NOTICES OF ACTION. To C. D. Esquire, one of his Majesty's Justices (a). I, A. B. of—————, in the county of—, Esquire (c), do hereby, ac- Notice of action by the cording to the form of the statute in such case made and provided (d), party to a jusgive you notice, That I shall, by my attorney, Mr. E. F. of, in tice for false the county of, at or soon after the expiration of one calendar month imprisonment from the time of your being served with this notice, cause a Writ of Latitat (e) (or, "a precept, called a Bill of Middlesex," or, if the action is to be in C. P. "Capias ad respondendum," or, if in the Exchequer, "Quo minus,") to be sued out of his Majesty's Court of King's Bench, (or, ❝ Common Pleas," or, "Exchequer,") at Westminster, against you at my suit, and proceed thereupon according to law: For that (ƒ) · i (a) The cases as to notices of action are collected in Tidd's Prac. 4th edit. 28 to 34. The statute 24 Geo. 2. c. 44. s. 1. requires a notice to a justice of the peace. See the Precedents in Tidd's Forms, 12 to 16. I have framed this as more useful in practice than the Forms, which commence "You having," &c. (b) It is usual, at the head of the notice, to state the character in which the party, about to be sued, acted; and some forms state the colour or pretence under which he acted. (See Tidd's Forms, 12, 13, 14. 2 Campb. Cases, N. P. 196;) but the latter seems unnecessary, and if misstated, may be fatal. See 1 Taunton's Rep. 383. (c) A notice describing the intended plaintiff as "of Rotherhithe, in the county of Surrey, merchant," was deemed sufficient. 3. Bos. & Pul. 552. n. The statute does not seem to require the notice to state the abode of the intended plaintiff. (d) See the statute 24 Geo. 2, c. 44. (e) The statute expressly requires that the intended writ or process shall be named, 24 Geo. 2. c. 44. s. 1.7 T. R. 631.-2 Campb. Cases, N. P. 198. VOL. II. (f) The statute 24 Geo. 2. c. 44. s. 1. enacts, "in which notice shall be clearly and explicitly contained the cause of action which such party hath, or claimeth to have against such justice of the peace." But the form of action need not be stated, 2 Campb. Ca. Ni. Pri. 196. If, however, it be stated, the plaintiff must declare accordingly. 7 T. R. 631. n. If any special damage has resulted from the injury, it must be stated. The cause of action may be stated precisely, as in a declaration in trespass: for which see the Precedents, post. and Tidd's Forms, 12 to 16. It is usual, as in the above precedent, to frame the notice, so that the subsequent declaration may precisely correspond with it. As in trespass, to the Person first stating the assault, battery, and false imprisonment specially, with all the circumstances and special damage : and secondly, a common count for false imprisonment or in trespass to Personal property, a count for seizing the ship, cart, &c. and detaining it, with the consequent damage, and a common count for seizing carrying away, and converting the same property; or in trespass to Real property, &c. & count A [2] you, the said C. D. on the day of, A. D. with force and arms, &c. caused an assault to be made on me the said A. B. to wit, at in the county of- .; and then and there caused me to be apprehended and seized and laid hold of, and to be forced and compelled to go from and out of a certain dwelling-house, situate and being at in the county of, into the public street there, and also to be then and there forced and compelled to go in, through and along divers public streets and places to a certain police-office, situate and being at in the county of, and to be unlawfully imprisoned, and kept and detained in prison, in a certain dark and unwholesome prison or place, called situate at without any reasonable or probable cause whatsoever, for a long space of time, to wit, for the space of hours then next following, contrary to the laws and customs of this realm, and against the will of me the said A. B., whereby I the said A. B. was then and there not only greatly hurt, bruised, and wounded, but was also thereby greatly exposed and injured in my credit and circumstances, to wit, at aforesaid, in the county aforeSecond count, said :————— — And also for that you the said C. D. on the