are not local and personal acts within the 5 & 6 Vict. c. 97.(1) Parish constables.]—These have also similar privileges.(*) Borough constables.]-Borough constables, under 5 & 6 Will. 4, c. 76, ss. 76, 133, are on the same footing regarding acts done within the borough, and also within the county where such borough is situated, as other constables. If the plaintiff discontinues, the defendant is entitled to full costs, under 5 & 6 Vict. c. 97, s. 2, and not merely to costs as between attorney and client (3) Where he is sued in replevin for an act done out of the borough, but within the county, he may, under the plea of non cepit, give the special matter in evidence.(*) 4. Revenue officers.]-When an action is brought against a revenue officer, acting under 8 & 9 Vict. c. 87, for a wrongful seizure, the judge may certify there was a probable cause for seizure, in which case the plaintiff will be entitled, besides the value of the goods, to not more than twopence damages, and to no costs.(5) The value of the goods means the value at the time of the seizure. () A calendar month's notice must be given of any action for anything done under the act, and it must state the name and place of abode of the plaintiff, and of his attorney or agent,() and at the trial the plaintiff can prove no other cause of action than what is stated in the notice.(8) An officer acting bonâ fide in execution of his duty is entitled to the notice.(") The defendant may tender amends(10) or pay money into court. (1) The action must be brought within six months after the cause of action arose, and the venue laid in the place where it arose; and the defendant may plead the general issue and give the (1) Barnett v. Cox, 9 Q. B. 617. (2) 5 & 6 Vict. c. 109, s. 15. (3) Maberley v. Titterton, 7 M. & W. 540. (6) Laugher v. Brefitt, 5 B. & Ald. 762. () 8 & 9 Vict. c. 87, s. 117. A prochein amy other than the one on the record may give the notice of action, De Goudouin v. Lewis, 10 A. & E. 117. (8) 8 & 9 Vict. c. 87, s. 118. (9) Daniel v. Wilson, 5 T. R. 1. (10) 8 & 9 Vict. c. 87, s. 119. (11) Ibid. s. 120. special matter in evidence thereunder, and if he succeed will be entitled to treble costs.(1) 5. Officers or other parties acting under statutes generally.] -There are many other public officers protected, in a similar manner to those already stated, from actions in respect of acts done under the authority of statutes.(2) The statute 5 & 6 Vict. c. 97, was passed with a view to induce uniformity in giving one calendar month's notice of action, (3) and in limiting the period within which the action might be brought to two years, or, in case of continuing damage, to one year, from the cessation of the damage;(4) but subsequent statutes have broken through the rule. (5) The same statute substituted other costs for the double and treble costs generally awarded to the successful defendant. () A person who is not within the meaning of such acts is not protected, however much he may have acted in good faith, or believed himself to be protected. (7) But it is enough that the defendant is an officer de facto under the act, (3) as a surveyor of highways informally appointed, () or the servant of a person who bonâ fide but erroneously believed himself to be the owner of a fishery;(10) but a bailiff, who acted under another who was not properly appointed, was held not entitled.(") The necessity of giving notice is not confined to actions for torts; it exists where a turnpike collector is sued for money had and received, (2) but not where there was a specific contract to execute works. (13) So, notice was not necessary where guardians of a parish were sued under a local act for work and labour.(14) But where a contractor, under the Board of Health Act, 11 & 12 Vict. c. 63, negligently (1) 8 & 9 Vict. c. 87, s. 121. (2) See some mentioned ante, p. 62. (3) 5 & 6 Vict. c. 97, s. 4. (*) Ibid. s. 5. (5) See ante, pp. 62 and 64. (*) See ante, p. 464. (7) Copland v. Powell, 1 Bing. 369; 8 Moore, 400; Jones v. Williams, 3 B. & C. 762; Hughes v. Buckland, 15 M. & W. 346; Lidster v. Barron, 9 A. & E, 654. (*) Ibid.; Braham v. Watkins, 16 M. & W. 77. (9) Huggins v. Waydey, 15 M. & W. 357. (10) Hughes v. Buckland, 15 M. & W. 346. (1) Tarrant v. Baker, 14 C. B. 199. dug a well, he was held entitled to notice of action.(1) And, as a general rule, to entitle a party to notice of action for a thing in pursuance of an Act, it is not necessary that he should, at the time of doing the act, be cognisant of the existence of the statute giving him such protection, or that he should be acting strictly in the execution of it.