But in assumpsit against an excise officer to recover back duties paid to him, there must be notice of action given, pursuant to the statute; Or where an done an act really illegal, but under the notwithstanding which they seized the three carts. Afterwards, the matter being explained, they refused to deliver up the carts unless 21. 11s. was paid for their release; this sum was paid, and the present action brought to recover it back. It was adjudged that the money was clearly recoverable, as being obtained by extortion from the plaintiff'; and that though under the stat. 23 Geo. 3. c. 70. s. 32. the officer is entitled to a month's notice before an action can be brought against him, yet in this case he was not, for this action was for an act not done colore officii, and therefore notice was unnecessary; and Grose, J. was of opinion that the statute applies only to cases of trespass or tort, not to actions of assumpsit. 2. GREENWAY V. HURD. H. T. 1792. K. B. 4. T. R. 553. This was an action for money had and received, against the defendant, an excise officer, for the recovery of a sum of money paid by the plaintiff for duties on cotton, after the statute creating the The Court expressed an opinion imposition had been repealed. that the officer was entitled to notice, although the plaintiff sued in assumpsit, because the defendant acted as an officer of the excise when he received the money, and the plaintiff paid it to him in that character. There was, however, another point in the case, and it does not appear clearly on which the case was ultimately determined. 3. DANIEL V. WILSON. M. T. 1792. K. B. 5 T. R. 1. Action for an assault and battery. It appeared in evidence that excise officer has the defendant was an excise officer, and had, immediately before the assault, been engaged in pursuing and detecting smugglers; that the plaintiff passed the defendant, laden with something on his back, and bona fide suppo- on being interrogated by the defendant said that he had nothing sition that he to deliver, being only a fisherman; the defendant then, in endeawas bound to do vouring to ascertain whether the property he had with him was so in discharge exciseable, struck the plaintiff. It was objected, against the tenability of the action, that a notice had not been served, according to the 23 Geo. 3. c. 70. s. 30. but this was attempted to be answered by saying that the act had not been committed in execution of the defendant's office, which was necessary, in order to render a notice requisite. of his duty. Per Cur. The defendant acted in the supposed execution of his duty, and is clearly entitled to the protection afforded by the legislature, to persons in his situation. or against any person or persons acting by his or their order, and for any thing done in the execution, or by reason of that or any other act or acts of parliament then in force, or thereafter to be made, relating to the said revenues or either of them, until one calendar month next after notice in writing shall have been delivered to him or them, or left at the usual place of his or their abode by the attorney , or agent for the person or persons who intends or intend to sue out such writ or process as aforesaid, in which notice shall be clearly and explicitly contained the cause of action, the name and place of abode of the person or persons in whose name such action is intended to be brought, and the name and place of abode of the said attorney or agent, and that a fee of twenty shillings and no more shall be paid for the preparing and serving of every such notice. See also 23 Geo. 3. c. 70. s. 30. and 24 Geo. 3. sess. 2. c. 47. s. 85. 4. CLEMENTS AND WIFE V. KEEN. H. T. 1805. K. B. 2 Smiths. 220. In an action for an assault it was proved that the defendant was An extra man, not an excise officer, but one acting under the surveyor of excise, and not appointed by called an extra-man; and though not appointed by the board of excise, the Board of Excise, is entitled yet he received the same pay as an excise officer. It was also shown to the benefit of that the defendant in that capacity had had reason to suspect that this act, or at the plaintiff's wife had concealed some spirits about her person, least he is entiand in endeavouring to find it, he committed the act complained of. tled to it as a At the trial it was contended that, under 20 Geo. 3. c. 37. s. 23. person acting under an excise the defendant, acting as a person in pursuance of the excise laws, officer, if he be was entitled to notice of action. In this opinion the judge, before sent to make a whom the cause was tried, concurred; and the plaintiff was nonsuited. search, though On a motion to set the nonsuit aside it was urged, that the de- no regular offfendant, not being an excise officer, was not entitled to notice, cer be present. the words of the statute being, that "no action shall be brought against any excise officer or officers, or any person acting under him or them, unless," &c. That here neither the surveyor of excise, nor any other regular officer, being present when the search was made, the defendant could not be esteemed as acting in a capacity within the protective provisions of the statute. But the Court expressed a strong opinion against the plaintiffs, and observed, that whether he was an excise officer or not, he acted under the excise laws, and was entitled to notice of action, as prescribed by the statute.-Rule discharged. 5. UMPHELBY V. M'LEAN. M. T. 1817. K. B. 1 B. & A. 42. In an action of assumpsit, for money had and received, to recover But an action back from the defendants, collectors of taxes, the difference between the against colleclegal expense of a distress for arrears, and excessive charges made and tors of taxes to obtained by the defendants, it was submitted, that notice of action, recover back excessive charges pursuant to 43 Geo. 3. c. 99. ought to have been delivered prior to for a distress, unthe commencement of the suit; but to this objection it was stated, and der 43 Geo. 3. assented to by the Court, that the action contemplated by the legis- c. 99.