. BIRD against Sir T. GUNSTON. The DECLARATION in trespass, for seizing a cart and The plaintiff's waggon, with two horses thereto, were in the turnpike road at the time that the defendant stopped them; but the waggon was then standing still, and the waggoner was fastening the casks contained in the waggon. The defendant, who was a Justice of the Peace, stopped the waggon and horses, with intent to convict the driver of the waggon in the penalty of 10s. under the statute of 13 Geo. III. ch. 78 (b); and the waggon and horses were detained till the next day. (a) See Tidd, 7th ed. 27. S. C. and 9 East, 365. 3 Camp. 242. 3 Maule and Selw. 580. 2 Price, 126. 2 H. Bla. 114. Holt. C. N. P. 458. And as to the form of the notice, see Tidd, 7th ed. 27, 8. (b) Sec. 61, by which it is enacted, that if the driver of any cart, dray, or waggon, shall ride upon such carriage in any street or highway, not having some other person on foot or on horseback to guide the same (such carriages as are conducted by some person holding the reins of the horse, excepted); or if the driver of any carriage whatever on any part of any street or highway, shall, by negligence or misbehaviour, cause any damage to any person or carriage passing upon such street, &c. or shall quit the highway and go on the other side of the hedge or fence inclosing the same, or wilfully be at such distance from such carriage, whilst it shall be passing upon such highway, that he cannot have the direction of the horses drawing the same, or shall by negligence or misbehaviour prevent or interrupt the free passage of any other carriage or person on the highways; or if the driver of any empty waggon, cart, or carriage, shall neglect to turn aside for any coach, chariot, chaise, loaded waggon, cart, or other loaded carriage, or if any person shall act as the driver of any such coach, post-chaise, or carriage, let for hire, or waggon, wain, or 1785. BIRD against GUNSTON, No notice was given to the defendant previous to the time of bringing the action (c). The question was, whether the action could be maintained without notice of action having been given. Gibbs, for plaintiff, contended that notice was not necessary. The act of the defendant was not done in execution of his office. He was not acting as a Justice. The act gives no authority to convict any person who is not riding in his cart. Here the plaintiff was standing still. cart, not having the owner's name, as before required, painted thereon, or shall refuse to discover the true Christian and surname of the owner; such driver, convicted of such offences, either by his own confession, the view of a justice, or by the oath of one witness before any justice for limit where such offence committed, shall, for every offence, forfeit not exceeding ten shillings, in case such driver shall not be owner; and in case the offender be owner of such carriage, then not exceeding twenty shillings; and in either of such cases shall, in default of payment, be committed to the house of correction for not exceeding one month, unless the same be sooner paid; and every driver offending in either of such cases, shall, by authority of this act, with or without any warrant, be apprehended by any person who shall see such offence committed, and shall be immediately delivered to a constable or peace officer, to be conveyed before some justice; and if such driver, in any such cases, shall refuse to discover his name, the justice of peace before whom taken, or to whom any such complaint is made, may commit him to the house of correction for not exceeding three months, or may proceed against him for the penalty, by a description of his person and the offence, and expressing in such proceedings that he refused to discover his name. (c) By the statute 24 Geo. 2, c. 44, s. 1, it is enacted, that no writ shall be sued out against, nor any copies of any process, at the suit of a subject, shall be served on any justice of the peace, for any thing by him done in the execution of his office, until notice in writing of such intended writ or process shall have been delivered to him, or left at the usual place of his abode, by the attorney or agent for 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 such party hath, or claimeth to have, against such justice of the peace; on the back of which notice shall be indorsed the name of such attorney or agent, together with the place of his abode, who shall be entitled to have the fee of twenty shillings for the preparing and serving such notice, and no more. SED PER CURIAM. When the Justice thinks he is acting in execution of his office, he is protected, otherwise the act would be nugatory: for a man needs no protection who acts strictly right. It is to give him the liberty of tendering amends when he finds he has made a mistake, that the statute requires a notice. Judgment for Defendant. 1785. BIRD against GUNSTON. 1785. MACKAY executor of DURNO, against MACKRETH, administrator of Sir JOHN SHELLEY, deceased, Mich. Term. assignee of his Father, Sir JOHN SHELLEY, also deceased. DECLARATION in covenant, reciting that by a Adeclaration in covenant at the cutor of a termor, for a breach of covenant after the death of the termor, should state the ter mor's interest and title in the ration stated certain indenture made the 8th November, 1748, suit of the exebetween the Hon. T. H. of the one part, and the aforesaid J. D. of the other part. The said T. H. for the considerations in the said indenture mentioned, did demise, lease, set, and to farm let unto the said J. D. (amongst other premises in the said indenture particularly mentioned and described), a certain messuage, &c. of him the said T. H. situate, &c. with the appurtenances, together also with the several goods, utensils, and things particularly mentioned, expressed, and contained in the schedule or inventory thereof thereunder written, to have and to hold the said messuage, &c. and premises so by the said indenture demised as aforesaid, with their and premises; and where a declathat A. B. demised premises to the testator of the plaintiff (viz. the termor, without stating that A. B. was seised in fee, or of any other estate), and that the plaintiff's testa tor demised them to C. D. and stated a breach of covenant after plaintiff's testator's death, it was held bad (a). Where a lessee has power to renew his term, upon giving six months notice of his intention, before its expiration, and upon his preparing a fresh lease, &c. he cannot, though he give notice of such his intention, demise the premises to another party beyond the expiration of the first term, unless he prepare such fresh lease, and get it, or endeavour to get it executed. An executor of a lessor, tenant from year to year, may declare for a breach of covenant in a lease for twenty-one years, granted by the lessor, though the breach was committed after the lessor's death. (a) 1 Saund. 112, n. 1 Clift, 121, 2. 1785. MACKAY exe against SIR JOHN every of their appurtenances, unto the said J. D. his executors, administrators, and assigns, from the cutor of DURNO Feast St. Michael the Archangel, then last past, for MACKRETH, and during the term of twenty one-years from thence administrator of next ensuing, and fully to be complete and ended, SHELLEY, &c. at and under certain rent and covenants in the said indenture mentioned. And the said T. H. did in and by the said indenture, for himself, his executors, administrators, and assigns, covenant, promise, and agree to and with the said J. D. his executors, administrators, and assigns, that (in case the said J. D. his executors, administrators, or assigns, or any of them, should be desirous of taking a further lease of the said premises by the said indenture demised, for a further term of twenty-one years, to commence upon the expiration of the said term of twentyone years by the said indenture granted, and should signify his or their desire in writing at any time six months before the expiration of the said term of twentyone years by the said indenture granted unto the said T. H. his executors, administrators, or assigns), he the said T. H. should and would, at such request, costs and charges of the said J. D. his executors, administrators, or assigns, demise and grant the said messuage or dwelling house, tenements, outhouses, and all and singular other the premises by the said indenture demised, with the appurtenances, to him the said J. D., his executors, administrators, and assigns, for a further term of twenty-one years, to commence from the expiration of the term of twenty-one years, by the said indenture granted, subject to the payment of such rent, and the performance of such covenants, as were and are in the said indenture mentioned and contained, on the part and behalf of the said J. D., his executors, administrators, and assigns, to be paid, kept, and performed. He the said J. D., his executors, administrators, or assigns, at the same time executing a counterpart of such further lease (as by 1785. against MACKAY executor of DURNO MACKRETH, of SIR JOHN SHELLEY, &c. Administrator |