ships, which might not be discovered till after their arrival in the West Indies; and before notice could be sent home, the time would be out for bringing an action. The mere naming of the treasurer as defendant, cannot bring the case within the 185th clause; for then no action, even on a contract made with the Company, in which the treasurer must be sued, could be brought without giving the notice there required, and within three months; which would be so manifestly absurd and unjust, that the Legislature could not have intended such a provision.

Erskine, Gibbs, and Giles in support of the rule. By making the treasurer of the Company the nominal defendant in the action, the plaintiffs admit that the act of the directors, of which they complain (and to which personally the defendant as treasurer was no party) was an act done “in "pursuance," or at least "under colour of the act;" for otherwise there was no authority given to sue the treasurer for the acts of the Company; and therefore the 14 days' notice ought to have been given under the 185th section. It is enough that the act complained of was done "nder "colour" of the statute; an expression which is used disjunctively with things done "in pursuance of" it, and was meant to include such acts as were not strictly justified by the statute; for there the defendant would not want to tender amends, which it was the object of the statute in requiring the notice to be given to enable him to do. It meant to hold out this opportunity of protecting themselves to the officers of the Company, who had bonâ fide meant to do the act complained of in their official characters under the powers of the statute, however mistaken they might turn out to be in their construction of it, to correct an error which the magnitude and complexity of the trust might subject them to. Here it was clear that the order of the di rectors, out of which the grievance complained of arose, was an act done in their official capacities; and the defendant being a person sued for a thing done in pursuance or under colour of the act, was therefore entitled to the notice required by s. 185: for s. 184 makes the Company a person, for the purpose of suing and being sued, by substituting the treasurer in lieu of the Company as the nominal party in all actions by or against it. The 185th section contains two

distinct

1804.

WALLACE

against SMITH.

[120]

1804.

WALLACE against Ѕигтн.

[ 121 ]

[122]

distinct provisions, which cannot be blended without manifest contradiction. By the first, the mayor, aldermen, and justices acting under that act, are entitled to the protection of the stat. 24 Geo. 2, c. 44; which requires one calendar month's notice to be given to a justice of peace before any action brought against him for any thing done èr officio. And then the clause goes on to enact, That no action shall be commenced against any person for any thing done in pursuance or under colour of the act, until 14 days' notice, &c. and under the former statute, the action may be brought within six calendar months after the act done; but in the latter statute it is limited to three. But if this clause had been meant to be confined to constables and others acting under the immediate directions of the magistrates, it would not have limited different periods.

Cur. ado. vult.

Lord ELLENBOROUGH, C. J. now delivered the opinion of the Court.

On looking at the 184th and 185th sections of the stat. 39 Gio. 3, c. 69, we think that notice ought to have been given to the treasurer of the Company, against whom the action is brought, who, by s. 184, is substituted in the place of the Company, for the purpose of suing in all actions in stituted by them, or of being sued for the recovery of any claim or demand upon or of any damages occasioned by the Company. The first part of the 185th section extends the provisions of the stat. 24 Geo. 2, c. 44, to the lord mayor, aldermen, and justices acting under the authority of this act. It does not merely give them, what they had before, the benefit of the stat. of Geo. 2; but as by the act in ques tion they had duties cast upon them to perform out of the limits of the city of London, it must be understood as applying to those cases: and it is to be observed, that that provision does not extend to constables. The clause then proeeeds to regard another class of persons. "Any person or persons" are very general and indefinite words; and the question is, Whether the Company are to have the benefit of them, sued as they are, and must be, in the person of their treasurer, and not in their own names? Is the treasu. rer a person within the meaning of the act? To say that he is not, would be to narrow the act, without any sufficient

reason.

reason.

He is ens legis for the purpose of being sued, &c. The clause does not say that "no action shall be commenced against any person or persons for any thing done by him or them, in pursuance or under colour of the act;" for then it might be said, that the grievance complained of was not done by the defendant, but by the Company. The question then is, Was this, a thing done by any person or persons "in pursuance or under colour of this act?" The notice certainly applies to all actions of trespass and tort. Whether it extend to assumpsit I should doubt, according to the case of Irving v. Wilson (a); where a revenue officer having seized goods as forfeited which were not liable to seizure, and having taken money of the owner to release them, an action for money had and received was brought, to recover it back again; to which objection was taken, that the officer had not had a month's notice before the bringing of the action under the stat. 23 Geo. 3, c. 70, s. 30. But the action was holden to be well brought, notwithstanding the want of such notice. And my Brother Grose considered that the statute extended only to actions of tresspass or tort, because the requiring of notice was to give the officer an opportunity of tendering amends; but that it did not extend to an action of assumpsit. There will be no repugnancy in the construction which we now put upon the act. For, taking the former part of the 185th clause to extend only to the lord mayor, aldermen, and justices, they will have all the privileges given them by the former satute; and other persons mentioned in the subsequent part will have their privileges under this act only. It has been argued, that this construction will deprive persons of their remedy whose ground of complaint is not discovered so as to be communicated to them till after three calendar months, when it will be too late to give notice. That argument certainly prevails to a considerable extent; but if the legislature have not provided for that, we cannot make a law for them, nor control a provision which in itself is clear and plain; because we cannot obviate all the difficulties which may arise out of it. If great inconvenience be likely to happen, that may form a ground of appli cation elsewhere. Here the clause expressly directs, "That

(a) 4 Term Rep. 485.

