French (Hague v.)

Frontine v. Froft

Froft (Frontine v.)

579 Fulwood v. Annis

CASE S

ARGUED AND DETERMINED

IN

THE COURTS OF COMMON PLEAS

AND

EXCHEQUER CHAMBER,

IN

Hilary Term,

In the Forty-fecond Year of the Reign of GEORGE III.

BATTEN V. HARRISON Gent. One, &c.

1802.

Jan. 27th.

enquiry on

14th of January

RULE Nifi had been obtained, calling upon the Plaintiff to Notice of exeA fhew cause why a writ of inquiry executed in this caufe cuting a writ of fhould not be fet afide for irregularity. The irregularity complained of was, that the notice of executing the writ of inquiry received by the Defendant was for "Tucfday the 14th day of January inftant;" whereas the 14th of January fell on a Thurf day, and on which day the writ of inquiry was in fact exccuted. It appeared that on the morning of Thursday the 14th the Plaintiff's attorney met the Defendant, who told him that his notice was irregular and he thould not attend the inquiry, but did not point out to the Plaintiff's attorney what the irregularity

was.

Williams Serjt. now fhewed caufe against the rule, and contended that the Court would, by rejecting the word " Turfday" as

"Tuesday the
January in-
14th day of
tant," when the
fell on a Thurf-
day, and on
writ of enquiry
was executed;
refufed to fet

which day the

theCourt of C.B.

tion of the writ
of enquiry for
this i
s irregularity,
but rejected

"Tuesday" as furplutage, it ap

pearing that the Defendant was not misled thereby,

VOL. III.

B

furplufage,

1802.

BATTEN

บ.

HARRISON.

furplufage, cure the irregularity, and obferved that it was not neceffary for the Plaintiff to have done more than mention the day of the month, without introducing the day of the week. He cited Doe d. Duke of Bedford v. Kightley, 7 Term Rep. 63. where the Court of King's Bench held a notice to quit at "Lady-day which will be in the year 1795," the fame being delivered at Michaelmas 1795, to be fufficient to fupport an ejectment, the year 1795 being rejected as impoffible.

Clayton Serjt. contrà insisted that the Court would not go out of its way to cure an irregularity arifing from' negligence, and that if they must reject either the day of the month or the day of the week inferted in the notice in order to make it fenfible, they would not reject that which would operate as a punishment upon the Defendant who had not been irregular.

Lord ALVANLEY Ch. J. It is clear that the Defendant was not mifled by this error in the notice, but that relying on the irregularity he neglected to attend the execution of this writ of inquiry. But though Tuesday was by a clerical mistake introduced inftead of Thursday, yet the notice being for " Tuesday the 14th of January inftant," a given day does feem to be thereby pointed out. The cafe of the notice to quit appears to me a very strong authority in favour of our rejection of the word "Tuesday," and thus making it a regular notice of a writ of inquiry to be executed on the 14th of January. Therefore as the Defendant is not stated to have fuftained any injury by his nonattendance at the execution of the writ of inquiry, I think it ought not to be fet afide.

ROOKE J. (a) If it were not for the cafe of Doe v. Kightley I fhould be difpofed to liften to the objection taken to the execution of this writ of inquiry, however ftrict and technical it may be. But fince that cafe the point does not appear to me to be altogether res integra, and I think therefore we are warranted in rejecting as furplufage the word "Tuesday" in this notice, in the fame way as the Court of King's Bench rejected an impoffible year in a notice to quit in order to support an ejectment. The day of the week need not have been introduced into the notice, and if rejected will leave it a good notice for the 14th of January.

CHAMBRE J. I entertain fome doubt upon this point. It is certainly of very great importance to parties that they should have

(a) Mr. Juftice Heath was prevented from attending in Court by indifpofition until the 9th of February.

due