1833. DOE d. v. BARKER. 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). 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 subpœna. I think we may consider it unnecessary. Rule granted. (a) See the form and practice, Burton's Exch. Vol. 2, p. 522. Interlocutory judgment cannot be set aside because the no tion is irregular. Where a rule is drawn up for SMITH V. CLARKE. ARCHBOLD shewed cause against a rule which had been obtained by Miller, for setting aside the interlocutory tice of declara- judgment, (which had been signed in this action), with costs, for irregularity. The notice of declaration was headed "In the King's Bench," and gave notice of a declaration filed in the office of Pleas. He contended that the deirregularity, an fendant could not be misled by it; and that he should have moved to set aside the notice, and not wait till judgment was signed. The notice was given on October 30th, and the motion was made on the 10th of November. setting aside a judgment for objection that it faith cannot be was moved on Lord LYNDHURST, C. B.-I think they were bound to 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 usual affidavit that the plaintiff's cause of action, if any, arose in Staffordshire, and not elsewhere, Humfrey moved to discharge the rule for changing the venue, on the ground that the affidavit was made by the attorney in the cause, and not by the defendant himself. He contended, that an attorney had no power to make such an affidavit; he said, the Masters knew of no instance of its having been done. 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. KIRBY V. ELLISON. The chambers, who stays proceed ings on pay ment of debt and costs, can not, without the plaintiff's con THIS action having been commenced for a debt of A Judge at 5l. 16s., Bolland, B., on the application of the defendant's attorney, made an order, on the 9th of July, that proceedings should be stayed on payment of debt and costs by the defendant, by monthly instalments of 17. plaintiff's attorney however objected, and the order being made without his consent, he treated it as a nullity, and delivered a declaration; but, upon application to Vaughan, B., on July 18th, he made an order for setting aside the declaration, with costs. The defendant's attorney defendant long sent, allow the er time for the payment than he would be entitled to by law. 1833. KIRBY V. 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 107., 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. 1833. KING V. MONKHOUSE. "Gray's Inn Square, Longood descrip don," held a tion in a writ of the residence of the plaintiff, an the Uniformity though it was attorney, within of Process Act, THIS was a motion to set aside a writ of capias, on account of the indorsement not complying with the terms of the Uniformity of Process Act. The writ was indorsed thus-" This writ was issued in person by W. H. King, who resides at 7, Gray's Inn Square, London." In the affidavit of debt it was called Gray's Inn Square, Middlesex. Mansel contended that the description of the place of abode was not correct. He produced an affidavit that Gray's Inn Square was not in London but in Middlesex: not in London. the description should have been Gray's Inn Square, Gray's Inn, that being the larger district; and he referred to Engleheart v. Eyre (a), where Patteson intimated that "Gray's Inn, London," put as the residence of an individual (not an attorney) would not be sufficient. Hutchinson, contrà.—Gray's Inn is an extra-parochial district, and the description we have given is the best that can be given. Letters are always addressed to Gray's Inn, London. BAYLEY, B.-The act (b) directs, that when the writ is sued out by the plaintiff in person, there must be a memorandum expressing that it is so sued out; and it must also mention the city, town, or parish, and also the name of the hamlet, street, and number of the house of such plaintiff's residence, if any such there be. The plaintiff now resides in a place which is not within any city, town, parish, or hamlet, and he has given as good a description of his residence as he could. The rule must therefore be discharged. Rule discharged. sworn that Gray's Inn was (a) Ante, 145. (b) 2 Will. 4, c. 39, s. 12. 1833. is made by one on behalf of another to goods seized by the sheriff in ex PHILBY V. CHARLES IKEY. Where a claim AN execution having issued against the goods of the defendant, the sheriff, on executing the writ, received from the defendant a written notice, that the goods seized were the property of William Ikey, and not of the defendant. The sheriff thereupon obtained a rule nisi, under the Interpleader Act (a), and served it upon William Ikey and the defendant; but neither Charles nor William Ikey appeared to shew cause. ecution, and, upon a rule be ing obtained under the Interpleader Act, neither party appears to shew cause, the plaintiff is not entitled to receive his costs from the sher iff, but the sher Clarkson, for the sheriff, asked for a rule to bar the claim of William Ikey; and that Charles might pay the iff and plaintiff costs of this application. are both entitled to their costs from the claimant or his agent, upon a rule to shew cause. Hutchinson, for the plaintiff, contended that his costs ought to be paid by the sheriff. BAYLEY, B.-The plaintiff is not in fault, nor is the sheriff. He was forced to come here; and I think he has been brought here improperly. The rule must be absolute as to barring all claim of William Ikey; and, as to the rest, it must be enlarged, and made part of the enlarged rule why Charles or William Iky should not pay the sheriff his costs, and also the plaintiff his costs. I think the plaintiff cannot throw his costs on the sheriff. Rule accordingly; and sheriff to have six days to sell and make a return. (a) 1 & 2 Will. 4, c. 58, s. 6. |