By the express words of sect. 5 of the act, no evidence can be given he action of any cause of action except such as is contained in the ice. Therefore, under a notice, mentioning imprisonment only, no lence of a battery can be given. Where the notice stated, that a pre, called a latitat, would be issued against the defendant, “for the imprisonment and sum of money," and the declaration was for ast, battery, and imprisonment, the notice was held good, being suffit to apprize the magistrate of the nature of the action about to be ight against him, so as to enable him to tender amends, and that the effect which the omission of any mention of battery in the notice d produce, would be to exclude evidence of a battery at the trial. bson v. Spearman, 3 B. & Ald. 493). here the notice was of an action of trespass, for seizing goods value 1 plaintiff's dwelling-house, it was held, that the plaintiff could not er for a larger sum, or any thing for the trespass in the dwelling 2. (Stringer v. Martyr, 6 Esp. R. 134). 10. Actions against. lowed of cause of action not stated in notice. No evidence al e notice must not mistake any material fact; and in an action Variance in facts. st two justices of the peace for illegally convicting the plaintiff, suing a warrant of distress against his goods, and under the same ng his house and taking his goods, the notice of action stated the nt to have been directed to A. B.; and when produced at the trial, found to have been directed to C. D., constable of H.; and it was hat the variance was fatal, although A. B. executed the warrant, ough it might have been unnecessary to state to whom the waras directed. (Aked v. Stocks and others, 1 M. & P. 346; 4 Bing. C. Sed quære, see 1 Chit. Col. Stat. 647). notice must positively shew that an action will be brought, and nerely a conditional notice. e trustees of a lighting and paving act were entitled to a certain of days' notice of action, for any thing done in pursuance of the otice that, unless the name of the party on whose information I taken certain steps were given up, proceedings would be taken them, was held bad, because it was conditional; and also, per , J., because it should have specified that the action would be ced at the expiration of the number of days mentioned in the rris v. Smith, 2 Per. & Dav. 353; 10 Ad. & El. 180, S. C.) ement on Notice, of Name, &c., of the Attorney, &c.]-Where plaining party sues by attorney or agent, he must, on the back tice of action, indorse the name of such attorney or agent, toith the place of his abode. A notice indorsed by the attorney laintiff is not bad by reason of its being signed by the plaintiff. v. Leach, 12 Law J., N. S., Mag. C. 4). The statute does not to be signed by any person. uld be noticed, that the act does not seem to require the place intiff's abode to be described in the notice, but only the abode torney, in order that the defendant may have an opportunity mising with or tendering amends to him (a). fficient to indorse the initial of the Christian name of the atith his surname and abode in words at length. (Mayhew v. Taunt, 63; 2 Marsh, 377, S. C.) And where one of the initials orney on the record had been omitted in the indorsement of his name being Thomas Adam Williams, and the indorseg" T. & W. A. Williams," this was held sufficient, for the ot to be construed with extreme rigour; and it does not re customs and excise acts 'Vol. II.) require the name f abode of the plaintiff, as he attorney, to be stated in "William Wood, of Ro therhithe, in the county of Surrey, Must shew an ac tion will be brought, and not be a merely conditional notice. notice of name, &c., of attorney. Indorsement on 10. Actions against. Attorney de facto. Where plaintiff an infant. Service of notice. Time for serving it. quire all the names of the attornies to be inserted, but merely the nane, and, therefore, does not seem to require the Christian name. (JamesTM, Swift, 4 B. & C. 681; 6 D. & R. 625; 2 C. & P. 237, S. C.) Describing the attorney, as of the place of his office, will sufe (Roberts v. Williams, 1 Gale, 315); and so will, it seems, a descript: of him by his place of actual residence. (Ib.; 4 Dowl. 483). In Cook v. Curry, (Durham Summer Assizes, 1789), Thomson, B., that the attorney's name and place of abode being in the body, insta on the back, of the notice, was sufficient, on the grounds of the being, that the justice might be enabled to tender amends to the . or his attorney; and see the