ment of the commissioners for the affairs of taxes, "no writ or process. shall be sued out, for the commencement of any action or suit, 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, until one calendar month next after notice in writing shall have been delivered to, or left at the usual place of abode of such person or persons, by the attorney or agent for the intended plaintiff or plaintiffs; in which notice. shall be clearly and completely contained the cause and causes of action, the name and place or places of abode of the intended plaintiff or plaintiffs, and of his or their attorney or agent: and no evidence shall be given, on the trial of such action or suit, of any cause or causes of action, other than such as is or are contained in such notice." It is not necessary to give a notice of action on this statute, where assumpsit is intended to be brought, for money had and received, to recover the amount of an excessive charge made by the defendants as collectors, on a distress for arrears of taxes.(d) And a sheriff, who levies arrears of taxes, under 48 Geo. III. c. 141,(e) is not entitled to notice of an action to be brought against him, for any thing done under the provisions of that act.(ƒ)

By the statute 57 Geo. III. c. 99, § 40, "no writ shall be sued out against, nor any copy of any process, at the suit of any informer, be served upon any spiritual person, for any penalty or forfeiture incurred under any of the provisions of that act, until a notice in writing of such intended writ or process shall have been delivered to him, or left at the usual or last place of his abode, and also to the bishop of the diocese, by leaving the same at the registry of his diocese, by the attorney or agent for the party who intends to sue or cause the same to be sued out or served, one calendar month at the least before the suing out or serving of the same; in which notice shall be clearly and explicitly contained the cause of action, which such party hath or claimeth to have, and the penalty or penalties for which such person intends to sue; and on the back of which notices respectively shall be indorsed the name of such attorney or agent, together with the place of his abode; and no such [ 33 ] notice shall be given before the first day of April, in the year next after any such penalty or penalties shall have been incurred." By the statute 6 Geo. IV. c. 16, § 41, "no writ shall be sued out against, nor copy of any process served on any commissioner of bankrupt, for any thing by him done as such commissioner, unless notice in writing, of such intended writ or process, shall have been delivered to him, or left at his usual place of abode, by the attorney or agent for the party intending 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; and such notice shall set forth the cause of action which such party has or claims to have against such commissioner; and on the back of such notice shall be indorsed the name of such attorney or agent, together with the place of his abode, who shall receive no more than twenty shillings for preparing and serving such notice." And, by § 42, "no such plaintiff shall recover any verdict against such commissioner, in any case where the action shall be grounded on any act of the defendant as commissioner, unless it is proved upon the trial of such action, that such notice was given as aforesaid; but in default thereof, such commissioner shall recover a verdict and costs as thereinafter

(d) 1 Barn. & Ald. 42.

(f) 8 Moore, 400. 1 Bing. 369, S. C.

(e) No. V. Rule, 2.

mentioned;(a) and no evidence shall be permitted to be given by the plaintiff, on the trial of any such action, of any cause of action, except such as is contained in the notice." And lastly, by the statutes 7 & 8 Geo. IV. c. 29, § 75, and c. 30, § 41, "notice in writing of an action, 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 of the cause thereof, shall be given to the defendant, one calendar month at least before the commencement of the action."

A separate notice to each of several persons intended to be sued in trespass, has been deemed sufficient to found a joint action against all of them, for things done in pursuance of an act of parliament; although none of the other persons, who were afterwards joined in the action, were named in the notice to either of them.(b) But where one person acted as clerk to two public bodies, and a notice of action required by statute was given, addressed to him as clerk to one body, the cause of action arising under the authority of the other body, the court of Common Pleas held that the notice was insufficient. (c) And a notice of action, under an act of parliament against a toll-gate keeper, "for demanding and taking toll, for and in respect of certain matters and things particularly mentioned and exempted from the payment of toll, in and by a certain act of parliament, intituled, &c.," is too uncertain, and bad.(d)

