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felony, should be examined and make oath, and the oath of CHAP. VI. one of them would not suffice. (y) If the principal reside on the premises and be at hand when the felony was committed, it HOSTILITIES. will suffice if he make the oath and be examined, and it is not also necessary for his servant or any other person to be examined,(~) though it would be otherwise if the principal were absent from home and a servant in charge. (a) With respect to servants, all those in charge should be examined ; (b) and a steward residing at a distance, although he have the general superintendence, will not in that case be the proper person to make oath, if there were labourers on the spot having the actual care of the premises. (c) But it has been recently held upon the present act, that the servant or servants, who, in the absence of a master, have the general care and superintendence of the property, and who represent him in his absence, and not all who have the special care under them of particular parts of the property contained in a dwelling-house or manufactory, are the proper servant or servants who, by the 7 & 8 Geo. 4, c. 31, s. 3, are requred to go before a justice and to state upon oath the names of the offenders, and to submit to examination touching the circumstances of the offence, and although there be even 160 other sub-servants having the care of particular parts, neither of them need appear before the justice, (d) though in extreme caution, it would be safer that all should make oath and tender their examinations.

With respect to the oath itself, it will be observed, that the act only requires the party making it to state the names of the offenders, if known, and therefore it is not now necessary to exclude or to swear negatively, that the deponent has no suspicion of the offender. (e) And although upon a prior act it was held that the oath should be in the disjunctive, that he did not know the offenders, or any of them, and that it would not suffice merely to state affirmatively, that the party swearing suspected that the offence had been committed by some person or persons to him unknown, without adding negatively, that he did

ANTICIPATION

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CHAP. VI. not know the offenders, or any or either of them. (f) But it has been held that it suffices, under the present act, to swear HOSTILITIES. that the deponent doth not know the offenders, (in the plural) without adding in the disjunctive "or offender." (g)

Suggested form of party's oath of a partial demolition of a dwelling-house and of damage to fixtures, furniture and goods.

As to the examination itself, the act merely requires that the principal or servants shall submit to the examination of the justice touching the circumstance of the offence. So that although the act is imperative as to the oath (and which cannot be dispensed with), it is rather for the magistrates to put any other questions, than for the parties to prepare or give in an examination in any certain form. (h) However, it will be advisable, as well for the owner and occupier of the house and all servants, to press upon, or at least to tender to the magistrate a full and accurate disclosure and account of the circumstances, and the subscribed forms of oath, and examination and recognizance may be adopted. (i) It has been held that the swearing before a justice to a deposition previously prepared, is a suffi

(f) Thurtell v. Inhabitants of Mutford, 3 East, R. 400; Rex v. Bishop's Sutton, 2 Stra. 1247; Trimmer v. Inhabitants of Mutford, 6 D. & R. 10.

(g) Lowe v. Inhabitants of Broxtowe, 3

Bar.& Adolp. 550.

(h) See Lord Tenterden's observations in Pellew v. Wonford, 9 B. & C. 131; and Lowe v. Inhabitants of Broxtowe, 3 Bar, & Adolp. 550.

(i) A. B. of, &c. maketh oath and saith, that a number of persons, exceeding twelve and more, being then and there riotously and tumultuously assembled together to the disturbance of the public peace, did, on the evening of Sunday last, the ninth day of instant, unlawfully make an attack upon the dwelling-house of, and then inhabited by, this deponent, situate in the parish of, and within the hundred of ——, in the county of, and did then and there unlawfully and with force and feloniously in part demolish and destroy the same, by then and there unlawfully and with force and feloniously breaking of the windows, and of the window frames thereof, and greatly damaging and injuring the door-way and stone-work and ——— shutters of the said dwelling-house, and by then and there, &c. [here describe very particularly any other act of part demolishing of the dwelling-house]; and that the same persons so then and there riotously and tumultuously assembled, did then and there unlawfully and with force and feloniously at the same time as aforesaid, greatly damage 20 fixtures, 100 articles of household furniture and 100 other goods of this deponent, then and there being in this deponent's said dwelling-house, contrary to the statute in such case made and provided. And this deponent further saith, that the damage to the said dwelling-house, so caused by the said felony and offence, amounts to the sum of 391. 78. 64d.; videlicet, 33l. 16s. part thereof for the said damage so done to the said windows, window-frames, shutters, doors, door-way and stone-work, [and the sum of 5l. 11s. 6d. for boarding up the said broken windows on the following day after the said felony was so committed, to prevent the persons riotously and tumultuously assembled as aforesaid from getting into the said dwelling-house of this deponent.] And this deponent further saith, that the said damage so feloniously done to this deponent's said fixtures, household furniture and other goods as aforesaid, then and still amounts to the sum of 401. and upwards. And this deponent further saith, that he doth not know the names or name, or the person or persons of or any particulars of or relating to the said persons who so riotously and tumultuously assembled as aforesaid, or either of them; nor doth he know the name or names, or the person or persons, or any particulars of or relating to the said persons who so unlawfully and with force and feloniously so in part demolished his said house as aforesaid and committed the said other damages and offence, or any or either of them. Sworn at the Police-office in the town and county of the town of Nottingham aforesaid, this 15th day of Oct. 1831, before me, J. H. Barker, Mayor.

