strument imports a personal contract on his part. Pentz v. Stanton, 10 Wendell, 271. In contracts not under seal, if the agent intend to bind his principal and not himself, it will be sufficient, if it appear in such contract that he acts as agent. Andrews v. Estes, 2 Fairfield, 267; Shotwell v. M'Kown, 2 Southard, 828. Where, on the face of a contract, signed by an agent on behalf of his principal, it appears to be the intention

that it shall be the contract of the prin cipal, the agent will not be liable thereon, notwithstanding the principal resides in a foreign country. Rogers v. March, 33 Maine, 106.

An agent to whom as such, a contract is in terms made payable, may maintain an action upon it in his own name. Doe v. Thompson, 2 Foster, 217; Bird v. Daniel, 9 Alabama, 302.

*DELANEY v. FOX. Nov. 14.

[*166

The 1st sect. of the 1 & 2 Vict. c. 74 enables a landlord whose tenant refuses to give up possession on the tenancy being duly determined by a legal notice to quit, to give him notice, "in the form set forth in the schedule," of his intention to proceed to recover possession under tho act; and, provides, that, if the tenant shall not appear at the time and place appointed, and show reasonable cause why possession should not be given under the provisions of the act, upon proof of the holding and of the determination of the tenancy, &c., and upon proof of the service of the notice, and of the tenant's refusal to quit, the justices may issue their warrant, and give possession to the landlord.

-, [owner, or agent to

The form of notice given in the schedule begins "I, the owner, as the case may be], do hereby give you notice," &c., and intimates that the party giving it will, "onnext, the of the clock of the same day, at apply to Her Majesty's justices of the peace acting for the district of

day of

sessions assembled, to issue their warrant," &c.

at

in petty

By s. 3, the mere obtaining a warrant is declared to be a trespass, if the person to whom the warrant is granted had not at the time of granting it lawful right to the possession of the premises, although no entry should be made by virtue of the warrant.

And s. 6 enacts, that where the landlord, at the time of applying for the warrant, had lawful right to the possession of the premises, he shall not be deemed a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the act; but that the party aggrieved may bring an action on the case for such irregularity, or informality, in which the damage alleged to be sustained thereby shall be specially laid. A declaration stated that the plaintiff, after the passing of the act, was tenant to the defendant of certain premises, and that the defendant caused to be served upon her a notice (setting out the notice), which commenced thus, "I, J. D., of Bradford, in the county of York, attorney and agent for and on behalf of Gregory Fox, of, &c., farmer, do hereby give you notice," &c., and informed the plaintiff that "I, as attorney and agent for the said Gregory Fox, shall, on Tuesday, the 1st day of January next, at 11 o'clock of the same day, apply to Her Majesty's justices of the peace acting in and for the borough of Bradford (being, &c.), in petty sessions assembled, to issue their warrant," &c. The declaration then went on to state that the defendant, without the plaintiff having appeared before such justices, or having been heard to show cause, or had any means or opportunity to show cause, against the issuing of such warrant as in the notice mentioned, procured to be issued and executed on the plaintiff a certain warrant (setting it out), whereby and under the authority of which proceedings the plaintiff was forcibly cjected and expelled from the premises :

Held, that the notice was informal, for not mentioning the place in the borough of Bradford where the application was to be made; and also, come semble, for omitting to state that J. D., the person giving the notice, was agent to the owner of the premises.

Held, also, that the count, though somewhat informal, was a good count in trespass. The defendant pleaded, that the tenancy was duly determined by notice to quit before the happening of the matters in the count mentioned, and that, at the time of applying for the warrant, he had lawful right to the possession of the premises, which were wrongfully held over by the defendant:-Held, that the plea was a good answer to the action,-the 6th section of the statute

confining the tenant's remedy, where the landlord has lawful right to the possession, to an action upon the case founded on the special damage arising to him from the irregularity or informality of the proceeding, and no special damage being alleged in the count.

As to the right of a tenant to maintain trespass against his landlord for a forcible expulsion, where the landlord has a legal right to the possession of the premises,-quare?

THE first count of the declaration stated that the defendant broke and entered a certain dwelling-house *and premises of the plain*167] tiff, situate in Ebenezer Street, in the borough of Bradford, in the county of York, and numbered 12 in the said street, and then and there forcibly ejected and expelled the plaintiff therefrom, and had kept her forcibly ejected and expelled therefrom ever since.

