1 1803. OSBORN บ. GOUGH. 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. (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, late 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 released, 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 be, 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 lay 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 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 hail 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 At the trial it was objected that the no- 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 1803. OSBORN 2. 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 was described as of the place where the business was carried on, and the others as "late" of the same place; yet the Court held the description sufficient. In that case the Court were equally called upon to take notice that Rotherhithe was a large place, as we are called upon to take notice that Birmingham is a large place. This notice has been compared to a notice of bail; but it differs in this, that a notice of bail is regulated by the peculiar practice of the Court; and being only a two days' notice, must necessarily be very accurate, or the time of inquiry will be elapsed before the bail are found. As the Defendant in this case does not appear to have been put under any difficulty in consequence of the generality of the notice, I think we ought not to grant a new trial. ROOKE J. I am of the same opinion. The statute only requires such information to be given as will enable a Defendant to tender amends; but it does not require such information as precludes the necessity of all enquiry. Suppose the street were stated, but not the number of the house; in that case some inquiry must be made. Primâ facie this notice appears to me to be sufficient; if the Defendant had experienced any difficulty from the size of the town, or the number of persons of the same name living in it, that fact might have been shewn. I agree with my Lord, that the notice required by the statute is not like a notice of bail; for unless the description in the latter be extremely accurate, the time for inquiry after the bail, which is very short, may be consumed before they are discovered. But in this case a whole month is given for tendering amends before the Plaintiff can commence his action. CHAMBRE J. I entirely agree with the rest of the Court. The case of bail does not appear to me to bear any analogy to the present. The persons respecting whom notices are to be given in cases of bail, are often in obscure situations, and the time allowed for finding them out, and inquiring into their character and sufficiency, is no more than two days. But in the case of notices under the statute a month is allowed for finding out the attorney before an action can be brought, and the persons to whom the notice relates are the officers of the public courts of justice. I agree, indeed, that the description ought not to be quite vague; perhaps such a place ought to be stated as may be sufficient for a venue. But where such a description as the present is given no difficulty can arise. The attorney might easily have been found by application to the post 1803. OBBORN v. GOUGH. 1803. OSBORN V. GOUGH. post-office. The true rule seems to me to be, that such reasonable notice ought to be given as will enable the Defendant to make a tender. Rule discharged. Nov. 28th. If the Defen dant pay money into court generally, upon a declaration containing a count on a policy of insurance, together with the money counts, and it appears that the Plantiff by his conduct previous to the trial induced MULLER V. HARTSHORNE. THIS was an action on a policy of assurance on goods. The declaration consisted of three counts; the first was on the policy, the second was on an adjustment, and the third for money had and received. The Defendant pleaded the general issue, and the cause coming on to be tried before Lord Alvanley Ch. J. at the Guildhall Sittings after last Michaelmas term, the defence relied upon and proved was fraud in effecting the policy, the Plaintiff, who resided at Hamburgh, and sent from thence the letter ordering the insurance, having been aware at the time he sent that letter, that the ship on board which the cargo insured had sailed, was lost; accordingly a verdict was found for the Defendant. But before the Defendant went into his case, the Plaintiff's counsel objected to any evidence being received which tended to avoid the contract, insisting that the fraud, and suf- Defendant who had paid the premium into court generally, without confining it to the money count, had thereby admitted the validity of the contract, and the Plaintiff's right to recover upon it, and had precluded himself from offering any evidence but such as went to reduce the value of the goods insured. His Lordship, however, overruled the objection. the Defendant to believe that the only point to be tried was a question of fered him to prepare his evidence accordingly, the Court will not allow the Plaintiff to object to the receipt of that evidence at money into A rule nisi having been obtained, calling on the Defendant to the trial, on the shew cause why a new trial should not be had; the Defendant's ground of the attorney in answer to that application, made an affidavit stating the contract having been admitted following circumstances: that the cause was tried ou admissions of by payment of all other material facts except the question of fraud; that the Plaintiff, in a bill filed in the Exchequer against the underwriters, for a commission to examine witnesses at Hamburgh, stated the precise point in issue, viz. the fraud in antedating the letter of orders; that on the 7th of February 1803, the Defendant, under a rule for he is notwith- withdrawing the plea of the general issue, pleading it de novo and standing enti court. In C. B. if the Plaintiff proceed to trial after money paid into court, tled to costs up to the time of the money being paid in.* If the rule of court for the examination of witnesses by commission express that the depositions of witnesses at Hamburgh and Lubeck are to be taken, and the commission is directed to persons at Hamburgh, the expences of bringing witnesses from Lubeck to Humburgh ought to be allowed upon taxation. *And see Twemlow v. Brock, 2 Taunt. 361. paying |