in appointing the deputy which is necessary to the execution of the authority itself. Per CURIAM: Judgment for the plaintiff. COOK v. LOVELAND. JORY . ORCHARD, If a plaintiff's attorney previous to bringing an action for a distress under the warrant of a magistrate, make out two papers precisely similar, purporting to be demands of a copy of the warrant pursuant to statute and sign both for his client, and then deliver one to defendant, the other will be sufficient evidence at the trial. TRESPASS for taking and driving away the plaintiff's cattle. The cause was tried before GROSE, J. at the last Summer assizes for Cornwall, when it appeared that the defendant took the cattle as a distress for non-payment of a poor-rate, by virtue of a warrant from a magistrate, which was produced and read. The counsel for the defendant then called on the plaintiff to prove a demand of a copy of the warrant pursuant to 24 Geo. II. c. 44, s. 6, upon which a paper was produced by a witness, who swore that it was a copy of the demand of the warrant. It was objected, however, that such copy could not be read in evidence without proof of notice given to the defendant to produce the original: in answer to which, it was shewn, that the plaintiff's attorney intending to deliver a demand under the above Act, made out two papers for that purpose precisely to the same effect, and signed. them both for his client; one of which he delivered to the defendant, and the other, which was the paper now produced, he kept in his own possession. This the learned Judge refused to receive, That section enacts, "that 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 anything done in obedience to any warrant under the hand or seal of any Justice of the Peace, until demand hath been made or left at the usual place of his abode by the party or parties intend 1799. Nov. 18. [ 39 ] JORY v. ORCHARD. [40] [41] because no notice had been given to produce the demand deliv ered to the defendant, which he thought the best evidence; accordingly he directed a nonsuit. A rule nisi having been obtained upon a former day for setting aside this nonsuit, Bayley, Serjt. now shewed cause: He contended that the demand left with the defendant ought to have been produced, or notice given to produce it.] Lens, Serjt. in support of the rule: The question is, whether the paper produced were in fact a copy, or whether it were not as much an original as that delivered to the defendant. The analogy to be drawn from the case of a man writing two letters precisely to the same effect, signing both, and sending one to his correspondent, and retaining the other, is in favour of the plaintiff, for I contend, that the letter so retained would be of equal validity with that which was sent. Here two originals were created, one of which was delivered to the defendant, and the other was kept for the purpose of being made evidence. It is like the case of a notice to quit, where a duplicate is always admitted as evidence. LORD ELDON, Ch. J.: With respect to the only question which arose at nisi prius, namely, whether this paper is to be considered as a copy of the original notice, or as a duplicate original, the strong inclination of my opinion is, that it is a duplicate original which, under the circumstances of the case, afforded evidence enough for the plaintiff to insist that the trial should proceed. I have looked into the Act of Parliament with a view to discover a ground on which any distinction may be founded between the notice required by the first section, to be given to justices of the peace previous to the commencement of an action against them, and the demand required by the sixth section; but without success. Unless I am mistaken, it is the usual course in actions against justices of the peace to produce a duplicate original; and the same thing is done with respect to notices to quit. It is true, that a notice to a justice of the peace need not be signed either by the plaintiff or his attorney; though on the back of it the name and place of abode of the attorney must be indorsed; but it must have certain specified contents, and the production of a copy, or duplicate of that notice therefore is not the very best evidence to prove that the notice had the contents specified in the Act. So a duplicate of a notice to quit is not the very best evidence of the contents of the notice delivered; for in that case also the contents may be proved to a certainty by the production of the notice itself, and the supposed duplicate original may be inaccurate. I do not see on what ground the distinction between those cases and this can be supported, the plaintiff having shewn, that the paper produced was signed in the manner required by the Act. The practice of allowing duplicates of this kind to be given in evidence, seems to be sanctioned by this principle, that the original delivered being in the hands of the defendant, it is in his power to contradict the duplicate original, by producing the other if they vary. We cannot