¶1dissented. It has never been decided that á parol notice was sufficient-, in a cáse like the present, andlaih *429of opinion that it should have been in writing. If the notice' is to have any influence upon the right of the party, it should be given in such form as fully to apprise the person receiving it of what is required of him, and the consequences which are to follow, if he neglects to take upon himself the defence of the suit. A verbal notice may be misapprehended by the person to whom it is addressed ; and without any intentional error, may be proved in a very different form from that in which it was actually delivered. It should be in writing, not only for thp purpose of avoiding those consequences, but to enable the party to examine it deliberately, and consult his counsel on the proper course to be pursued. In ordinary legal proceedings, however trifling may be the consequences of neglecting the warning, no person is allowed to be prejudiced, either in his action or defence, by a mere verbal notice. If this is a proper regulation, in relation to proceedings after the parties have appeared in court, it would seem to be still more appropriate, where the object of the notice is to call on the party to appear in court, and take on himself the defence of an action which has been instituted against his grantee. This is not like a notice which will sometimes affect the title of a party by showing it tainted with fraud. In those cases notice only means knowledge of a particular fact, which .shows that the party did not act in good faith; and in general, it is a matter of no moment in xvhat form the information was received, or from xvhat source it xvas derived. But here the notice, if it is to have any effect, is in itself a legal proceeding. It advises the warrantor that the title xvhich he professed to grant is called in question; that another person claims the land by a paramount title, and has commenced a suit to recover it; and calls upon the grantor to appear in court and defend the title. It is similar in character to the notice or xx'arning by which an action is commenced; and which, if notin the form of legal process served by a public officer, must at least be in xvriting.
¶2In Gilbert v. The Columbia Turnpike Co. 4 Johns. Cas. 107, the court say that “ a notice in legal proceedings means a written noticeand it was one of the grounds on which the proceedings were quashed, that it did not appear that the *430notice which had been given was in writing. It was added, jn that case, that the necessity of a written notice might be gathered from the statute which directed the notice, in certain cases, to be left at the dwelling house of the party. Although this additional reason for the decision was mentioned, I think the court intended to assert the salutary principle, that' the right of a party could not be prejudiced by legal proceedings, unless the notice required by law was given in writing. ■ If we look a little further into the nature of this proceeding, I think the insufficiency of a verbal notice will be more apparent. The modern practice of giving notice bears a strong analogy to the old method of vouching the grantor to warranty, when the tenant was sued in a real action. If the grantor did not appear voluntarily, a summons ad warrantizandum issued, informing him of the pendency of the suit, and requiring him to appear and warrant the land to. the tenant; and this writ was served by the sheriff. Real actions have every where fallen much into disuse 'óf late years, and in this státe most of them have been abolished. The practice of giving notice when the tenant is sued in the action of ejectment, seems to have been suggested by the old process of voucher and summons ad warrantizandum. And as in the one case the right of the grantor could only be asserted by means of a writ served by a public officer, he ought not in the other to be prejudiced by any thing less definite and formal] than a writing, which shall advise him of what has been done, and what he is required to do.
¶3Whatever may be the rule in relation to warranties on the sale of chattels, I think it against legal analogies, and utterly unsafe in practice to give any effect to a verbal notice of this kind in an action for the recovery of real estate. Without examining the other questions made on the trial, I am of opinion that the notice was insufficient, and that the verdict ought therefore to be set aside..