day and year aforesaid, with force and arms, &c. caused an assault to be made upon me, the said A. B. to wit, at aforesaid, in the county aforesaid, and caused me to be then and there beat, ill-treated, and apprehended and imprisoned, and kept and detained in prison, without any reasonable or probable cause, for a long time to wit, for the space of hours then next following, contrary to the laws and customs of this realm, and against the will of me the said A. B. said A. B. did to my great damage, and the now king. Dated this [3] of day of And other wrongs to me the against the peace of our lord in the year of our Lord, in the county Yours, &c. A. B. of. in the parish of N. B. To be endorsed as follows: "E. F: of (g), in the county The like by an attorney for his client. (h). (Same Address as in the last Precedent.) I do hereby, as the attorney of and for A B. of, in the county of, duly authorised in that behalf, according to the form of the for breaking and entering the house, (g) The statute 24 Geo. 2. c. 44. at plaintiff." "E. F. of Birmingham, generally," was held sufficient, but " Durham,” was deemed insufficient. 3 Bos. & Pul. 551. 553. a.—7 Term Rep. 635.-2 Campb. Ca. N. P. 199. (h) This must be indorsed with the name and place of abode of the attorney concerned for the plaintiff, as in the last precedent. atatute in such case made and provided, give you notice, That the said A. B. will, at or soon after the expiration of one calendar month from the time of your being served with this notice, cause a writ of latitat to be sued out of his Majesty's Court of King's bench at Westminster, against you, at the suit of him the said A. B. and proceed thereupon according to law. For that, &c. (State the cause of action as in the last precedent, and conclude as folloris :) And other wrongs to the said A. B. did to his great damage and against the peace of our Lord the now king. Dated this in the year of our Lord, day of *To C. D. and É. F. Officers of his Majesty's The like to an Excise, (or, "Customs.") [The commencement and conclusion are the same as in the notices to a Justice of the Peace, ante 1 and 2; but as these officers themselves usually do the act complained of, there appears to be a small difference in describing the trespasses. The form is as follows:] day of, A. D. For that you, on the with force and arms, &c. unlawfully seized and took possession of a certain brig or vessel called, together with her tackle, apparel, furniture, and stores, of and belonging to me the said A. B. and being of great value, to wit, of the value of L.; and also seized, and took possession of, and carried away a large quantity, to wit, one hundred pounds weight of tea, belonging to me the said A. B. and being of great value, to wit, of the value of L.100, and kept and detained the said brig or vessel, and her tackle, apparel, furniture, and stores, and the said tea, from me the said A. B. for a long time, to wit, for the space of -days then next following, and until I the said A. B. in order to regain possession thereof, was forced and obliged to, and did pay to you a large sum of money, to wit, the sum of excise, or cus. tom-house officer, for seiz. ing and detaining a ship and goods (i). [4] And also for that you, Second count. on the day and year aforesaid, with force and arms, &c. unlawfully seized, took, and carried away, a certain other ship or vessel, and a certain other large quanity of tea of me the said A. B. of great value, to wit, of the value of L.- and converted and disposed thereof to your own use; and other wrongs, &c. [Conclude as in the preceding forms.]