Litle v. Toland , 6 Binn. 83 ( 1813 )

'ftiis day the judges delivered their opinions.

Tilóhman C. J.

This is an action against a justice of the peace for an act done in the execution of his office.

The errors assigned are that the Court of Common Pleas declared that the notice given by the plaintiff to the defendant, prior to the commencement _of the suit, under the act of 21st March 1772, was legal and sufficient, when the said notice did not specify either the • kind of writ or process, the kind of action, or the place of abode of the attorney for the plaintiff. The* exception so far,as it relates.to the kind of writ or process, was abandoned on the argument, and very properly, because that point had been decided in th,e case of Mitchell v. Cowgill, at Sunbury, June 1811. In the same case I consider it as having been decided also, that it was unnecessary to give notice of the kind of action, and -that it was sufficient if notice was given that an action would be brought, and the cause of action clearly described. I shall not now go over the ground which was taken in that case, Iput refer to it in th'e 4th Volume of Binney’s Reports, p. 20.

It is not denied that the cause of the action which has been brought, was set forth with sufficient certainty, although ■ there were other causes of action not clearly described, on which no actions have been brought.

The only remaining objection to the notice is the manner is " which the place of abode of the plaintiff’s attorney is described, “ Thomas Baird, of Washington, is my attorney.” It is to be observed that in this respect the English statute of 24 Geo. 2. c. 44. and our act of assembly are not exactly alike. The statute directs that notice shall be given by the attorney or agent for the party who intends to cause the writ to be sued out. The act says that notice shall be given by the party, his attorney or agent, so that if the plaintiff should think proper to sue out a writ himself, as is sometimes áone in this country without employing any agent or attorney, it would be unnecessary to say any thing about the place of abode of the attorney, because the act did not require that a man should employ an attorney merely for the sake of giving notice where he lived. But if the plaintiff lived out of the county in which the suit is brought, perhaps it might be necessary to employ an attorney or agent within the county, and ^ive notice of his place of abode, because the object of the act was that the justice should receive such notice as should afford him a reasonable opportunity of tendering amends. In the present instance however it appears that he did employ an attorney, and therefore it was incumbent on him to give notice of his place of abode. The words of the act are “ on “ the back of which notice shall be endorsed the name of “such attorney or agent together with the place of his “ abode.” The objection is that there are many towns and many counties in different states called Washington. To be sure it would have been more certain, if it had been said, “ Thomas Baird, living in the town of Washington, in the “county of Washington, in the state of Pennsylvania.” But yet I cannot help thinking that “ Thomas Baird, of Wash- “ ington,” is sufficiently descriptive. In construing this kind of language it is fair to have recourse to the common understanding of the country. When a town and county have the same name, and the name generally is mentioned, the town is understood. When we speak of a person living in Philadelphia for instance, it is supposed that he lives in the city. So in Washington would imply the toxon of Washington, when two persons living in the county’ should use that expression. It is true there are other Washingtons in this state, and almost every state of the Union. But in construing this notice we must not lose sight of the place where the justice lived, against whom the action was to be brought.' He lived in the county of Washington, and therefore had no reason to suppose that any place out of that county was intended. The intent of the act of assembly was that the justice should have fair notice of the place of abode of the plaintiff’s attorney. I cannot suppose that in this case he was left under any doubt, and therefore the notice was sufficient. My opinion is that the judgment should be affirmed.

Ye ates J.

Three exceptions' have been taken to the validity of the notice served upon the plaintiff in error, previous to the institution of the suit against him‘for acts done by him in the execution of his office as a justice of the peace, under the act of assembly passed 21st March 1772. 1 Dall. St. Laws, 604.

The first is that the notice does not specify whether a summons or capias would be issued against him. I do not regard this as material to the justice, or that it would in any degree influence his conduct as- to the tender of amends. Besides, the propriety of issuing process of either kind would depend on the justice’s disposing of his freehold within the thirty days, which it would be impossible for the defendant in error to know when he served the notice.

The second exception is, that the kind of action is not specified, whether it would be trespass, case, debt &c. I consider the decision of this court in Mitchell v. Cowgill, in the Middle District, in May Term 1811, as having put this • question at rest. The same point was there made by the counsel and unanimously over-ruled by the court. An additional reason applies, in the present instance. The 1st section of the British statute of 24 Geo. 2. c. 44. expresses the act of notice to be by the attorney or agent for the party complaining, 7 Ruff. Stat. 389. But the first section of our law of the 21st of March 1772, speaks of the party his attorney or agent, either of whom may give the notice. It'cannot be supposed that the party himself would be conusant of the technical boundaries of actions; and therefore -all that the act requires of him is, that in his notice shall be clearly and explicitly contained his cause of action. This was fully done by the defendant in error in the written notice which he has subscribed, and therefore he has brought himself within the words and spirit of the acti

The last exception is that “ Thomas Baird of Washington, is my attorney,” was an uncertain designation of the place of his abode. But I have no difficulty in saying, that referring a justice of the peace of Washington county, to an attorney in Washington, would in common parlance be intended of the town of Washington, and that his place of residence was thereby sufficiently..described.

I am of opinion, that the judgment of the Court of' Common Pleas be affirmed.

Brackenridge J. concurred.

Judgment affirmed.