
    [Philadelphia,
    January, 2, 1826.]
    BATES against SHAW.
    IN ERROR.
    A notice to a justice of the peace signed by an agent or attorney need not be served by such agent or attorney personally, but may be served by a person employed by him for the purpose.
    Error to the District Court for the city and county of Philadelphia.
    
    It was an action of trespass, assault and battery, and false imprisonment, brought by the plaintiff William Bates, against John Shaw, Esq. a justice of the peace in the county of Philadelphia, for a wrong committed by him in the execution of his office. On the trial' of the cause the plaintiff produced a written notice of the intended suit, directed to the defendant and proved by the oath of Francis E. Brewster, to have been served by him on the defendant. The plaintiff then offered to read the notice to the jury, but the court rejected the evidence, because the notice was n.ot served either by the plaintiff himself or by Richard Peters, jun. or William Delaney, whose names were indorsed as his*attorneys. The act of assembly of the 21st 'March, 1772, (i Sm. L. 364,) sect. 1, enacts, that no writ shall be sued out against any justice of the peace, for any thing done by him in the execution of his office, “ until notice in writing of such intended suit shall have been delivered to him, or left at the usual place of his abode, by the party, his attorney or agent, who intends to sue, or cause the' same to be sued out, at least thirty days before the-issuing of the same, in which notice shall be clearly and explicitly contained, the cause of action which the said party hath, or claimeth to have, against such justice of the peace; on the back of which notice shall be indorsed, the name of such attorney or-agent, together with the place of his abode, who shall be entitled to the fee of twenty shillings for preparing and serving such notice and no more.” .
    
      Peters, for the plaintiff in error,
    contended that the no,tice was in conformity with the act of assembly, and was properly served. He cited Kidd v. Riddle, 2 Yeates, 444. Mitchell v. Cowden, 4 Binn. 20. Little v. Toland, 6 Binn. 83. Slocum v. Perkins, 3 Serg. & Rawle, 295. Luke v. Shaw, 5 Serg. & Rawle, 517.
    
      Mahany, contra.
    The act of assembly directs the notice to be delivered by the party, his agent, or attorney; but here .it was served by a sheriff’s officer, who was employed .for. the purpose, but was to no other purpose an agent, nor was his name signed as an agent. The law gives.a fee of two shillings to the agent for drawing and signing the notice. The justice ought to have an opportunity to tender amends to the person who serves the notice. This law has been construed favourably to the justices ; and it is held that its requisites must be substantially complied with. Slocum v. Perkins, 3 Serg. & Rawle, 295. Luke v. Shaw, 5 Serg. & Rawle, 517. Prior v. Craig, 5 Serg. & Rawle, 44. Jones v. Hughes, 5 Serg. & Rawle, 299.
    
   The opinion of the court was delivered by

Tilgiiman, C. J.

It is granted, that the form of the notice in question, was exactly according to the act of assembly;'and the only objection to the evidence is, that the- notice was delivered to the defendant by Brewster, who was not- the attorney of the plaintiff, but an officer of the sheriff, employed by the plaintiff for the special purpose of serving the notice; and not his agent for-any other purpose. The names of Peters and Delaney, attorneys for the plaintiff, with their places of abode, were indorsed on the notice. The object of this notice, was to inform the justice that a suit would be brought •against him by a certain person, and for a certain cause, -in order ..that he mighthave an opportunity of tendering reasonable amends; after which, if the plaintiff went on with his suit, he proceeded at his peril. Now, it was ’immaterial to the justice, by whom the notice was delivered, provided he received it thirty days before the issuing of the writ, because the name and" place of abode of the agent or attorney being made kno.wn to him by-an indorsement on the notice, he could be at no loss to whom to tender amends. It is true the act directs the notice to be delivered by the party his agent or attorney. But qui facit per alium, facit per se. So that the intent of-the law has been satisfied. But one reason has been assigned, for insisting on a literal compliance with the very words of the act, and that is, in order that the justice might have an opportunity of -tendering amends at the time he received the notice. But there is not much force in that reason. Because if the attorney himself delivers the notice, he is not bound to wáit until the justice considers, and determines, whether he shall tender any amends, or how.much. It is not be supposed, that an immediate determination could be taken on that subject. And the giving of the justice thirty days for reflection, shows, that an immediate determination was not expected. Neither has the justice the least reason to complain of being put to any hardship by this mode of serving the notice, (I mean by a messenger employed for the purpose,) seeing that he has thirty days for consideration, and knows where, and to whom, he may make his tender. This point has not been brought before any court, within my knowledge, before. But I am well satisfied, that it has not been the practice, for the attorney, or the party, to serve the notice in person, because, it has not been supposed that the law required it; and it would be extremely inconvenient to attorneys, especially in the country, if the law did require it. The plaintiff may, to be sure employ a person for his agent, who is not an attorney. But this would be dangerous, because the attorney at law' is naturally the person most confided in, and best qualified to judge whether .sufficienta mends are tendered. This act of assembly should be construed liberally for the protection of justices in matters of substance, but not converted into an instrument whereby a just cause of action may be defeated by nice formalities. I am of opinion that in the service of the notice offered in evidence, every thing was done which the act of assembly required. In rejecting the evidence, there was error therefore, for which the judgment should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  