* is not an lature is that species of civil remedy which is used to obtain a compen- action accruing sation for a tortious act committed, not to cases where the action is by reason of any thing done in instituted for omitting to do that which ought to have been done, pursuance of that i. e. return the money. The statute only applies to action of tort, act, and no prewhen the damages are uncertain and dependant upon the verdict; vious notice need not when a precise sum is demanded, founded upon a contract, and be given. for the non-payment of which no tender of amends could possibly be pleaded.-Rule to set aside verdict for plaintiff discharged. The 70th section enacts that if any action shall be brought against any person for any thing done in pursuance of that act, such action shall be commenced within six calendar months next after the fact committed; and no writ or process shall be sued out until one calendar month next after notice shall be given to the defendant; and the defendant may within the month tender amends, and may plead the same, if not accepted in bar of the action; and see the enactments in the 43 Geo. 3. c. 99. s. 70. that no action shall be commenced, for acts done in collecting the assessed taxes, until one calendar month next after notice in writing shall have been delivered to, and left at the usual place of abode of the party intended to be sued; and see the 57 Geo. 3. c. 99. s. 40. which prohibits any suit being commenced against spiritual persons for any penalty or forfeiture incurred under any of the provisions of that act, until a notice in writing of the intended process shall have been delivered to them, or left at the porter's usual place of abode, one calendar month before suing out the same. The treasurer of the West India Dock Company is entitled in an action on the case to 14 days' notice, under the 185th section of 39 Geo. 3. c. 69.* The notice to a justice of the peace must express the nature of the writ or III. TO OFFICERS OF PUBLIC COMPANIES. WALLACE AND ANOTHER V. SMITH, Treasurer of the West India Dock Company. E. T. 1804. K. B. 5 East, 115; 1 Smith, 346. S. C. S. P. LEWIS V. SMITH. T. T. 1815. Holt, N. P. 27. The declaration stated, that the plaintiffs had been brokers or agents, employed by divers consignees of property, &c. arriving from the West Indies, in landing it, paying the necessary duties, and delivering it to the respective owners for a reasonable reward. That a ship had arrived, the owners of which were accustomed to employ the plaintiffs as brokers, &c. but that the plaintiffs were prevented by the defendant's servants from executing their commissions. Plea, not guilty. At the trial it appeared that, by an order of the court of directors, all other brokers had been prohibited from acting, except a particular person appointed to act for the company. A verdict was taken for the plaintiffs; and a rule nisi was obtained to set it aside and have a new trial, on two grounds; 1. On the general construction of the statutes relating to the West India Dock Company. 2. That fourteen days' notice in writing had not been given to the defendant previous to bringing the action. Per Cur. It is expressly required by the 184th section of 39 Geo. 3. c. 69. "That all actions to be commenced by or against this company shall be brought by or against the treasurer of the company;" and by the 185th section of the same act, it is provided, "that no action shall be commenced against any person, for any thing done in pursuance of, or under colour of this act until fourteen days' notice shall be thereof given." When, therefore, the company are obliged to be sued in the name of their treasurer, to say that he is not a person within the meaning of the act, would be to narrow, by construction, the clause without any sufficient reason. Whether this rule extends to assistants is, from the case of Irving v. Wilson, 4 T. R. 458. extremely doubtful. But in the present case, the rule must be made absolute. Rule Absolute. See Everett v. Cooch, 7 Taunt. 1; Lewis v. Smith, Holt, N. P. C. 27. IV. FORM AND REQUISITES OF THE NOTICE. LOVELACE V. CURRY. E. T. 1798. K. B. 7 T. R. 631. A rule had been obtained to set aside a verdict in an action for false imprisonment against a justice of the peace, for an act committed by him in that capacity, on the ground that the notice given pursuant to the 24 Geo. 2. c. 44. was insufficient, as it did not express process intended what particular process the plaintiff intended to sue out, and the cause of action intended to be relied on; the Court concurred in the validity of the objection, observing that the question to be determined was whether or not the terms of the act of 24 Geo. 2. c. 44. have been complied with, and that if they had not been complied with, the action could not be maintained. That the words of the statute were to be sued out, as well as the cause of action. And see the statute 39 & 40 Geo. 3. c. 47. § 151. in which there are similar provisions as to the London Dock Company. clear and unequivocal, and required two distinct things: 1st. That the plaintiff should give notice in writing of the writ or process that he intends to have recourse to. 2dly. That such notice should contain the cause of action. The plaintiff not having acted conformably with these provisions, the notice given is insufficient, and the rule must be discharged. 2. SATIN V. DE BURGH. T. T. 1809. N. P. 2 Campb. 196. In an action for false imprisonment, the notice, after describing the It is not necesact of imprisonment, which constituted the subject of complaint, con- sary, however, cluded with a notice that "a bill of Middlesex would be sued out that the form of action should against the defendant for the said imprisonment, and that the plaintiff be stated in the would proceed against the defendant thereupon according to law." notice. This notice, it was contended, was invalid, as it did not specify the form of action, which under the 24 Geo. 2. c. 44. was necessary. Sed per Lord Ellenborough, C. J. A specification of the form of action is superfluous; all that is rendered requisite by the act is, that the nature of the process should be stated, and the cause of action. 