case of R. v. Bigg, (3 P. Wms. 419 which a writing on the inside of a bank-note was holden to be prom described as an indorsement, even in an indictment for forgery. quære. (See Lovelace v. Curry, 7 T. R. 635). The attorney giving the notice may describe himself generally t town in which he resides, as of " Bolton-in-le-Moore." (Crock v. (m Durham Summer Assizes, 1789). But "London,” “Manchean, other such large town, generally, would not be sufficient; and whe attorney was described in the notice as of a place in London, whe s fact was in Westminster, it was holden to be fatal. (Stears v. Esp. 138). It has been held, that an attorney's describing hinst rally of "Birmingham" would do; but quare, whether that w suffice, that place having become so large. (See Osborne v. Gaji, ?! & P. 551). But if the description do not indicate the residence of the is insufficient. Where the indorsement was "given under Durham," without any other notification of residence, it w insufficient, (Taylor v. Fenwick, 7 T. R. 635, n.), being a ne tion, not of residence, but of the place of signature. A notice of action against a custom-house officer, "for brakes plaintiff's house in Cable Street, in the parish of G.," was a sufficient description of the plaintiff's place of abode, wi Geo. III. c. 70, s. 30, and 24 Geo. III. st. 2, c. 47, s. 35; for they may have removed since the trespass was committed, or he may ha two houses, and never resided in the locus in quo. (Williams 1. Bar 3 Taunt. 127. And see Wood v. Folliott, 3 B. & P. 552). In the case of Sabine v. Deburgh, (2 Camp. 196), the had indorsed and served the notice, was asked, on cross-ex Whether he had, at the time, taken out his certificate? And à ed, that he had ordered his clerk to take it out, and had pe money for that purpose; and Lord Ellenborough held, that it cient evidence of his being qualified to act as an attorney, E appear in that case that the witness had indorsed the notice, a torney, specifically, or merely as agent; and quare, whethe words of the statute are " attorney or agent," it is essential that actually be an attorney? (See I Chit. Coll. Stat. 648). Notice of action signed by "A. E. P., solicitor, acting on and as the prochein amy of the plaintiff," who was an infant. sufficient, where notice was required to be given "by the agent." (De Gondouin v. Lewis, 10 Ad. & Ell. 117, §. C..:A Ďav. 283). Service of Notice.]-The statute directs the notice to be r the justice, or left at the usual place of his abode. (See the ante, 1031, 1032). The service may be by the attorney's clerk. not be by the attorney's own hand. (Morgan v. Leach, 12 La S., Mag. C. 4). Time for serving the Notice.]-The day both of delivering and that of bringing the action must be excluded. (Young) 6 Mee. & W. 49; 8 Dowl. 212, S. C.) A notice, therefore, gir 26th of March, of an action commenced on the 26th of Ap icient. (Ib.; Webb v. Fairmann, 3 M. & W. 473; Reg. v. Shrope, (J. J.), 8 Ad. & Ell. 173; Blunt v. Heslop, 8 Ad. & Ell. 577. I see further, tit. "Time," Vol. VI.) The onus of proof of this is by the 3rd section (ante, 1032) imposed on plaintiff. he service of the notice is a condition precedent to the plaintiff's rering, and cannot be dispensed with. Therefore, where a magistrate sent to the plaintiff a paper writing, reciting the notice that had been ed on him, and tendering amends in respect of the matter contained ch notice, proof of such notice was still required. (Martins v. Upp1 Dowl. Ñ. S. 555, 11 Law J., N. S., Q. B., 291, S. C.) 10. Actions against. Proof of service. Waiver of. e for Notice.]—The attorney or agent is entitled to have the fee of Fee for notice. for the preparing and serving such notice, and no more, ante, 1032. tendering amends, this fee should be kept in view. 3. THE LIMITATION OF ACTIONS. tions. 