CASES ARGUED AND DETERMINED IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER, IN Hilary Term, In the Forty-second Year of the Reign of GEORGE III. 1802. A BATTEN V. HARRISON Gent. One, &c. Jan. 27th. cuting a writ of inquiry on "Tuesday the 14th day of January in the 14th of RULE Nisi had been obtained, calling upon the Plaintiff to Notice of exeshew cause why a writ of inquiry executed in this cause should not be set aside for irregularity. The irregularity complained of was, that the notice of executing the writ of inquiry received by the Defendant was for "Tuesday the 14th day of stant," when January instant;" whereas the 14th of January fell on a Thursday, and on which day the writ of inquiry was in fact executed. 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 should not attend the inquiry, but did not point out to the Plaintiff's attorney what the irregularity was. Williams Serjt. now shewed cause against the rule, and contended that the Court would, by rejecting the word "Tuesday" as VOL. III. day" as surplusage, it appearing that the Defendant was not B surplusage, January fell on a Thursday, day the writ of inquiry was executed; the Court of C. B. refused to set and on which aside the execution of the writ of inquiry for this irregu larity, but rejected" Tuesmislead thereby. 1802. BATTEN v. surplusage, cure the irregularity, and observed that it was not necessary for the Plaintiff to have done more than mention the day of the month, without introducing the day of the week. He HARRISON. 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 “ Ladyday which will be in the year 1795," the same being delivered at Michaelmas 1795, to be sufficient to support an ejectment, the year 1795 being rejected as impossible. Clayton Serjt. contrà insisted that the Court would not go out of its way to cure an irregularity arising from negligence, and that if they must reject either the day of the month or the day of the week inserted in the notice in order to make it sensible, 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 misled 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 instead of Thursday, yet the notice being for " Tuesday the 14th of January instant,” a given day does seem to be thereby pointed out. The case 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 sustained any injury by his nonattendance at the execution of the writ of inquiry, I think it ought not to be set aside. ROOKE J. (a) If it were not for the case of Doe v. Kightley I should be disposed to listen to the objection taken to the execution of this writ of inquiry, however strict and technical it may be. But since that case the point does not appear to me to be altogether res integra, and I think therefore we are warranted in rejecting as surplusage the word "Tuesday" in this notice, in the same way as the Court of King's Bench rejected an impossible 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 some doubt upon this point. It is certainly of very great importance to parties that they should have (a) Mr. Justice Heath was prevented from attending in Court by indisposition until the 9th of February. due |