hold the paper produced in this case to be insufficient, without overturning the practice in actions against magistrates, and in cases of notices to quit, unless I mistake as to what that practice is conceiving it to be as I have stated, I think this nonsuit cannot be supported. BULLER, J.: I am confident that this question has often arisen and been decided at nisi prius. But points of this kind pass unnoticed unless afterwards moved in Court. The attorney in this case made two copies of the paper, one of which he meant to deliver; he signed both, and it was indifferent which of them he delivered, for they were both originals. It appears clearly from the report that the nonsuit was directed on the ground of the paper produced in evidence being a copy; but I think it clear, that both the papers were originals. With respect to the second point, I agree with my brother Bayley, that if any thing appear upon the report which would be the cause of a nonsuit at the second trial, the Court will take it into consideration, though not expressly reserved. But the statute in question not being a penal Act, the Court are not bound to construe it strictly. I think, JORY v. ORCHARD. [ *42 ] JORY v. ORCHARD. therefore, the demand being signed by the plaintiff's attorney for him, is within the meaning of the statute, a demand signed by the plaintiff. HEATH, J.: I am of the same opinion. In principle I cannot distinguish this case from that of a duplicate notice to quit, which is received in evidence. ROOKE, J.: I confess, that I cannot make up my mind to agree with my Lord Chief Justice and my brothers. The Act requires this demand to be signed. In the other cases which have been mentioned, both the notice delivered, and the duplicate retained, may be considered as originals. But here something more is to be done beyond the mere production of the paper; the signature is to be proved; and how that is to be proved, by shewing that another paper was signed by the party, I do not perceive. I think that the plaintiff should have given notice to produce the original demand before he could entitle himself to give the counterpart in evidence. Rule absolute. 1800. Jan. 27. [59] C. P. HILARY TERM. KIDD v. RAWLINSON. The goods of A. being taken in execution and put up to sale, B. became the purchaser and took a bill of sale of the sheriff, but permitted A. to continue in possession; A. then executed another bill of sale of the same goods to C. a creditor, under which the latter took possession ; whereupon B. brought an action against C. for the goods. Held, that the first bill of sale was valid, and that B. was therefore entitled to recover.t THIS was an action for money had and received. An execution having issued against the goods of one Aburn For a modern case in which the principles of the common law as to bills of sale are discussed, see Cookson v. Swire (1884) 9 App. Ca. 653; 54 KIDD v. who kept a public house, his furniture was taken and put up to sale by the Sheriff of Surrey; the plaintiff, who was Aburn's RAWLINSON. brother-in-law, but not a creditor, became the purchaser, and a bill of sale was made out to him, dated 13th of November, 1798; Aburn was by him permitted to continue in possession of the goods in order that he might be able to carry on his business, but being soon after taken in execution and committed to prison, he executed a bill of sale of them, dated 11th of March, 1799, to the defendant, to whom he was indebted in the sum of 16l. 5s.; the defendant having taken possession under this last bill of sale, received a notice from the plaintiff not to dispose of the goods, stating his prior title; on the 14th of March the landlord of the premises authorised the defendant to distrain to the amount of 12. 10s. for rent due from Aburn for two quarters, which the defendant accordingly paid, and on the 26th of the same month sold the goods for 26l. 14s. 6d. The expenses of the bill of sale to the defendant, of keeping possession, and of the auction added to the rent advanced by the defendant, amounted to 261. 4s. 8d.; leaving a balance of 9s. 10d.; this being deducted from the debt due from Aburn to the defendant, the latter still remained a creditor of the former for 15l. 15s. 2d. The cause being tried before Lord ELDON, Ch. J. at the Westminster sittings after last Michaelmas Term, his Lordship put it to the jury to say, Whether the plaintiff had purchased the goods with a view to defeat any execution by any of the creditors of Aburn? And the jury being of opinion that the purchase was not made with that view, gave him a verdict for 14l. 4s. 6d. Marshall, Serjt. now moved for a rule nisi to set aside this verdict and enter a nonsuit: he contended that the bill of sale to *the plaintiff not having been accomplished and followed by possession, was fraudulent and void, and cited Edwards v. Harben, 2 Term Rep. 587, and Bamford v. Baron in a note to that case. LORD ELDON, Ch. J.: This action was brought to recover the produce of the sale † 1 R. R. 548. [60] |