Lowrie v. Verner

The opinion of the Court was delivered by Sergeant, J. In the argument of this case, two errors have been relied on by the plaintiff in error. The first is, that the notice to the magistrate of the plaintiff’s intention to institute a suit was defective, because it informed him that the action would be brought in the court of common pleas of Alleghany county, whereas it was after-wards brought in the district court of Alleghany county. The great object of notice is to apprize the magistrate who it is that complains, and what the nature of the complaint is, in order that he may inform himself of the injury sustained, and prevent a suit by the payment of sufficient amends. For this purpose the act of 1792 requires the cause of action to be clearly and explicitly stated, and the name of the attorney or agent, together with the place of his abode, to be indorsed on the notice. These are indispensable requisites, which must be strictly complied with; and for defects in these points, suits against justices have, in repeated instances, failed! But in other matters, a substantial compliance with the act has been deemed sufficient, and nice and captious objections in matters of form have been overruled. [319] At least this been the spirit of the decisions in Pennsylvania, where the act is construed with more liberality than its prototype has been in England. Thus, in Mitchell v. Cowgill, 4 Binn. 20, the supreme court held in 1811, that the notice need not state the kind of writ that would be issued; though the contrary had been determined by an English judge in 1767, and confirmed by the king’s bench in 1798. 7 Term Rep. 631. The act does not require the plaintiff to state the court in which the suit will be brought: its insertion is superfluous, and a mistake in it cannot prove prejudicial to the defendant. If indeed the court of common pleas had no jurisdiction of the case, then some stress might be laid on the objection. It might be alleged that the defendant, knowing that a suit brought in the court mentioned in the notice was not maintainable, had omitted to tender amends. But the jurisdiction of these two courts, in original actions for claims exceeding 100 dollars, is concurrent: and, therefore, the defendant could not be led into such omission by the contents of the notice. I am therefore of opinion that there was no error in admitting the notice in evidence, and in charging the jury that the plaintiff could recover, notwithstanding a- different court was mentioned. Another error assigned is, that the court erred in instructing the jury they should not regard what they heard about a tender of amends, The privilege of tendering amends being the great object for which the act was passed, any defence on that score ought to be carefully preserved to the magistrate. But in the shape it was presented, it was liable to various objections. It does not appear that there was any evidence on the subject before the jury. An admission was made among counsel, prior to the swearing of the jury, but not restated to the jury as part of the evidence in the case after they were sworn. The jury are to be considered conusant only of what comes to their knowledge after their duty commences by their qualification to try the cause: and if the parties or their counsel neglect to bring material evidence before them regularly, if is their own fault. In addition to this, there was no plea of tender of amends; in which case only, does' the act of assembly authorize the court- and jury to pass upon it. But if it had been pleaded, and was regularly in evidence, it was not material. No sum of money short of the penalty could be a sufficient amends. In demands founded on torts and sounding in damages, any sum of money may be treated as amends, because the standard of damage is uncertain, depending on a variety of circumstances, and a party is as likely to recover on trial less than the sum tendered, as to recover more. But for a pecuniary debt, fixed and certain, a less sum of.money cannot be an equivalent. Thus, payment of a less sum of money can never be admitted as an accord and satisfaction of a greater sum due. 1 Stra. 426 Co. Lit. 212, b.; 5 East 232. But payment of any sum. accepted as satisfaction of damages for a personal injury, is sufficient. 1 Bac. Ab. 41. Here the 50 pounds is given by the act to the party grieved, and nothing [320] less can be a compensation for it. The defendant might have made a tender of that sum, and thereby relieved himself from costs, and that was the only amends that could be recognized as legal. Judgment affirmed.