For the protection of constables, &c., acting in obedience to the warrant of a magistrate, it is enacted by stat. 24 Geo. II. c. 44. § 6, that [*34] "no action shall be brought against any constable, headborough or other officer, or against any person or persons acting by his order and in his aid, for any thing done in obedience to any warrant under the hand or seal of any justice of the peace, until demand hath been made,(a) or left at the usual place of his abode, by the party or parties intending to bring such action, or by his, her or their attorney or agent, in writing, signed by the party demanding the same, of the perusal and copy of such warrant, and the same hath been refused or neglected for the space of six days after such demand: And in case, after such demand and compliance therewith, by showing the said warrant to, and permitting a copy to be taken thereof, by the party demanding the same, any action shall be brought against such constable, &c., without making the justice or justices, who signed or sealed the said warrant, defendant or defendants, that on producing and proving such warrant at the trial of such action, the jury shall give their verdict for the defendant or defendants, notwithstanding any defect of jurisdiction in such justice or justices: And if such action be brought jointly against such justice or justices, and also against such constable, &c. then, on proof of such warrant, the jury shall find for such constable, &c. notwithstanding such defect of jurisdiction as aforesaid: And if the verdict shall be given against the justice or justices, in such case the plaintiff or plaintiffs shall recover his, her or their costs against him or them; to be taxed in such manner, by the proper officer, as to include such costs as the plaintiff or plaintiffs are liable to pay to the defendant or defendants, for whom such verdict shall be found.'

The intent of these provisions was to prevent the constable or other

(b) 2 Price, 126, and see 5 Price, 168.

(a) See & 44. (c) 1 Taunt. 383. (d) 2 Chit. Rep. 673, and see 5 Barn. & Cres. 125. 7 Dowl. & Ryl. 810, S. C. (a) For the form of the demand, see Append. Chap. I. ¿ 10, 11.

officer, when acting in obedience to his warrant, (b) from being answerable, on account of any defect of jurisdiction in the justice: Therefore, if an officer seize goods, in obedience to the warrant of a magistrate, whether that warrant be legal or not, he cannot be sued, until a previous demand has been made of a copy of it.(c) And a constable, executing the warrant of a justice of peace, if sued in trespass without the magistrate, is within the protection of the statute, and entitled to a verdict, on proof of such warrant; having first complied with the plaintiff's demand of a perusal and copy of it, before the action brought, though not within six days after such demand, as the act directs.(d) But where a constable of one hundred took upon him to execute a warrant out of his own hundred, directed to the constable of another hundred by name, "and to all other peace officers in the county of Kent;" this was holden not to be a case within the protection of the statute.(e) So, where goods were taken under a *warrant [ *35 ] of distress, granted by a justice of peace for the county of Kent, directed to the constables of the lower half-hundred of C. and G. in the county of Kent, if it turn out, that the warrant was executed within the jurisdiction of the cinque ports, and not in the county of Kent, the constables who executed it are not entitled to the benefit of the statute, but may be sued in trespass, without the magistrate being made a defendant.(aa) And where the defendants, in order to levy a poor's rate under a warrant of distress granted by two magistrates, broke and entered the plaintiff's house, and broke the windows, &c. the court held that they might be sued in trespass, without a previous demand of the perusal and copy of the warrant.(b)

It has been determined, that a churchwarden or overseer of the poor, taking a distress for a poor's rate, (c) or a gaoler, receiving and detaining a prisoner, (d) under a warrant of magistrates, is entitled to the protection of the statute, in having the magistrates made defendants with him, in an action of trespass. And a constable, who merely acts in aid of a parish officer, in levying a distress for poor rates; under a warrant of magistrates directed to such officer, is not liable to an action of trespass, although a demand was duly made on such constable, in pursuance of the statute.(e) But an action of replevin is holden not to be an action, within the meaning of the statute. (f) And the act extends only to actions of trespass, or tort: Therefore, where an action for money had and received was brought against an officer, who had levied money on a conviction by a justice of the peace, the conviction having been quashed, it was holden that a demand of a copy of the warrant was not necessary.(g) In cases to which the act applies, if the plaintiff's attorney make out two papers precisely similar, purporting to be demands of a copy of the warrant, pursuant to the statute, and sign both for his client,

(6) 3 Bur. 1742. 1 Blac. Rep. 555, S. C. 3 Esp. Rep. 226. 2 Manle & Sel. 259. 1 Car. & P. 41, (a).

(c) 2 Bos. & Pul. 158. 3 Esp. Rep, 96, S. C.

(d) 5 East, 445.