24 Geo. II. c. 44, s. 8, enacts, "That no action shall be brought Limitation of act any justice of the peace, for anything done in the execution of ice, or against any constable, headborough, or other officer or perting as aforesaid, unless commenced within six calendar months he act committed." e statutes allow of a lesser time than the six months for bringaction. Thus the stat. 1 Will. IV. c. 64, s. 28, relative to the g of alehouses, limits the bringing of the action to three months, n the action must be brought within that period. : General limitation of actions under local and personal acts. ay be as well to notice the recent statute of 5 & 6 Vict. c. 97, by of which, after reciting that "divers acts commonly called public d personal, or local and personal acts, and divers other acts of a id personal nature, contain clauses limiting the time within ctions may be brought for anything done in pursuance of the respectively and that the periods of such limitations vary very nd it is expedient that there should be one period of limitation it is enacted, "That from and after the passing of this act, (10 1842), the period within which any action may be brought for g done under the authority or in pursuance of any such act or I be two years, or in case of continuing damage, then within after such damage shall have ceased; and that so much of any rovision, or enactment by which any other time or period of limiappointed or enacted, shall be and the same is hereby repealed." the meaning of the words in the 24 Geo. II., "for anything Construction of ee the cases, ante, 1033, and also tits. "Constable," "Appeal," act. x months are to be reckoned exclusive of the day of committing Where a party was, on the 14th of December, discharged from to which he had been improperly committed), and the writ isthe 14th of June, it was held, the action was commenced in Hardy v. Ryle, 9 B. & C. 603; 4 Man. & Ry. 295; Pellew v. of Wonford, 9 B. & C. 134; 4 Man. & Ry. 130. And see furTime," Vol. VI.) case of a continued imprisonment, the magistrate is liable to 1 an action for such part of the imprisonment, suffered under int, as within six calendar months before the action commenced im. (Massey v. Johnson, 12 East, 67; Pickersgill v. Palmer, P. 24). 4. But if the plaintiff give notice pending the imprisonis bound to proceed within six months after the notice; for, as bsequent cause of action, there is no notice. (Weston v. FourFast, 491). fendant wrongfully seized the plaintiff's goods, under an alress for church-rate, and gave notice, that, unless they were 10. Actions against. Tender of amends allowed. Plea of, Costs. Construction of act. redeemed within five days, they would be sold. In the meantime By the Brighton Improvement Act, actions for any injury de the commissioners under the act are to be brought within six after the thing done. The defendants, proceeding under that act a sewer, cracked the walls of the plaintiff's house; it was held,: plaintiff's right of action was limited to six months after the which the crack was occasioned, and did not continue for as lots as the crack continued. (Lloyd v. Wigney, 6 Bing. 439; 4 N. 222, S. C.) 4. TENDER OF AMENDS. By the stat. 24 Geo. II. c. 44, s. 2, it is enacted, "That it s may be lawful to and for such justice of the peace, at any time one calendar month after such notice given as aforesaid, (set 1031), to tender amends to the party complaining, or to his er be or attorney; and, in case the same is not accepted, to plead in bar to any action to be brought against him, grounded or process, together with the plea of not guilty, and any othe the leave of the Court; and if, upon issue joined thereon, find the amends so tendered to have been sufficient, then th a verdict for the defendant: and in such case, or in ca 3! shall become nonsuit, or shall discontinue his or her ad judgment shall be given for such defendant or defer murrer, such justice shall be entitled to the like costs as been entitled unto in case he had pleaded the general isste upon issue so joined the jury shall find that no amends or that the same were not sufficient, and also against the b defendants on such other plea or pleas, then they shall n for the plaintiff, and such damages as they shall think proget or she shall recover, together with his or her costs of suit." A tender of the 17. for the serving of the notice, as all first section of the 24 Geo. II. c. 44, ante, 1032, should be ke estimating the amends, if the tender be made after the se notice. A justice having pleaded a tender of amends, the plain rule for the defendant to bring the money into Court, and fra tiff to take the same upon discontinuing. (Lawrence v. C P. 24). By a local act, 6 Geo. IV. c. lxx, certain commissioner powered to cause any "present or future sewers, ditches, be opened, enlarged, altered, or cleansed ;" and it was en case any action should be brought against any person for y in pursuance of the act, or in relation to the matters there the plaintiff should not recover in any such action, if tender should have been made to him, &c. or his attorney, by ora the defendant, &c. before such action