1804.

WALLACE

against SMITH

[123]

1804.

WALLACE against SMITH.

[124]

Friday, May 4th.

Where the

plaintiff gave the defendant, in a foreign country,

where both were resident, a bill of ex

dant upon a

person in Eng land, which

acceptance,

and the de

still resident

no action shall be commenced against any person for any thing done, in pursuance, or under colour of this act, until fourteen days' notice shall be thereof given." And the plaintiffs themselves have, by their own action and declara tion, so far put a construction upon the thing done as having been done under colour of the act, that they have made the treasurer defendant in a case, where the only grievance complained of is imputed to the company.

Rule absolute (a).

(a) The defendant's counsel immediately agreed to wave their advantage, and refer the individual injury complained of to arbitration.

POTTER and Another against BROWN.

THE plaintiffs declared as payees of a bill of exchange drawn by the defendant at Baltimore in America, on change drawn the 2d of September 1801, directed to Anthony Mangin of by the defen- London, whereby the defendant requested A. Mangin sixty days after sight to pay to the plaintiffs, or order, 1200l. sterling for value received; which bill was delivered by the debill was afterwards protestfendant to the plaintiffs. The plaintiff's then averred, that edherefor non- the bill was on the 23d of December 1801 presented by them for acceptance to A. Mangin, who refused to accept the fendant after- same; and thereupon they caused it to be protested for nonwards, while acceptance, according to the custom of merchants; by reason whereof the defendant became liable to pay the said sum upon request; and being so liable he promised to and obtained pay it. The declaration also contained the common moneycounts to which latter the defendant pleaded the general by the law of issue. And as to the first count he pleaded, that by a certain act of the Congress of the United States of America, of the certificate was 2d of December 1799, intitled, "An act to establish an unia bar to an ac form system of bankruptcy throughout the United States," tion here upon an implied it was enacted, that after the 1st of June 1800, if any merassumpsit to chant or other person residing within the U. S. actually pay the ausing the trade of merchandise, &c. by buying and selling, &c, should do certain acts (enumerating them) every such such non-ac- person should be deemed a bankrupt, provided the petition

abroad, became bankrupt there,

a certificate

of discharge

that state;

held that such

mount of the

bill in con

sequence of

ceptance in

England.

for

1801.

POTTER

against BROWN.

[125]

for the commission of bankrupt should be preferred within six months after the act of bankruptcy committed. And it was further enacted, that the judge of the district court. where the debtor then resided, or usually resided, at the time of committing the act of bankruptcy, upon petition of any one or more creditors, &c. should have power to appoint commissioners of the said bankrupt, upon affidavit of the petitioning creditor's debt, and giving bond to the bankrupt conditioned to prove it, &c.; which commissioners should have power after they had declared the party a bankrupt, to take into their possession all his estates real and personal, &c. in law equity, &c. till assignees should be appointed; and should give due notice of the bankruptcy, and appoint a place for the creditors to meet and chuse assignees; at which meeting the commissioners should admit the creditors to prove their debts; and when any creditor should reside at a distance, should allow the debt of such creditor to be proved, by oath or affirmation, made before some competent authority and duly certified; and should admit any person, duly authorised by letter of attorney from such creditor, to vote in the choice of the assignees; and should assign all the bankrupt's estate and effects, with all muniments, &c. to the assignees, &c. It then contained provisions for the surrender and examination of the bankrupt, who was required to execute, in due form, such assignment of his estate and effects as should be directed by the commissioners, to vest the same in the assignees, their heirs, executors, &c. in trust for the use of all and every the creditors who should prove their debts, &c. That in case any such bankrupt should afterwards be arrested, or impleaded, for or on account of any of the said debts, he might appear without bail, and plead the general issue, and give that act and the special matter in evidence: and the certificate of such bankrupt conforming, and the allowance thereof according to the directions of that act, should be allowed to be sufficient evidence, prima facie, of the party's being a bankrupt within the meaning of that [126] act, and of the commission, &c.; and a verdict should thereupon pass for the defendant, unless the plaintiff should prove that the certificate was obtained unfairly, and by fraud. It then set forth various regulations against fraud; VOL. V.

H

and