(e) 1 H. Blac. 15, n. and see 3 Barn. & Ald. 330, but see stat. 5 Geo. IV. c. 18, 26, which authorizes constables to execute warrants out of their precincts, provided it be within the jurisdiction of the justices granting or backing the same.

(aa) 5 East, 233.

(6) 2 Maule & Sel. 259, and see 2 Bos. & Pul. 158. 6 Barn. & Cres. 232.

(e) Bul. Ni. Pri. 24. 7 Durnf. & East, 270.

(e) 4 Moore, 465.

(d) 1 Gow, 97.

(ƒ) 2 Blac. Rep. 1330, 6 East, 283, but see Willes, 668. 7 Durnf. & East, 270, contra. (9) Bul. Ni. Pri. 24. Ante, 31, 2.

VOL. I.-4

and then deliver one to the defendant, the other will be sufficient evidence at the trial.(h)

The benefit of the statute 24 Geo. II. c. 44, § 1, was extended to commissioners of bankrupt, by the statute 6 Geo. IV. c. 16, § 31, by which it is enacted, that "no action shall be brought against any person appointed by commissioners of bankrupt, for any thing done in obedience to their warrant, prior to the choice of assignees, unless demand of the perusal and copy of such warrant hath been made, or left at the usual place of abode, of such person or persons, by the party or parties intending to bring such action, or by his or their attorney or agent, in writing, signed by the party or parties demanding the same, and unless the same hath been refused or [*36 ] neglected for six days after such demand: and if, *after such demand and compliance therewith, any action be brought against the person so appointed as aforesaid, without making the petitioning creditor or creditors defendant or defendants, if living, on producing and proving such warrant at the trial of such action, the jury shall give their verdict for the defendant, notwithstanding any defect of jurisdiction in the commissioners; and if such action be brought against the petioning creditor or creditors, and the person so appointed as aforesaid, the jury shall, on proof of such warrant, give their verdict for the person so appointed, notwithstanding any such defect of jurisdiction; and if the verdict shall be given against the petitioning creditor or creditors, the plaintiff or plaintiffs shall recover his, her or their costs against him or them, to be taxed so as to include such costs as the plaintiff or plaintiffs are liable to pay to the person so appointed as aforesaid."

Having thus stated what is necessary to be done by the plaintiff, before the commencement of the action, it may be proper to add, that where it is meant to be defended on the ground of a tender of the debt, such tender should be made before the action is brought: And a tender of sufficient amends may be made, by the statute 21 Jac. I., c. 16, § 5, in an action for an involuntary trespass to real property.(a)[1]

(h) 2 Bos. & Pul. 39, and see 4 Esp. Rep. 203. Peake's Evid. 5 Ed. 104. 2 Campb. 110. 7 Moore, 112, 3 Brod. & Bing. 288, S. C. 1 Car. & P. 41.(a) 6 Barn. & Cres. 394. (a) 1 Str. 549.

[1] Before the statute 3 & 4 W. IV., c. 98, the tender should regularly have been made in lawful money of England; which is of two sorts, viz., English money, coined by the King's authority, or foreign coin, made current by his royal proclamation within the realm, Co. Lit. 207; the latter was considered as a good tender, Wade's case, 5 Co. 114, b.; and though bank notes were not made a legal tender, by the statute 37 Geo. III., c. 45, Grigby v. Oakes, 2 Bos. & P. 526, and see stat. 56 Geo. III., c. 68, 11, by which gold coin was declared to be the only legal tender; yet a tender in Bank of England, or country bank notes, was good, unless specially objected to on that account at the time. Wright v. Reed, 3 Durnf. & E. 554. Brown v. Saul, 4 Esp. Rep. 267, per Ld. Ellenborough, Ch. J. Saunders v. Graham, Gow, 121, per Dallas, Ch. J. Polglass v. Oliver, 2 Cromp. & J. 15. 2 Tyr. Rep. 89. 1 Price N. R. 133, S. C. The same doctrine was applied to a draft on a banker, per Buller, J., in Wilby v. Warren, Sit. Md. after. M. T. 28 Geo. III. K. B., Tidd Prac. 9 Ed. 187 :(m) and in one case it was holden, that a tender in a Liverpool bank bill of exchange was good, if not specially objected to, Lockyer v. Jones, Peake Cas. Ni. Pri. 180, n.; but, in a subsequent case, the tender of a Bristol bank bill was holden not to be good, although the party made no objection as to the form of the tender, Mills v. Safford, id. ib., and see Polglass v. Oliver, 2 Cromp. & J. 15. 2 Tyr. Rep. 89, S. C. And for the doctrine of tender in general, and in what cases it is, or is not allowed, at common law, or by statute; at what time, by and to whom, and in what manner it should be made; and when and how it should be pleaded, &c., see Tidd Sup. 1830, p. 10, &c. And now, by the statute 3 & 4 W. IV., c. 98, 6, it is enacted, that "from and after the 1st day of August, 1834, unless and until parliament shall otherwise direct, a tender of a note or notes of the Governor and Company of the Bank of

