THE

Country Attorney's Practice.

PART I.

PROCEEDINGS IN AN ACTION TO EXECUTION.

CHAPTER I.

PROCEEDINGS BEFORE ACTION.

Notice of Action-to Justices-Officers of Excise and Customs, &c.-Officers of Army, Navy, and Marines-ClergymenCommissioners of Bankrupt-Other Notices required by Statute-Limitation of such Actions-Demand of Copy and Perusal of Warrant-Other Demands-In Trover-In Detinue.

In order to maintain an action at law, it is sometimes necessary before it is brought to serve the intended defendant with a notice stating the cause of the action, and the plaintiff's intention to commence it; sometimes to demand the perusal and a copy of a warrant; and sometimes to make some other request or demand of which the object is to complete the plaintiff's right to recover; and it will be proper, before entering on the proceedings in an action, to draw the attention of the attorney to the cases in which either of these things must be done.

In those cases where a notice of action is requisite, its chief object is to give the person who is intended to be sued an opportunity of obtaining advice, whether he have given cause for the action or not; and if he find that he has, of tendering a sum of money by

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way of amends to the party who complains of him; and, therefore, in such cases the action must not be commenced till a certain time after the notice has been given. This time is prescribed by the statute 5 & 6 Vict. c. 97, s. 4, to be in all cases one calendar month. The notice is never necessary except where it is required by some statute; and the same statute which requires the notice to be given, generally limits the time within which the action may be commenced to a much shorter period than that limited for other actions.

A demand of the perusal and a copy of a warrant is necessary where the illegal act which has been committed, and which is complained of, was authorized by the warrant; for though the person who executed the warrant has committed an illegal act, yet the blame rests with him who issued the warrant authorizing that act: and the object of the demand, as will presently be seen, is to cast the responsibility where the fault lies. But where the warrant itself is legal, and the illegal act complained of consists in some excess not authorized by the warrant, notwithstanding it may have been committed under colour of it, a perusal and copy of the warrant need not be demanded before commencing an action against the party who has been guilty of that excess (a). It is, however, necessary in most, and advisable in all, cases to make a demand, for there may be a doubt whether a case may not possibly occur where the warrant may be legal, and yet the want of a demand of the perusal and a copy of it subject the plaintiff to failure in his action (6).

The notice of action, and the demand of the perusal and a copy of the warrant, are only necessary in cases where they are expressly required by statute; but the other request or demand which has been mentioned is, in most cases, independent of any sta

(a) Sturch v. Clarke, 2 Barn. & Adol. 113.
(3) Price v. Messenger, 2 Bos. & Pul. 158.

tute, and its object is usually to obtain evidence that the plaintiff's right has been withheld from him, where that is necessary to be proved, and where the only way of proving it is by showing the defendant's refusal to comply with a request or demand of that right.

If the intended action be against a justice of the peace for any thing done by him in the execution of his office, it is required by statute 24 Geo. II. c. 44, s. 1, that notice in writing of the intended writ or process shall be delivered to him, or left at the usual place of his abode, by the attorney, or agent, of the party who intends to sue or cause the same to be sued out or served, at least one calendar month before the suing out or serving the same; in which notice shall be clearly and explicitly contained the cause of action which the party hath, or claimeth to have, against the justice. On the back of the notice there must be indorsed the name of such attorney, or agent, together with the place of his abode, and he is to be entitled to a fee of twenty shillings for the preparing and serving such notice, and no more. By section 4 no evidence shall be permitted to be given by the plaintiff on the trial, of any cause of action except such as is contained in the notice; and by section 8 the action must be commenced within six calendar months after the act committed.

The statute 28 Geo. III. c. 37, s. 25, is similar to the above. The persons who are entitled to the notice, by virtue of this statute, are "any officer of the customs or excise, or any person or persons acting by his or their order, in his or their aid ;" and the notice is required where the action is to be brought "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.” This act, in addition to the name and place of abode of the attorney or agent, requires the name and place of abode of the person or persons, in whose name or names the action

is intended to be brought, to be stated in the notice; and by section 23 the action must be brought within three lunar months next after the matter or thing done. Where the action is to be brought against any officer of excise, or person employed in the revenue of excise, or any person acting in the aid and assistance of any such officer or person so employed, it is further required by statute 7 & 8 Geo. IV. c. 53, s. 114, that the notice shall state the time when and the place where the cause of action arose. The limitation in this act is three calendar months after the cause of action shall have arisen; but as the limit in 28 Geo. III. c. 37, s. 23, is three lunar months, the action should be brought within the three lunar months. The statute 6 Geo. IV. c. 108, s. 93, requires a similar notice to be given where the intended action is against any officer of the army, navy, or marines, or against any person acting under the direction of the commissioners of his Majesty's customs, for any thing done in the execution of or by reason of his office; and this action must be brought within six lunar months next after the cause of action has arisen. The statute 43 Geo. III. c. 99, s. 70, for consolidating the provisions in the acts relating to the duties under the management of the commissioners for the affairs of taxes, requires a like notice where an action is intended to be commenced against any person or persons for any thing done in pursuance of that act, or any act for granting duties to be assessed under the regulations of that act; and this action must be commenced within six calendar months next after the fact committed.

A similar notice is required by the Building Act, 7 & 8 Vict. c. 84, s. 108, to be given in respect of any thing done or intended to be done in pursuance of that act. The action must be brought within six lunar months.

Before commencing an action against a clergyman for non-residence, at the suit of any informer, the statute 57 Geo. III. c. 99, s. 40, requires that he,

and also the bishop of his diocese, be each served with a similar notice one calendar month before the action is brought; the notice to the bishop to be left at the registry of his diocese; and this notice must express the penalty or penalties intended to be sued for, and must not be given before the 1st day of April, in the next year after the penalty has been incurred.

By the Turnpike Act, 3 Geo. IV. c. 126, s. 143, a notice must be given before commencing an action for any forfeiture or penalty imposed by that or any other act made for erecting turnpikes, or for repairing or amending turnpike roads; the action, must be brought within three calendar months. And by the Highway Act, 5 & 6 Will. IV. c. 50, s. 109, notice of action is required before commencing an action against any justice, surveyor, or other person, for any thing done in pursuance of that act, and the action must be brought within three calendar months.

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By the Bankrupt Act, 6 Geo. IV. c. 16, s. 41, commissioners of bankrupt are entitled to a similar notice, at least one calendar month before the action is brought, and the action must be brought within three calendar months after the fact committed.

The statutes 7 & 8 Geo. IV. c. 29, s. 75, and c. 30, s. 41, require a like notice to be given to the intended defendant for any thing done in pursuance of the acts for consolidating and amending the laws relative to larceny, &c., and malicious injuries to property; and the action must be brought within six calendar months.

For the protection and indemnity of the commissioners and other persons acting in the execution of the acts relating to the land tax, the statute 5 & 6 Will. IV. c. 20, s. 19, requires a calendar month's notice to be given previous to the commencement of any action against any person or persons for any thing done in pursuance of those acts, and also that such action be commenced within six calendar months next after the fact committed, and not afterwards.