Second count, that the plaintiff theretofore, and after the passing of a certain act of parliament made and passed in the year of our Lord 1838, and intituled "An act to facilitate the recovery of possession of tenements after due determination of the tenancy," was tenant to the defendant of a certain dwelling-house and premises, to wit, the dwellinghouse and premises in the said first count mentioned: yet the defendant caused to be served on the plaintiff, as such tenant as aforesaid, a written notice in the form, words, and figures following, viz. "I, Joseph Dawson, of Bradford, in the county of York, attorney and agent for and on behalf of Gregory Fox, of Great Horton, in the parish of Bradford aforesaid, farmer, do hereby give you notice, that, unless peaceable possession of the tenement or dwelling-house situate in Ebenezer Street, Bradford aforesaid, which was held of the said Gregory Fox under a tenancy from week to week, which was determined by notice to quit from the said Gregory Fox on the 17th day of December instant, and which tenement or dwelling-house is now held over and detained from the said Gregory Fox, be given to the said Gregory Fox, or to me on his behalf, on or before the expiration of seven clear days from the service of this notice, I, as attorney or agent for the said Gregory Fox, shall on Tuesday, the 1st day of January next, at eleven o'clock of the same day, apply to Her Majesty's justices of the peace acting in and for the borough of Bradford (being the district, division, or place in which the said tenement or dwelling-house is situate), in petty sessions assembled, to issue their warrant directing the *constables of the said dis*168] trict to enter and take possession of the said tenement or dwelling-house, and to eject any person therefrom. Dated this 21st day of December, 1855. S. Dawson. To William Delaney and Ellen Delaney;" and without giving to or serving on the plaintiff any other notice, and without the plaintiff having appeared before any such justices as in the said notice is mentioned, or having been in anywise heard to show cause, or had any means or opportunity of showing cause, against the issuing of such warrant as in the said notice is mentioned, procured to be issued, and caused to be executed on the plaintiff, according to the exigency thereof, a certain warrant under the hands and seals of two such justices as aforesaid, in the form, words, and figures following, that

is to say," Landlord and tenant order. Borough of Bradford, in the West Riding of Yorkshire. Whereas, a complaint in writing was made by Joseph Dawson, the legal agent of Gregory Fox, your landlord, before two of Her Majesty's justices of the peace in and for the said borough, that one Ellen Delaney and William Delaney, tenants of a certain tenement, consisting of a tenement or dwelling-house situate in Ebenezer Street, in the township of Bradford, in the said borough, held under a tenancy from week to week, under the rent of 28. 6d. per week and which said tenancy was determined by a notice to quit given by the said Gregory Fox on the 7th day of December, 1855; and that, on the 21st day of December, 1855, a notice in writing of the intention of the said Joseph Dawson, as such agent, to apply to recover possession of the said dwelling-house or tenement was duly served upon the said premises, which on this day was duly proved on oath before us: We, two of Her Majesty's justices of the peace in petty sessions assembled, acting in and for the said borough of Bradford, do authorize and command you on any day within thirty clear days *from the date hereof (ex[*169 cept on Sunday, Christmas day, and Good Friday), between the hours of nine in the forenoon and four in the afternoon, to enter (by force, if needful), and with or without the aid of the said Joseph Dawson, as such agent, or any other person or persons whom you may think requisite to call to your assistance, into and upon the said tenement, and to eject thereout any person, and of the said tenement full and peaceable possession to deliver to the said Joseph Dawson, as such agent as aforesaid. Given under our hands and seals, this 1st day of January, 1856. W. M., J. H. To William Leveratt and all other constables and peace officers acting for the borough of Bradford aforesaid:" whereby and by means and under the authority of which proceedings so taken as aforesaid by the defendant, the plaintiff was forcibly ejected and expelled from, and had ever since been kept forcibly ejected and expelled from her said dwelling-house and premises.

Pleas,-first (to the first count), liberum tenementum,-secondly (to the second count), that the said tenancy in the last count mentioned was a tenancy from week to week, so long as the defendant and the plaintiff should respectively please, at a rent of less than 207. per annum, that is to say, at the rent of 2s. 6d. per week, and upon which no fine was ever reserved or made payable; that the said tenancy was duly determined by due notice to quit, and had ended, before any of the matters or things in the last count mentioned had happened or taken place; and that he, the defendant, before and at the time of the happening and taking place of all and every of the matters and things in the last count mentioned, and at the time of applying for such warrant as is in the last count mentioned, had lawful right to the possession of the said dwelling-house and premises in the last count mentioned, which, at the time of the applying for the said

warrant, and at the times when all the *matters and things in *170] the last count mentioned respectively took place and happened, were wrongfully held over by the plaintiff after the expiration of the said tenancy in the last count mentioned.