. (i) Observe the notes to the precedent, ante, page 1, 2. The. Statute 28 Geo. 3. c. 37. s. 25. regulates this notice. It does not seem to require the name of 4 [5] Affidavit to common cases (k). *AFFIDAVITS TO HOLD TO BAIL. In the King's Bench (1), (or “ Common Pleas," or "Exchequer.") A. B. of Cheapside, in the city of London, merchant (m), maketh hold to bail in oath, and saith, That C. D. is justly and truly indebted to this deponent, in the sum of L.100 (n), of lawful money of Great Britain, for "goods sold and delivered by this deponent to the said C. D. and at his request (o)." And this deponent further saith, that no ten der or offer (1) hath been made to pay the said sum of L.100, or any part [6] (¿) An affidavit to hold to bail is required by the 12 Geo. 1. c. 29. (amended by the 5, Geo. 2. c. 27, and made perpetual by the 21 Geo. 2. c. 3. and extended to inferior courts by the 19 Geo. 3. c. 70.) by which it is enact ed, "that in all cases where the plain"tiff's cause of action shall amount to "the sum of ten pounds or upwards, an "affidavit shall be made and filed, of "such cause of action." The law re. lating to affidavits to hold to bail is collected in Tidd's Prac. 3d edition, page 149 to 166-4th edition, page 153 to 165-Sellon's Prac. 104 to 115. Impey's Prac. K. B. 7th edition, 114 to 157. The precedents of affidavits will be found in. Tidd's Prac. Forms 2nd edit. 76 to 91, and in Impey's Prac. 7th edition, 146 to 157. Only one precedent is here given, which will suffice in the usual course of business; referring to the several indebitatus counts for the descriptions of the various debts. (1) It may be intituled in the court, in which it is intended to be used, 7 Term Rep. 451, but it must not be intituled in a cause, 7 Term Rep. 4541 Bos. & Pul. 36, 227. (n) The sum for which the defendant is to be arrested. It is better not to add, "and upwards." The plaintiff may recover more than he swears to, though he will not have the security of bail to.a greater extent. (o) This must depend on the nature of the debt, în each particular case. In Tidd's Forms, 2d edition, 76 to 91, a great variety of debts is described. The debt may be described, as in the following indebitatus counts, which are indexed at the head of this volume in the analytical table. See also the pleas and notices of Set-off, post. Care should be taken to swear to the description of debt which the plaintiff is certain of establishing on the trial, for, otherwise, the plaintiff may lose the security of bail, even after verdict, 2 Taunton's Rep. 107. As to the cer: tainty necessary in stating the debt, see Tidd's Prac. 1 vol. 156 to 165, 4th edition. (p) This form is required by the Bank Acts, 37 Geo. 3. c. 45 s. 9. 37 Geo. 3. c. 91. s. 8. 38 Geo. 3. c. 1. s.. 8. 43 Geo. 3. c. 18. A defect in form, (m) The true place of abode and ad- in this part of the affidavit is now aiddition of the deponent must be inserted by the last statute, but not a total ed. Rule Mic. T. 15 Car. 2.1 East's omission, 2 Smith's Rep. 156. therof, in any note, or notes, of the Governor and Company of the Bank "King's Bench Office," or, " A. B. ," as the case N, B. No title of the Court or Term is to Præcipe for be stated at the head of the Præcipe. London (8), (to wit.) If A. B. make you secure, &c. then put by gages and safe pledges, C. D. late of London, merchant (t), that he be before us (u), on the Morrow of All Souls (x), wheresoever we shall then be in England, to show, For that whereas, &c. [Here state the cause of action at length, precisely as in a Declaration, see 2 Saund. Rep. 209. a. n. 1. and after stating all the counts and "the breach, conclude as follows: To the damage of the said A. B. of L.it is said, &c. special original in assumpsit (r). (y), as Conclusion. (4) This is termed the Jurat. The affidavit may be sworn before a judge, or commissioner of the court, authorized to take affidavits, or before the officer who. issues the process, or his deputy. Tidd, 4th edit.154.-If made by several persons, their names must be written in the Jurat, 7 Term Rep. 82. It is sufficient in the Jurat, if it appear to have been sworn before E. F. a commissioner, &c. without adding “of the Court of King's Bench." 7 Term Rep 451. be a county palatine, or where an ori- (1) Or, Yeoman, &e. according to (u) Or, in the Common Pleas, "before our justices of the Bench at Westminster," omitting" wheresoever, &c." (x) Must be a general return day. (y) In the body of the declaration the sum may be laid larger than the 'real debt, but as a fine is paid to the King in proportion to the damages at the end of the præcipe, (see the Scale (r) Read the points as to the præcipe, of Fines, Impey Prac. 7 edition, 591,) ante, 1 vol. 245 to 248. (a) The venue in the action, or the plaintiff will lose his bail. It must not the damages in this place should only |