3. STRICKLAND V. WARD. Winchester Summer Assizes, 1767. Reported in a note to LOVELACE V. CURRY. Vide supra. The plaintiff gave notice that he intended to bring an action on But the plaintiff the case against the justice for assault and false imprisonment; and having given noafterwards brought an action of trespass and false imprisonment. tice of one sort of action, cannot Yates, J. held the notice insufficient, as tending to mislead the declare in anjustice of the peace, who might know that an action on the case was other. improper, and such whereon the plaintiff might be nonsuited, and neglect to tender amends. See Massey v. Johnson, 12 East, 67; Gray v. Cookson, 16 East, 13. 4. HIDER V. DORRELL. M. T. 1808. C. P. 1 Taunt. 383. founded on a This was an action of trespass against a person in the employ of A notice purthe commissioners under a local paving act; it was objected that the porting to be notice had referred to the 47 Geo. 3. c. 38. s. 55. when, in point of fact, particular statute the person on whom it was served has been appointed by the commis- is not available sioners acting under 30 Geo. 3. c. 58. s. 68. and consequently the plain- as a notice under tiff could only recover for an act done under the former act, and not another statute. under the latter; particularly as the variance might conduce to misconception on the defendant's part. In this opinion the Court concurred; and a rule previously obtained to set aside a nonsuit was discharged. 5. AGAR V. MORGAN. H. T. 1816. Exch. 2 Price, 126. A separate no The 215th section of the Regent's Canal Act enacts, "that no tice to each of plaintiff shall recover in any action for any thing done in pursuance several persons intended to be of the act, unless notice in writing shall have been given to the sued in trespass defendant or defendants, or left at his, her, or their last or usual place is sufficient to of abode, fourteen days before such action shall be commenced, of such found a joint intended action, signed by the attorney for the plaintiff or plaintiffs, action against all of them for a tort committed in of the other persons who were in the action were named in the notice to specifying the cause of such action; nor shall the plaintiff or plaintiffs pursuance of an recover in such action, if tender of good and sufficient amends shall act of parliament, have been made to him, her, or them, or to his, her, or their attorney, although none by or on behalf of such defendant or defendants, before such action brought." An action of trespass had been instituted against several afterwards joined officers of the company, and a verdict found for the plaintiff; the notice was addressed to each of the officers by name, in the following terms: "I do hereby, as the attorney of, &c. for W. A. of, &c. give either of them. you notice, that at, or soon after the expiration of fourteen days from the time of your being served with this notice, or from the time of this notice being left at your place of abode, I shall commence an action against you, at the suit of the said W. A., and proceed thereupon according to law." It was objected, that as the notice was in all respects several, and purported to apprise each of the defendants of a separate action being intended to be commenced against him individually, and the action brought being joint both in form and effect, it could not be maintained, as not being the action of which notice had been given; which must tend materially to embarrass the defendants, and render exceedingly difficult, if not wholly impracticable, the object for which it had been provided, the tender of sufficient amends; and that therefore the plaintiff ought to have been nonsuited. In showing cause against the rule for a nonsuit, it was argued, that if any difference could arise from joining several together in this action of trespass, it must operate in favour of the defendants, whose advantages are enlarged, and not diminished, by such a mode of proceeding; were any one of them prejudiced indeed by being sued with others, the argument would be entitled to some consideration. The objection, at all events, would have been obviated, if all the defendants had been named in the addressing part of the notice; it is, therefore, an objection to the heading only, and merely formal. Had the action indeed been joint against four, and the trespass had not been proved against all, that might have afforded a colourable objection; but as a trespass proved against several is a trespass in each and every one, the joinder of the defendants cannot be an objection to such an action, available to either; for in actions of trespass, all the defendants are principals, and each is liable for the whole damage proved. Per Cur. In all cases of trespass the action is joint and several; and the plaintiff is not obliged to confine himself to trespasses committed individually; for the act of one is the act of all, and the act of all is the act of each. Assuming this proposition to be correct, the language of this notice is sufficiently explicit; it is, "I give you notice that I shall commence an action against you;" this may mean either alone, or with others. As to the danger of the plaintiff's receiving a two-fold satisfaction, one cannot suppose that such a thing could happen from separate tenders; and if they were all to tender satisfaction, the plaintiff would have no right to accept it. A tender by one, if accepted, would be a satisfaction for all; and it is a common plea to state that the trespass was committed with others, who have made satisfaction. You could not plead the nonjoinder of others in abatement. The same notice has been given to every one of the defendants, and is therefore in effect a joint notice, because you might have given in evidence joint trespasses in an action founded upon it. |