6. WILLIAMS V. BURGESS. T. T. 1810. C. P. 3 Taunt. 127. at C. is not a The plaintiff had given the defendant, a custom-house officer, A notice of acnotice under the 23 Geo. 3. c. 70. s. 30. of his intention to bring an tion for atrespass action of trespass against him for having, on a particular day, broken in the plaintiff's open the plaintiff's dwelling-house in C. in the parish of N. G. in the dwelling-house county of M., but the plaintiff's place of abode did not appear on any sufficient deother part of the notice. It was therefore suggested, and the opinion scription of the afterwards adopted by the Court, that as there was no distinct state- plaintiff's place ment of the plaintiff's present place of residence, the mere inference of abode at the capable of being collected from the description of the house where the trespass was alleged to have been committed, was not sufficiently particular or positive. 7. LEWIS V. SMITH. T. T. 1815. Holt, N. P. C. 27. time of the notice. In an action of trover against the defendant as treasurer of the A letter from an West India Dock Company, it was objected that a notice, preliminary attorney, stating to bringing the action, had not been delivered to the defendant, con- that he is informable with the 39 Geo. 3. c. 69. s. 185. This objection was endea-structed to take legal proceedings voured to be obviated by producing a letter addressed by the plaintiff's unless a demand attorney to the defendant, wherein he stated "that he had instructions be complied to take legal measures if the property claimed was not delivered up," with, is not a and by proving that the attorney for the company had acknowledged sufficient notice the receipt of the letter, and requested to see certain documents connected with the plaintiff's title. Sed per Gibbs, C.J. The attorney's letter was merely an application of courtesy, and not a formal notice. Plaintiff nonsuited. 8. OSBORN V. GOUGH. M. T. 1803. C. P. 3 B. & P. 550. of action. notice to de In case, against a justice of the peace for maliciously refusing to It is sufficient accept sureties for the plaintiff's appearance, the notice of action was for the attorney endorsed "W. J. of Birmingham, in the county of W.; attorney for the who gives the within named, W. O.;" at the trial a verdict was found for the plaintiff. scribe himself It was argued in support of a rule for a nonsuit that the statute of 24 Geo. 2. c. 44. had been always rigidly construed; that the town of B. was a place of great extent, and that the object of the act was to enable the defendant, without difficulty or loss of time, to find out the attorney and tender amends; that by allowing such a general description to be a sufficient statement of the residence of the attorney would be frustrating the design of the legislature. Sed per Cur. The proper interpretation to be put upon the statute is, that if the place endorsed upon the notice be the true place of the attorney's abode, it lies on the defendant to show that such description has not afforded him the opportunity intended to be given him by the act of parliament. In the present case no evidence has been adduced that the attorney could not have been found, if reasonable diligence had been exercised. The true rule appears to be, that such a reasonable notice ought to be given as will enable the defendant to make a tender. The analogy between notice of bail and notice of action cannot be sustained. Persons offering themselves as bail frequently reside in obscure situations, and being only a two days' notice, must generally of the But it must appear from the words used that we place at which the notice is dated is the place of the attorney's abode. A notice in which the attorney describes himself as of New Inn, Lon. don, instead of necessarily be very accurate, or the limited time of inquiry would elapse before the bail could be found. And although the description ought not to be quite vague, and should, perhaps, be stated with that particularity which would be sufficient for a venue, yet, where such a description as the present is given, no difficulty can arise. 9. TAYLOR V. FENWICK. M. T. 1782. K. B. Cited by Lawrence, J. in 10. STEARS V. SMITH. 1810. 6 Esp. 138. In this case, the notice to the defendant, a justice of the peace, was signed J. S. New Inn, London; when it was proved that where the attorney lived was New Inn, Westminster. Per Lord Ellenborough. The plaintiff must be called. See as to this kind of variance, Goodes v. Wheatley, 1 Campb. 231; Westminster, is Goodtitle dem. Pinsent v. Lammiman, 6 Esp. 128; S. C. 2 Campb. 274; Doe dem. Gunston v. Welch, 4 Campb. 264; Williams v. Burgess, 3 Taunt. 