(*) Where one party was clerk to two public bodies, to one of which bodies notice was necessary, and it was addressed to the wrong body, the notice was held insufficient. (3) Where, after serving a notice of action, the action was discontinued and a new action commenced within the time limited, another defendant being added, it was held the original notice was sufficient. () Want of notice of action must in general be specially pleaded. (5) The costs of notice of action are allowed, unless the notice extends to a great length.(*) When the general issue is proper to be pleaded, the words "by statute" should be inserted in the margin.(7) (1) Newton v. Ellis, 5 E, & B. 115. (4) Jones v. Simpson, 1 C. & J. 174. (5) 5 & 6 Vict. c. 97; Rule Pl. T. T. 1853; Edwards v. Great Western Railway Company, 11 C. B. 588; Davey v. Warne, 14 M. & W. 199; Law v. Dodd, 17 L. J. 65, M. C.; 1 Exch. 845. (6) Edwards v. Great Western Railway Company, 12 C. B. 419; Kent v. Great Western Railway Company, 3 C. B. 714. (7) Rule Pl. 21 T. T. 1853. CHAPTER XI. PRISONERS. 1. Actions against prisoners. (f) Discharge by plaintiff's death, &c. 2. Actions against Keeper of Queen's Prison. (a) Removal of prisoners into Queen's Prison. PRISONERS are subject to the rules and regulations authorized by 5 & 6 Vict. c. 22, and 11 & 12 Vict. c. 7. The removal of a person from one part of a prison to another, in which he is not legally confined, is a trespass. (1) Prisoners are not entitled to obtain a habeas corpus, in order to come out of prison whenever they think proper to conduct proceedings in court. (2) And the wife of a prisoner is not entitled to conduct his case at Nisi Prius as his advocate.(3) A prisoner sues as in ordinary cases, and if he is nonsuited, he may be charged in execution for the costs. (*) 1. Actions against prisoners.]—An action against a prisoner commences with a writ of summons. (a) Holding prisoner to bail.]—Where the defendant is in custody of the sheriff on a civil account, a writ of capias may (1) Cobbett v. Grey, 4 Exch. 729; see also Stead v. Anderson, 1 L. M. & P. 109; 9 C. B. 262; Howard v. Hudson, 2 E. & B. 2. (2) Ford v. Graham, 10 C. B. 369; 1 L. M. & P. 604; Clark v. Smith, 3 C. B. 982. (3) Cobbett v. Hudson, 15 Q. B. 988. (4) Furnival v. Stringer, 3 Bing. N. C. 96; 5 Dowl. 195; see where he is liable to give security for costs, post "Security for Costs." be sued out on the usual affidavit, and a warrant taken with it to the sheriff's office. Where he is in the Queen's prison on a civil account, it seems, the only mode is for the bailiff who executes the capias to ascertain from the keeper of the Queen's prison when the defendant is likely to be discharged, and to take him thereupon under the capias.(1) Where the defendant has applied for his discharge to the Insolvent Court, and has been adjudged to be entitled to his discharge at a future time, the creditor may issue a capias, and detain him up to such time, but no longer. (2) If the defendant is in custody of the sheriff on a criminal account, he is detained in the same way; (3) but if he is in the custody of the keeper of the Queen's prison, leave must be obtained of the court or a judge to serve the capias.(*) Every rule or order of a judge directing the discharge of a defendant out of custody, upon special bail being put in and perfected, shall also direct a supersedeas to issue forthwith, where defendant is in a county gaol."(5) The Act 2 Will. 4, c. 39, prescribes the two following forms: (1.) Form of Writ of Capias. VICTORIA, &c.: To the Sheriff of [or to the Constable of Dover Castle, or to the Mayor and Bailiffs of Berwick-upon-Tweed, or as the case may be,] greeting. We command you [or as before or often we have commanded you] that you omit not by reason of any liberty in your bailiwick, but that you enter the same and take C. D., of if he shall be found in your bailiwick, and him safely keep, until he shall have given you bail, or made deposit with you according to law, in an action on promises, [or of debt, &c.] at the suit of A. B., or until the said C. D. shall by other lawful means be discharged from your custody. And we do further command you, that on execution hereof, you do deliver a copy hereof to the said C. D. And we do hereby require the said C. D. to take notice that within eight days after execution hereof on him, inclusive of the day of such execution, he should cause special bail to be put in for him in our Court of to (1) See Edwards v. Robertson, 5 M. & W. 520; 7 Dowl. 859. (2) 1 & 2 Vict. c. 110, s. 85. A remanded insolvent is not within this section, Turnor v. Darnell, 5 M. & W. 28; 1 Dowl. 846; and if a discharged insolvent is arrested by a capias under this section, no judge's order is necessary under sect. 3: Bilton v Clapperton, 9 M. & W. 473. (3) Where the governor of the prison refused to allow process to be served on the prisoner, see Danson v Le Capelain, 7 Exch. 667. See Granger v. Moore, 5 Dowl. 456. & Rule Fr. 123, H. T. 1853. |