brought; and in tender should be made, that it should be lawful for the de leave of the Court, to pay money into Court; and if the appear to have been done in pursuance and under the auth act, and after sufficient satisfaction made or tendered as a that the jury should find for the defendant. The com whom the defendant was one, appointed a committee to ins ditch, with a view to widening the same, and to report th committee having reported thereon in favour of widening: commissioners appointed a second committee, of whom the defendant was one, to confer with a surveyor respecting the work, with power to two of them to act. The defendant being afterwards told by the clerk to the commissioners that he might proceed without further instructions from the commissioners, took the plaintiff's land for the purpose of widening the drain, without having given him notice or obtained his consent. The land was taken for the bona fide purpose of widening the drain. The defendant, before action, tendered 107. as amends, which the plaintiff refused to accept ; but no tender was pleaded, nor was the amount paid into Court. The jury found the trespass, and that the damage amounted to 57. It was held, first, that, although neither the defendant nor the commissioners were authorized to take plaintiff's land without his consent in writing, yet the defendant was entitled to the protection of the act. (Jones v. Gooday, 9 Mee. & W. 736; 1 Dowl., N. S., 914, S. C.) It was also held, in the same case, that the defendant was not bound to lead the tender, or pay the amount tendered into Court. Where the notice of action given to a justice for an act done by him n the execution of his office does not clearly and explicitly contain the ause of action, in pursuance of the act, in omitting the place where the et complained of was done, or the like, a tender of amends will not cure he defect. (Martins v. Upcher, ante, 1039). 5. PAYMENT OF MONEY INTO COURT. By stat. 24 Geo. II. c. 44, s. 4, it is enacted, "That, in case such astice shall neglect to tender any amends, or shall have tendered insufcient amends, before the action brought, it shall and may be lawful for im, by leave of the Court where such action shall depend, at any time efore issue joined, to pay into court such sum of money as he shall see t; whereupon such proceedings, orders, and judgments shall be had, aade, and given in and by such Court, as in other actions where the deendant is allowed to pay money into court." In an action against a magistrate for an assault and false imprisonnent, after the general issue pleaded, the Court will permit the defendnt to withdraw his plea, and pay money into court and plead de novo. Devaynes v. Boys, 7 Taunt. 33; 2 Marsh. 356, S. C.) And the Court vill permit this, though after issue joined and notice of trial given. Nestor v. Newcombe, 4 D. & R. 776; 3 B. & C. 159, S. C.) 6. VENUE. 10. Actions against. Justice may pay money into court, joined. before issue The 21 Jac. 1, c. 12, intituled, "An Act to enlarge and make perpetual Venue. he Act made for Case in pleading against troublesome and contentious Suits, rosecuted Against Justices of the Peace, Mayors, Constables, and certain ther his Majesty's Officers, for the lawful Execution of their Office, made in he seventh Year of his Majesty's most happy Reign," after reciting and naking perpetual 7 Jac. 1, c. 5, and also reciting, by s. 4, " And wheres, notwithstanding the said statute, the plaintiff is at liberty to lay his ction which he shall bring against any justice of peace or other officer n any foreign county, at his choice, which hath proved very inconveaient unto sundry of the officers and persons aforesaid, that have been impleaded by some contentious and troublesome persons in countries far remote from their places of habitations;" by s. 5, enacts, "That, if any action, bill, plaint, or suit upon the case, trespass, battery, or false imprisonment, shall be brought after the end of this present session of Parliament, against any justice of peace, mayor or bailiff of city or town corporate, headborough, port-reve, constable, tithingman, collector of subsidy or fifteens, churchwardens and persons called sworn men, executing the office of churchwarden or overseer of the poor, and their deputies, or any of them, or any other which in their aid and assistance, or by their commandment, shall do anything touching or concerning VOL. III. X X X Must be laid in county where fact was committed. |