A. B.

Semble, this damage, though included in the oath, is not recoverable under the act.

cient submission to examination within the meaning of the pre- CHAP. VI. sent act, if the justice require nothing further. (k)

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With respect to the recognizance, the party injured and his HOSTILITIES. servant should take care to enter into such a recognizance, as under the terms of the act may be required by the magistrate, and which it should seem must be proved on the trial of an action against the hundred. (7)

The eighth section prescribes and gives the form of the notice

to wit.-The examination of A. B. of

and upon his oath, this day of

Esquire, taken upon his submission, Suggested form before me, ', A. D. E. F. Esquire, one of an examinaof his Majesty's justices of the peace in and for the county of aforesaid, and tion taken residing near to and having jurisdiction over the place where the offence hereunder before a justice stated hath been committed, and also taken in pursuance of the statute in that case of the peace. made and provided.

Which said A. B. saith, that, &c. here the substance of the oath as in the above form must at all events be stated, together with his answer to all questions put to him by the magistrate connected with or likely to lead to the discovery and apprehension of the offenders, sec sect. 3 of 7 & 8 Geo. IV. c. 31, and id. chap. 30, sect. 8; and Lowe v. The Hundred of Broxtowe, Bar.& Adolph. 550. The deposition of the party should be stated as nearly as possible in the very words he has used. Then he should subscribe his name to the deposition, though that is not absolutely necessary. Taken before me, the day and year above-mentioned.

E. F.

N. B. The following memorandum may as well be subscribed to the affidavit, and signed by the magistrate :

Be it remembered, that the above-named A. B., previously to making the foregoing Justice's memodeposition, expressed his readiness and submission to my examining him upon his oath randum of a touching the circumstances of the said offence, according to the statute in that case party's readimade and provided; and then became bound by recognizance before me te prosecute the offenders, when apprehended, in 50l. This 15th Oct. A. D. 1831.

ness to submit to be examined City of Coventry, (to wit).-Be it remembered, that on the day of, in on oath and of the third year of the reign of our Sovereign Lord William the Fourth, of the United his having Kingdom of Great Britain and Ireland King, Defender of the Faith, &c. A. B. of, &c. entered into his ribbon manufacturer and housekeeper, personally came before us, E. F. and G. H., recognizance. Esqrs. two of the justices of our said lord the king, appointed to keep the peace within Form of a rethe said city and county of the same city, and acknowledged himself to owe to our said cognizance to lord the king the sum of 401. of lawful money of Great Britain, to be made and levied prosecute for of his goods and chattels, lands and tenements, to the use of our said lord the king, his heirs and successors, in case default shall be made in the condition following. Whereas divers persons unlawfully, riotously and tumultuously did, on the instant, in the parish of —, in the said assemble together to the disturbance of apprehended. the public peace; and being so unlawfully, riotously and tumultuously assembled together as aforesaid, did then and there unlawfully, feloniously and with force begin to demolish, pull down and destroy, and did feloniously in part demolish, pull down, and destroy and damage a certain dwelling-house of the said A. B., there situate, contrary to the statute in such case made and provided. Now the condition of this recognizance is such, that if the above bounden A. B. shall and do prosecute, according to law, the offenders when apprehended for the said offence, then this recognizance to be void.

Town and County of the Town of Nottingham, to wit.-Take notice that you A. B. are bound in the sum of fifty pounds to prosecute, when apprehended, the person or persons guilty of demolishing or beginning to demolish your house and premises in the said town and county of the town of Nottingham, on the ninth day of October instant. Dated this fifteenth day of October, one thousand, eight hundred and thirty-one. J. H. BARKER, Justice of the Peace,

(k) Lowe v. Inhabitants of Broxtowe, 3 Bar.& Adolp. 550.

(1) Noy, 150; 2 Stark. Evid. 679.

such felony in case the offenders should be

Form of justice's notice to the party of his having entered into a recognizance to prosecute.

CHAP. VI. in writing of the claim of compensation according to the annexed schedule when the damages do not exceed thirty pounds.

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HOSTILITIES.

II. Preliminary

contracts, after

Notices, de

cases of con

tracts.