127. insufficient. The month begins the day notice is served. on which the V. TIME, HOW COMPUTED. CASTLE V. BURDITT. E. T. 1790. K. B. 3 T. R. 623. Trespass, for seizing, &c. a quantity of tobacco; plea, not guilty. The defendants, it appeared, were excise officers; and within the protection of the 23 Geo. 3. c. 70. which enacts, "That no writ shall be sued out against any person, acting in the execution of that statute, until one calendar month next after notice in writing shall have been delivered to him." The notice was served on the defendants on the 28th of April, and the writ sued out on the 28th of May. It was objected at the trial, that the writ was sued out a day too soon; and Gould, J. being of that opinion, nonsuited the plaintiff. But the Court of King's Bench set it aside, because, where computation of time is to be made from an act done, the day on which the act is done is to be included in the reckoning. See Clayton's case, 5 Rep. 1; Osbourn v. Rider, Cro. Jac. 135; Rex v. Adderley, Doug. 463; Lacon v. Hooper, 6 T. R. 224; Glassington v. Rawlins, 3 East, 407; and see also Godin v. Ferris, 2 H. Bl. 14; Saunders v. Saunders, 2 East, 254; Crooke v. Mc. Tavish, 1 Bing. 167. Adding Bail.-See tit. Bail. Adding Counts.-See tit. Declaration. Adding Pleas.-See tit. Plea. Addition.*—And see tit. Affidavit; Devise; Grant. I. WHEN AND IN WHAT MANNER THE ADDITION II. OF STATING THE ADDITION WITH REFERENCE III. IV. TO THE TOWN, HAMLET, PLACE, OR V. CONSEQUENCES OF A DEFECTIVE STATEMENT 1. WHEN AND IN WHAT MANNER THE ADDITION IS TO BE STATED IN GENERAL. 1. THE KING V. Robert FieldING. T. T. 1697. K. B. 12 Mod. 199. Robert F. after being attainted by outlawry for high treason by the The statute of name of R. F. Esq. obtained a pardon, and brought a writ of error, additions is a assigning for cause, that before and after the finding of the indict- general law. ment he was known by the name of Robert F. yeoman, and not esquire, as described in the indictment. Per Holt, C. J. It would have been a better assignment of error to have recited the statute of 1 H. 5. c. 15. but it will be sufficient ; that act being a general law, the Court will judicially take notice of it. An addition is necessary in all original writs, in actions personal, appeals, indictments, and presentments, or in other proceedings upon which the defendant may be outlawed; 2 Leon. 200; but the plaintiff's or prosecutor's addition need not, in any case, be inserted. See 2 Leach, 861; 2 Hale, 142; Burn, J. Indictment; Bac. Ab. Indictment, G. 2. It seems, that, even at common law, before the statute of additions, it was necessary to state the rank and degree of the defendant, if he were a knight or any higher dignity, in addition to the surname and name of baptism; and if he were a lord, to supply the place of the surname. So if he were indicted in respect of his office, that addition should be given him. But the stat. 1 Hen. 5. c. 5. very much extended this rule; by that statute it was enacted, that in all original writs of action, personal appeals, and indictments, and in which the exigent shall be awarded, addition shall be made in the names of the defendants, of their estate, or degree, or mystery, and of the towns, or hamlets, or places, and counties, of which they are or were conversant; and that, if these additions be omitted, any outlawries founded thereon shall be void, and the proceedings shall be abated by the exception of the party. In the construction of the statute, it has become a settled rule, that the words degree" have the same signification, and include the titles, dignities, trades, and professions of all ranks and descriptions of men. estate or And in construing it, it has been held that an addition is only necessary where process of outlawry lies in default of appearance. If an action be A. B. of C. 2. REX V. LORD BRANDON. M. T. 1686. K. B. Comb. 70. Upon an indictment for a forcible entry, it was contended that it could not be sustained, because the defendant's addition had not been inserted according to the statute. Per Cur. An addition is unnecessary, except in the case of outlawry; and if it had been essential, it would have been aided by the appearance. See 2 Hale, 177. 199; Cro. Eliz. 148; C. C. C. 35; Bac. Ab. Indictment, G. 2; Misnomer, B. 2; Cro. Eliz. 148. 