling advantage to nonsuit a Plaintiff. He also cited Taylor and Fenwick, B.R.M. 1782. In the present case, the truth is, that one of the Plaintiffs lived at Newington, and the Defendant could not find the others.

Mr. Serjt. Grose, in support of the 'rule. He mentioned the case of Strickland and Ward, on which Lord Loughborough said, would it not have been enough to have said "an action,” and was not the rest surplusage? [Gould J. All that the statute says is-the cause of action.] Mr. Serjt. Grose. They

might

26 Geo. 3. in this court, and observed that the case of Taylor v. Fenwick (a), cited 7 T. R. 635., was perfectly distinguishable from the present, the notice in that case having been signed by the attorney thus, "Given under my hand at Durham," which conveyed no intelligence of his place of residence.

Williams and Lens Serjts. in support of the rule, observed, that the stat. 24 Geo. 2. c. 44. had been very rigidly construed by the courts, as appeared from the case of Lovelace v. Curry, 7 T. R. 631., where it was determined that it was not sufficient to state the cause of action in the notice without specifying what particular writ or process was intended to be sued out; that if a particular description of the attorney's residence was required by the act of parliament, it was no answer to the objection to say that his residence was known; that the town of Birmingham was a place of great magnitude, containing a variety of streets, and 60,000 inhabitants; and that the object of the statute was to enable the Defendant, without difficulty or loss of time, to find out the attorney and tender amends, and

might as well have objected to the number of the stair-case in Furnival's Inn not being mentioned, where the attorney lives.

Lord Loughborough Ch. J. I think the notice is sufficient, and that it answers all the purposes of the act. The intent of it was that the party should have an opportunity of tendering amends. This Is an action by partners. The description of the first is fully sufficient. A letter by the post would have found them; so would a porter. The case of bail is different, on account of the time the Plaintiff has to inquire. I do not think that either of the cases cited apply, supposing them to be well decided. As to the second objection, if the notice is not sufficient, a house of trade with partners abroad could bring no action.

Gould J. I am of the same opinion; it only requires reasonable information. The case of bail is the established practice of the Court. This act requires two different modes of information; the residence of the attorney and the Plaintiffs.

Heath J. I think the notice is sufficiently clear and explicit within the meaning of the act. Rule absolute.

(a) M. 23 Geo. 8. Taylor and Fenwick, B. R. tried at Durham.

This was an action against a justice of

the peace, founded on a warrant granted
by the Defendant on a conviction under
the militia act.

At the trial it was objected that the no-
tice was insufficient, for that the statute
of 24 G. 2. c. 44. s. 1. requires that the at-
torney or agent's name must be indorsed
on the back of it, together with the place
of his abode. The notice in the present
case concluded thus: "Given under my
hand at Durham, the 11th day of, &e.
Richard Ratcliffe, attorney for, &c.

Mr. Wallace said, the reason of the act requiring this was that the party might make a tender of amends. The act does not require to be signed by the attorney. If he had indorsed it "Richard Ratcliffe, attorney at Durham," it would have done. This was no more than saying he signed it at Durham, and was no communication of Durham being his place of abode. [The real fact was that he was a lodger at Durham.]

Lord Mansfield. The truth of it is this; in favour of justices of the peace the ligislature has thought fit to prescribe a precise form. Whether right or not it does not matter. This notice does not tell you the place of abode. In words he must tell you his place of his abode.

Willis, Ashhurst, and Buller, Justices, were of the same opinion. Nonsuitentered

that

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1803.

OSBORN

v.

GOUGH.

that it was therefore no sufficient answer to say, that the residence might be found according to the description and by a reference to the post-office. They contended, that although Rotherhithe was held to be a sufficient description in the case of Wood v. Folliott, it by no means followed that Birmingham, which is a much larger and more populous place, is sufficient in the present instance; besides which, some stress appeared to have been laid in that case on the circumstance of the place described being the situation of a house of trade, which is a matter of greater notoriety than the office of an attorney; and that the case of Taylor v. Fenwick was not cited as in point, but merely to shew how strict a construction had been put by the Courts upon notices under the 24 Geo. 2. c. 44.

Lord ALVANLEY Ch. J. The 24Geo. 2. was framed for the protection of magistrates against whom actions should be brought for any thing done by them under colour of their offices; but I have no difficulty in saying, that the present Defendant has had the protection which the statute was intended to afford to persons in his situation; for the notice which has been given would certainly have enabled him to avail himself of all the benefits conferred by the act. The act certainly requires not only that the name of the Plaintiff's attorney, but the place of his abode should be indorsed on the notice. Here it is objected that the words "of Birmingham" are not a sufficient description of the attorney's place of abode, on account of the extent of the town of Birmingham. The interpretation which I put upon the statute is this, that if the place indorsed upon the notice be the true place of the attorney's abode, it lies on the Defendant to shew that such description has not afforded him the opportunity of taking advantage of the act of parliament. In this case no evidence has been offered to shew that Wm. Spurrier could not have been found, if reasonable diligence had been used. It is admitted that the case of Taylor v. Fenwick did not decide the point now in dispute; for the objection there was not that the place of abode was insufficiently described, but that nothing was stated but merely the place at which the notice was signed. The other two cases appear to me to be in favour of the Plaintiff. That of Wood v. Folliott is extremely strong. The excise laws require that the place of abode both of the Plaintiff and his attorney shall be stated in the notice; and the Plaintiffs in that case being three partners, one of them

was

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