Demand of

goods of an in

II. We have in the last chapter stated some cases of contract, steps in cases of when it is necessary to perform a condition precedent, give inception of an notice of an event, or make a request, in order to complete a injury. cause of action. There is another instance arising out of a mands, &c. in contract, and when the defendant has refused to perform it, in which it may be necessary to make a demand, somewhat resembling that to constitute a conversion, and support an action of trover. Thus, if an infant have purchased goods not fant or married necessaries, and when applied to for payment they remain in his possession, and thereupon he sets up his infancy, and insists on that account that he is not obliged to pay for them; in such case, the vendor could not sue him upon the contract, but he may demand the goods, and support an action of detinue for the recovery of them or their value, and such demand may be in the form subscribed. (m) And the same doctrine would, it is assumed, extend to a contract for goods made by a married woman, and afterwards disaffirmed by her husband. (n)

woman.

Demand to create a forfeiture

between landlord and tenant.

Form of notice

claiming return of goods from an infant.

In general no actual entry or demand is necessary to take advantage of a forfeiture, (o) and by the 4th Geo. 2, c. 28, sec. 2, if half a year's rent be in arrear, and a clause of re-entry has been reserved, and there be no sufficient distress on the premises countervailing the arrears then due, an action of ejectment may be supported without any formal demand or entry, although required by the terms of the lease. (p) But an eject

(m) Mills v. Graham, 1 New R. 148; it is advisable to declare in such action in detinue and debt, as defendant may have used some of the goods as necessaries, though purchased for trading, Turberville v. Whitehouse, 1 Car. & P. 94; and Maddox v. Mills, 1 M. & S. 7S8.

(n) Co. Lit. 351, b.; Blackstone v. Martin, 3 Bulst. 308. Thus if a feme

covert purchase goods, and her husband deny her authority, and his own liability, a demand should be made; and after evidence of his dissent, the goods may be retaken or recovered; and if wrongfully detained, the same would not afterwards be liable to be taken in execution for a debt of the husband.

Dated, &c.

Sir,- Whereas, on, &c. you obtained from me certain goods, viz. &c. (describing them) under colour and pretence of purchasing and paying for them, on, &c. and you have refused to pay for the same, under the pretence of your being, or having been an infant at the time you obtained the same, and you have refused to pay for the same, or to return them; Now therefore, I hereby demand and require you immediately to pay for the same, or in case you refuse to do so, and that you were or are an infant at the time you obtained the said goods, then I hereby demand and require you immediately to return, and now to deliver the said goods to me, or I shall immediately commence an action to recover the same or their value.

(o) Goodnight v. Cator, 2 Dougl. 477, ante, 480, 481, 482, 572, 573.

(p) Doe d. Scholefield v. Alexander, 2 Maule & S. 525; Doe d. Lawrence v.

Shawcross, 3 B. & Cres. 754; 5 D. & R. 711, S. C.; Doe d. Harris v. Masters, 2 B. & C. 490; 4 D. & R. 45, S. C.; and see Chitty's Col. Stat. 667.

OF

ment founded on that statute cannot be maintained when CHAP. VI. ANTICIPATION there is sufficient distress on the premises; (q) and therefore, frequently when there is a clause of re-entry in a lease, in case HOSTILITIES. the rent is not paid within 21 days, or other specified time, after a quarter day, the best course is to proceed at common law, by demanding the exact rent in arrear on the 21st day, for half an hour before sunset, at the door of the demised house, or other most notorious part of the premises, somewhat with the same form as in case of an entry to avoid a fine. (r)

other cases of contracts, and

in cases of contracts to indemnify.

The same rules and suggestions should be observed in all Notices, &c. in other cases of contracts, when it may be necessary or expedient to give any notice, or to make any request essential, to be afterwards proved. (s) Where a person is under a covenant or contract for good title, or for quiet enjoyment of sold or demised property, or is under an express or implied contract to indemnify, and a claim and proceedings have been instituted at the suit of a third person, against the covenantee or party so indemnified, to recover the estate, or otherwise to affect him, it is expedient and advisable, though not absolutely necessary, to give the covenantor notice of the adverse claim and proceedings, and require him to protect the title, and afford means of resisting the claim, or that he will ultimately be sued upon his covenant, and to compel compensation for all loss, damages, expenses, and trouble that the covenantee may sustain. (t) The purpose of giving notice, is not in order to give a ground of action, but if a demand be made, which the person indemnifying is bound to pay, and notice be given to him, and he refuse to defend the action, in consequence of which the person to be indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action was not bound to pay the money. (u) In a recent case, where a vendor had conveyed premises to a purchaser, and covenanted for good title, and afterwards an action of formedon was brought against the purchaser by a party having a better title, and the purchaser compromised such suit for 5007., it was held that such purchaser, in an action against the vendor for the breach of his covenant for good title, might recover the whole

(q) Doe d. Foster v. Wandless, 7 T. R.

117.

(r) See directions, ante, 480. (s) See the preceding chapter, ante, 493 to 499.

(t) Duffield v. Scott, 3 T. R. 374;

Smith v. Compton, 3 Bar. & Adolp. 407.

(u) Per Buller, J. in Duffield v. Scott, 3 Term Rep. 374; and per Parke, J. in Smith v. Compton, 3 Bar. & Adolp. 408,

409.