The defendant also demurred to the second count, the ground of demurrer stated in the margin being," that, upon the face of the second count, all the proceedings appear to have been regular, and that no illegality in those proceedings is shown on the face of that count." Joinder.

The plaintiff joined and took issue on the pleas, and also demurred to the second plea, the ground of demurrer stated in the margin being, —that the plea does not answer the count, and shows no right to the possession in the defendant as upon a warrant from justices, and does not justify the grievances complained of." Joinder.

Milward, in support of the plaintiff's demurrer.(a)—The proceedings set out in the second count of the declaration are not in accordance with the requirements of the statute upon which they profess to be founded. The 1st section of 1 & 2 Viet. c. 74, recites that "it is expedient to provide for the more speedy and effectual recovery of the possession of premises unlawfully held over after the determination of the tenancy;" and enacts, that, "when and so soon as the term or interest of the tenant of any house, land, or other corporeal hereditaments held by him at will or for any term not exceeding seven years, either without being liable to the payment of any rent or at a *171] rent not exceeding the rate of 201. a year, and upon which no fine shall have been reserved or made payable, shall have ended, or shall have been duly determined by a legal notice to quit or otherwise, and such tenant, or (if such tenant do not actually occupy the premises, or only occupy a part thereof), any person by whom the same, or any part thereof, shall be then actually occupied, shall neglect or refuse to quit and deliver up possession of the premises, or of such part thereof respectively, it shall be lawful for the landlord of the said premises, or his agent, to cause the person so neglecting or refusing to quit and deliver up possession to be served (in the manner hereinafter mentioned) with a written notice, in the form set forth in the schedule to this act,' -not saying or to the like effect,—signed by the said landlord or his agent, of his intention to proceed to recover possession under the authority and according to the mode prescribed by this act; and, if the tenant or occupier shall not thereupon appear, at the time and place appointed, and show to the satisfaction of the justices hereinafter mentioned reasonable cause why possession should not be given under the

(a) The points marked for argument on the part of the plaintiff, were,-" that the second count is good, as the proceedings set out are not in accordance with the requirements of the statute 1 & 2 Vict. c. 74, and the schedule to the act; and that the plea demurred to is bad, as not affording any answer to the charge of irregularities in the proceedings, as complained of."

provisions of this act, and shall still neglect and refuse to deliver up possession of the premises, or of such part thereof of which he is then in possession, to the said landlord or his agent, it shall be lawful for such landlord or agent to give to such justices proof of the holding and of the end or other determination of the tenancy, with the time or manner thereof, and, where the title of the landlord has accrued since the letting of the premises, the right by which he claims the possession; and, upon proof of service of the notice, and of the neglect or refusal of the tenant or occupier, as the case may be, it shall be lawful for the justices acting for the district, division, or place within which the said premises, or any part thereof, shall be situate, in petty sessions assembled, or any two of them, to issue a warrant under their hands *and seals to the constables and peace-officers of the district, division, or place within which the said premises, or any part [*172 thereof, shall be situate, commanding them, within a period to be therein named, not less than twenty days nor more than thirty clear days from the date of such warrant, to enter (by force if needful) into the premises, and give possession of the same to such landlord or agent." The notice, therefore, must be in the precise form given in the schedule; and that form requires that the time and the place at which the application to the justices is to be made shall appear. Here, the notice neither mentions the place where the application is to be made, nor does it state that the application is made on behalf of the "owner" of the premises. [CRESSWELL, J.-Do you insist that a landlord who is not the owner of the premises, cannot take advantage of the statute?] No: the landlord would be the owner for that purpose. But it should be shown upon the face of the document that the party claiming is in that sense the owner. Whether it be material or not, is not the question: the statute requires it. The omission of the place, however, is the more important one. Seeing that it is competent to the justices to hold a petty session where they please, it is obviously necessary that full information of the place of assembly should be given to the tenant. [CRESSWELL, J.-Is not the mention of the town or village enough, without mentioning the sign of the public-house?] Bradford is a large place. Would it have been enough to say "in the west riding of the county of York?" [CRESSWELL, J.-Perhaps not.] Is the plaintiff bound to know where the justices hold their petty sessions in the borough of Bradford? The statute evidently intended that she should have full information on the subject. [CRESSWELL, J. -If the statute had intended that the notice should mention more than the town or borough, I should have expected to find the words more precise: they would probably have been *thus,-"atin the parish of -, in the borough of -"] It is submitted that the statute is imperative: if the form of the notice

[*173