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1833.

nisi to compute

WARREN v. Smith. Service of a rule FOLLETT, in moving to make absolute a rule to comon the mother of pute, said that there was some doubt about the sufficiency

of the service. The affidavit merely stated that the rule held sufficient. nisi was served by leaving it with the mother of the defen

dant, at his residence.

the defendant,
at his residence,

Per curiam. - That is sufficient.

Rule absolute.

case of a nonsuit cannot be

PREEDY v. MACFARLANE. Judgment as in Price moved for judgment as in case of a nonsuit, issue

having been joined last term, and notice of trial given for moved for in the the first Sittings in this term; but the cause had not been

set down.

notice of trial had been given.

VAUGHAN, B.—You cannot move in the same term in which default was made.

Bayley, B.-I am of the same opinion.

Rule refused.

Platt v. GREENE. Milner shewed cause against a rule which had been It is a question tion of the Mas- obtained by Wightman for referring a bill of costs back to ter, whether a

the Master. The cause was tried at the last Lancaster witness ought to be allowed for Assizes: the commission-day being Monday, and business the whole time of his attend ance at the assizes, or only a portion of it; but, where the Master has decided upon it, the Court will not review his decision.

1833.

PLATT

GREENE.

beginning on Tuesday morning. This cause stood 70 in the third list, and was not tried till Saturday evening, when the plaintiff got a verdict. The objection was to the allowance which had been made to the witnesses for their time. One was an attorney, and a material witness; he had been allowed eight days; others had been allowed nine days; some not so much. Wightman objected to this allowance, as the attorney must have known he would not be wanted at the beginning of the week. It appeared, however, that the objection had been taken before the Master, and he had decided upon it; and that the attorney had been written to by the plaintiff's agent on Saturday, directing him to be at Lancaster on the Monday morning, and that the defendant's witnesses were also in attendance on the Monday, and that the first list of causes had

gone

off very rapidly: these circumstances had been taken into consideration by the Master.

Lord LYNDHURST, C. B.-If the parties acted bond fide, there is no ground for reviewing the discretion of the Master, though it may be true that other persons might have formed a different opinion as to the necessity of the witnesses attending so early.

BAYLEY, B.- It is a question for the Master, whether the witnesses ought to have attended on the first day; and he has decided upon it.

Rule discharged without costs.

Doe d.

v. BARKER. HUMFREY moved for an attachment against the de. An attachment fendant, Sarah Barker, for non-payment of costs. The for costs is now costs were taxed upon the rule for not confessing lease, out first issuing

a subpoena. entry, &c., and there was an affidavit of the Master's allocatur, and of a personal service on the defendant, and

1833.

Doe d.

a demand of the costs; but there was a doubt, whether, in this Court, it was still necessary to issue a subpoena for the costs, and have an affidavit of the personal service of it(a)

BARKER.

Bayley, B.-The old course certainly was, to take out a subpoena; but it does not appear to be necessary now. There must be a demand of the costs in every case; but hitherto that has been accompanied by a subpæna. I think we may consider it unnecessary.

Rule granted.

(u) See the form and practice, Burton's Exch. Vol. 2, p.522.

SMITH v. CLARKE. Interlocutory ARCHBOLD shewed cause against a rule which had judgment cannot be set aside been obtained by Miller, for setting aside the interlocutory tice of declara- judgment, (which had been signed in this action), with tion is irregular. costs, for irregularity. The notice of declaration was headed

Where a rule is drawn up for " In the King's Bench,” and gave notice of a declaration setting aside a

filed in the office of Pleas. He contended that the dejudgment for irregularity, an fendant could not be misled by it; and that he should objection that it was signed have moved to set aside the notice, and not wait till judgagainst good faith cannot be ment was signed. The notice was given on October 30th, entertained, (though the rule

and the motion was made on the 10th of November. was moved on that ground),

Lord Lyndhurst, C. B.- I think they were bound to that not being an irregularity. move to set aside the notice.

Miller, in support of the rule, said, there was another ground on which he had moved—that the judgment had been signed against good faith.

Lord Lyndhurst, C. B.— That is not an irregularity. The rule is, to set aside on the ground of irregularity; you are bound by the rule.

Rule discharged, without costs.

1833. Biddell v. Smith. THE venue in this action having been changed, on the It is not of itself usual affidavit that the plaintiff's cause of action, if any, jection to an af

a sufficient obarose in Staffordshire, and not elsewhere, Humfrey moved fidavit for

changing the to discharge the rule for changing the venue, on the ground venue, that it is that the affidavit was made by the attorney in the cause, torney in the

made by the atand not by the defendant himself. He contended, that

He contended, that cause, and not

by the defenan attorney had no power to make such an affidavit; he dant; but, sem

ble, that, if desaid, the Masters knew of no instance of its having been fendant is in the done.

country, it ought to be

made by him. BAYLEY, B.-There is no rule that such an affidavit must be made by the defendant in the cause, and not by the attorney; perhaps the defendant is not in the country. If it is found, however, that the defendant is in the country, you may take a rule (a).

(a) See King v. Turner, 1 Chit. Rep. 58, and cases in note (a); and Brown v. Davis, Id. 161.

ment of debt

KIRBY v. ELLISON. THIS action having been commenced for a debt of A Judge at 51. 16s., Bolland, B., on the application of the defen- chambers, who

stays proceeddant's attorney, made an order, on the 9th of July, that ings on pay. proceedings should be stayed on payment of debt and and costs, cancosts by the defendant, by monthly instalments of 11. The hot without the plaintiff's attorney however objected, and the order being sent, allow the

defendant long. made without his consent, he treated it as a nullity, and delivered a declaration; but, upon application to he would be en

payment than Vaughan, B., on July 18th, he made an order for setting

titled to by law. aside the declaration, with costs. The defendant's attorney

er time for the

1833.

KIRBY

ELLISON.

paid the instalments regularly (out of his own pocket, as it was sworn) till the present term, the plaintiff receiving them, subject to his right to apply to the Court to set aside the above orders. The defendant's attorney then applied for the costs on Mr. Baron Vaughan's order, amounting to 101., but which were afterwards taxed at 51. 3s. To get rid of these costs, Chilton, on behalf of the plaintiff, obtained a rule nisi to set aside the above orders, contending that the learned Baron had no authority to make the first order, and that the plaintiff was therefore justified in proceeding.

Platt shewed cause.—He contended, that if a Judge had power to stay proceedings on payment of debt and costs, he could also order in what way they should be paid. An order to pay on the Saturday following would have been clearly good; and he had as much authority to allow a month as a day. Here, money was paid to the plaintiff at an earlier period than if he had gone on in the regular way to judgment; and if there was any default, execution was to issue for the whole; but

Bayley, B., expressing his opinion, that, though a Judge might have power to give the time allowed by law, he could not allow a longer time, and recommending the defendant to forego the costs of the order of Vaughan, B., the parties agreed to those terms, and that a stet processus should be entered.

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