dissenting.
I find myself compelled to differ from the view taken by my brethren of the point made in this case, to the effect, that notice has not been given to the defendant in error, in terms of the Statute. And these are my reasons :
The main design and intention of the Legislature, in the passage of this Act, was to afford convenience of remedy to the citizen whose stock might be injured by a rail road company. This will not be disputed. It plainly proposed to do this in two ways: 1. By bringing jurisdiction over the injury, to the Courts of the county where that injury was committed. 2. By insuring simplicity, and perhaps economy, in the mode of proceeding.
As such a proceeding was not before proper to Justice’s Courts, there was propriety in prescribing the details which we find in the 2d section of this Act. And owing to the form of proceeding, method of proof, &c. in these Courts, it was reasonable that the person there availing himself of the Act,, should be required to commence his proceeding in fifteen days, from the time of the injury, and by such a form of notice as was furnished in that section.
But the results designed could be effected in the Superior and Inferior Courts, by a more general direction; and so, as I believe, the Legislature very properly contented itself in the 6th section, with the general declaration, that “ in all cases when an injured party shall claim damages exceeding: thirty dollars, suit shall be brought in the Superior or Inferior *257Court by -written notice, served upon the nearest agent or officer, &c;” and left the plaintiff to adopt such a form as fully, plainly and distinctly set forth his cause of ^complaint,, and informed the corporation of the term of Court at which it was required to answer.
In this section no form of notice is prescribed, as in the 2d section; not even the substantial requisites of such a form are specified. And why should a prescribed form have been-expressed in the one section, and excluded from the other, if the Legislature had not designed to dispense with it in the latter case ? It is fair, however, to infer from the whole Act, that a notice under the 6th section, should have, in substance, all the requisites of notice elsewhere prescribed in-the Act.. Hence, when any such notice containing these elementary requisites of time, place and circumstance — in cases where the damage shall exceed thirty dollars, and which are brought in the Superior or Inferior Courts, is served upon the agent or officer of the corporation nearest to the place of injury — in my opinion, suit is properly brought against, the corporation. The liberal spirit of the Act, in this-respect, will bo remarked even in the 2d section, where the, form of notice is made “ subject to such alterations and additions as the circumstances of the case may require.”
It is true, that the petition in this case may be said to- be: in the form of an "action on the case. And the plea of the defendant was filed upon the supposition, that the proceeding was in the nature of an action on the case at Common Law.. But if it be true, that this sixth section, pf the Statute does not positively require a given form, why should this constitute an objection, provided that the corporation receive notice-of time, place and circumstances, and the tribunal before which, and the time when it must appear to answer for the alleged injury, by such proceeding, as affectually as it would have received it, if the notice had been fashioned on that contained in the 2d section ?
The defendant unquestionably, in this case, has received *258such effectiial notice. Though the petition may be said to be in the form of an action on the case, yet, at the same time, it' plainly, fully and distinctly sets forth the cause of action' in accordance with the Judiciary Act of 1799; and so, in unusually plain terms of ordinary signification, it describes the injury, declares the time! and place, and by the process, gives notice of the Court at which appearance is required. It in this way combines notice in terms of ordinary and plain signification, with technical notice of the injury done; and thus, employs those terms which custom has made familiar to the profession as most apt and appropriate, plainly, fully and distinctly to set forth a cause of action. Yet, to this the defendant objects — in effect'objects, that the notice is too complete !
It is true, as I believe, that the intention of the Legislature was to dispense with process. But for whose benefit ? For the advantage of the person injured. In order to remedy the mischief of forcing him to carry his suit against the corporation from his residence and the place of the injury, to the distant county in which the principal place of business of the corporation might happen to be situated; and thus, to save time and expense to him, in his own attendance, and that of his witnesses, on Court, as well as to save costs by simplifying the proceedings. But if the plaintiff, the person injured, for whoso benefit this provision was made, choose to dispense with it, and to have process appended and made a part of his notice, does it lie in the mouth of the defendant object ?
As I have said, I do not deem the process necessary, nor formal service of it by the Sheriff, required by the Act. It was obviously the intention of the Legislature to obviate the’ inconvenience of bringing suit in the usual way, and to ac-c'omodate the mode of proceeding to the change as to jurisdiction, which it had made. The nearest agent of the corporation might not reside within the county where the injury was committed. The Act required the suit to be brought in that county. The Sheriff, therefore, would have difficulty in serv*259ing tbe process in the usual and regular way. Hence, the Act permitted service by notice, in such a case as that before us, and dispensed with the necessity of service by process. B.ut if the plaintiff choose to file his petition with the Clerk of the Court, and authorize him to annex a process, he thus plainly makes that officer (whose peculiar duty it is, in suits before his Court, to give notice of the term and time of the Court’s session,) his agent for the purpose of informing the defendant as to the time and place when and where answer is to be made.
For these reasons, I agree with the Counsel who so ably argued this case for the plaintiff in error, in thinking that the method of giving notice which he has adopted, is a substantial and reasonable compliance with the terms of this Statute, and is more in harmony with the forms of proceedings usual in the Superior Court.
It may be said that this Act should be construed strictly. Let this be granted. Still, that strict construction must be a reasonable construction. And according to the view which I take of this Statute, that which I have presented is the only reasonable construction thereof.