*CHAPTER II.

Of the JURISDICTION of the COURTS of KING'S BENCH, COMMON PLEAS, and EXCHEQUER of PLEAS, in PERSONAL ACTIONS; and of the JUDGES, ADVOCATES, and OFFICERS of the COURTS.

THE Court of King's Bench has an original jurisdiction in actions for trespasses vi et armis, committed in Middlesex, or other county, where the court sits:(aa) and it has by degrees acquired a jurisdiction, which it exercises by original writ, against peers of the realm, and members of the house of commons: and against corporations, and hundredors on the statute 7 & 8 Geo. IV., c. 31; and in all personal actions, brought against any person not being a prisoner in the actual custody of the marshal, nor privileged as an attorney or officer of the court. It has likewise jurisdiction by bill, in all personal actions, brought against prisoners in the actual custody of the marshal, or persons who have put in bail upon a cepi corpus, or habeas corpus, and who are still for this purpose supposed to be in custody.(6) On which latter ground, the court is enabled, by a fiction, to hold plea by bill, in all personal actions whatever; for, by feigning a complaint of trespass, over which the court has an inherent jurisdiction, the plaintiff is allowed, when the defendant is brought in on such complaint, to waive or abandon it, and to exhibit his bill and declare against him as a prisoner, for any other species of injury.(c) This court has also jurisdiction in all personal actions, brought by or against its attorneys and officers;(d) who are entitled to sue therein by attachment of privilege, and must be sued by bill: And members of the house of commons may be sued therein by bill and summons, &c., in consequence of the statute 12 & 13 W. III., c. 3, § 2.

The court of Common Pleas has a concurrent jurisdiction with the court of King's Bench, in all personal actions. This jurisdiction is exercised, first, by original writ, issuing out of Chancery; which, however, is seldom issued, except where it is necessary in consequence of a writ of error, after *a judgment by default: Secondly, by writ of capias [ *38 ] quare clausum fregit, which supposes an original to have issued,

(aa) Trye's jus filizarii, 28.

(b) Id. ib.

(c) R. E. 15 Geo. II., reg. 1. K. B. Cowp. 455. And, for an account of the jurisdiction in general of the court of King's Bench, and of that in particular which it exercises in civil actions by bill, see Sul. Lect. XXXII., p. 300, &c. 3 Blac. Com. 42. 2 H. Blac. 271, 299, 300. And see further, as to the jurisdiction of the King's Bench in personal actions, by original writ, Steph. Pl. 4, 5, by bill, Id. 52, &c., and by attachment of privilege, Id. 58. (d) 4 Inst. 71, 72. 2 H. Blac. 270, 299.

England, expressed to be payable to bearer on demand, shall be a legal tender, to the amount expressed in such note or notes; and shall be taken to be valid, as a tender to such amount, or all sums above five pounds, on all occasions on which any tender of money shall be legally made, so long as the Bank of England shall continue to pay on demand their said notes in legal coin. Provided always, that no such note or notes shall be deemed a legal tender of payment, by the Governor and Company of the Bank of England, or any branch bank of the said Governor and Company: but the said Governor and Company are not to become liable, or be required to pay and satisfy, at any branch bank of the said Governor and Company, any note or notes of the said Governor and Company, not made specially payable at such branch bank; but the said Governor and Company shall be liable to pay and satisfy, at the bank of England in London, all notes of the said Governor and Company, or of any branch thereof."