3. LEPIOT V. BROWNE. T.T. 1703. K. B. 6 Mod. 198; S. C. Holt, 141; B. being removed by habeas into the custody of the marshal, was brought against declared against by the name of J. B. of, &c. in the custody of the marshal, and pleaded in abatement that he was not distinguished father and son from his father in the declaration, whose name was the same, and resided in the same town. where there is a of the same name, the ad dition of senior or junior is not necessary. The addition of Per Cur. Had this been a suit by original, and the father and son resident in different counties, the addition of junior would have been unnecessary; but this being an action against B. in custod. mareschalli, it should have been shown that the father was also in custod. mareschalli, and therefore judgment of respondeas ouster must be awarded. See Lord Raym. 304; 2 Inst. 670; Stiles, 394; Holl, 330; Com. Rep. 260; 1 Viner, Ab. Addition, n; 1 Com. Dig. Abatement, f. 21. EARL OF BANBURY V. WOOD. M. T. 1702. K. B. 1 Salk. 5; 3 id. 20; 6 Mod. 84; 2 Lord Raym. 987; Holt, 41. S. C. In a homine replegiando, the defendant appeared and pleaded in a defendant need abatement that there was no addition of place. The plaintiff demurred, for a replevin is not vi et armis; and in actions vi et armis, process of outlawry only will lie. not be inserted in a honuine replegiando; Per Cur. Process of outlawry lies in replevin, and the king is entitled to a fine. The words of the statute of H. 5. are that in every original, in actions personal, wherein process of exigent lies, &c. That Nor in any writ statute is construed strictly. In the present case the original replevin that is ri-coun- is vi-countiel, and we must proceed on the pluries; therefore the first tiel; or in an alias replevin needs no addition within the statute; and where the first writ or pluries writ, is without addition, it cannot be necessary in the second; nay, the insertion of such an addition would vitiate the second writ, because, where any writ or process is founded on a former one, it must not vary from the first writ. where no addition was required in the original. An addition by reputation is good where the suit is by bill, aliter where it is by original. Sed vide post, 217. See Cro. Eliz. 869; 3 Salk. 20; Holt, 41; 2 Inst. 665; 4 Mod. 347; Noy. 135; 25 Hen. 6. c. 6; 2 Rol. Ab. 835; F. N. B. 220; Plow. 228; 1 Inst. 128; 25 Edw. 3. c. 17. 5. BENNET V. PURCELL. M. T. 1701. K. B. 2 Ld. Raym. 849. To an action of assumpsit against the defendant by the name of T. P. Esq. plea in abatement, that T. P. against whom the bill is exhibited, is a gentleman, and not an esquire. On demurrer it was contended that the plaintiff ought to have replied that the defendant was an esquire and not a gentleman, and that alleging it with a habitus et reputatus fuit was bad, because the addition ought to be true and certain: and Powell, J. inclined to that opinion; but C. J. Holt said, that in these cases the addition was only a description of the person, and common reputation was sufficient, the suit being by bill. But it would have been otherwise on an original, on which process of outlawry lies. See 19 Hen. 6. c. 51; 26 Hen. 6. c. 56; 11 Hen. 6. pl. 25. 6. REX V. BROUGH. H. T. 1748. C. P. 1 Wils. 244. information in the nature of a quo warranto; To an information in the nature of a quo warranto, against the No addition is defendant for exercising the office of mayor, he pleaded that at necessary in an the time of exhibiting the information, he was a gentleman, and not an esquire; absque hoc, that he was an esquire. On a motion to set this plea aside, it was contended that an information in the nature of a quo warranto was not within the statute of additions. To which opinion the Court inclined, observing that there never was any process of outlawry upon an information in the nature of a quo warranto, which is not like a quo warranto by original writ, which was in use before the present mode of proceeding was adopted. The statute of additions is to be construed strictly, and only extends to cases where process of outlawry lies.-Judgment, quod respondeat ouster. 7. BENNET V. PURCEL. M. T. 1701. K. B. 2 Ld. Raym. 849. A suit was by bill against T. P. Esq. It is no plea in abatement Or in actions by that the defendant is a gentleman, and not an esquire, because the bill. suit by bill, the addition, was only a description of the person, and common reputation is sufficient for it; but it should be otherwise upon original, on which process of outlawry lies; because the stat. of H. 5. requires an addition in such case. Per Holt, C. J. And judgment that defendant answer over, 8. THE KING V. SEMPLE. 1786. 1 Leach, 420; S. P. 3 Salk. 20. The indictment stated that I. G. H. otherwise Semple, otherwise If the addition to Kennedy, labourer, did feloniously, &c. A motion was made to quash prisoner's name the indictment, because the addition had been placed after the alias be placed after the alias dictus, dictus, and not after the first name, which was immediately granted and not after the by the Court. first name, the See Cro. Eliz. 198. 583; 2 Inst. 669; 2 Hale, 171; Hawk. b. 2. indictment will c. 25. s. 70; c. 2. s. 126; Bac. Ab. Indictment, G. 2; 1 Saund. 14. be quashed. a. 1; Staund. 68; Arch. Crim. Pl. 7. 9. THE KING V. HANNAM. 1787. 1 Leach, 420. that But if the prisoner plead to the indictment, the defect is A motion was made to quash an indictment on the ground the addition had been placed after the alias dictus, and not after cured. the first name. |