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LITTLEDALE, J.-When a new trial is granted, and nothing is said about the costs of the first trial, they fall to the ground, as a matter of course. The Court can now do nothing with respect to them. By 1 Reg. Gen. H. T. 2 Will. 4, s. 64 (a), it is ordered, that " if a new trial be granted, without any mention of costs in the rule, the costs of the first trial shall not be allowed to the successful party, though he succeed on the second." This rule, therefore, cannot be granted.
(a) Ante, Vol. 1, p. 191.
fendant has still the same time
Wilson and Another v. BRADSLOCKE. If the time for KNOWLES applied for a rule to set aside a judgment pleading does not expire until signed under the following circumstances:--The plaintiff after the 10th
had declared and delivered particulars of his demand. On of August, al. though it may the 25th of July a Judge's order had been obtained for be enlarged time, the de- further particulars, and on the 29th of July the defendant
had obtained another Judge's order for a week's time to for pleading as plead after delivery of the further particulars. The plaintion had been tiff did not deliver the further particulars until the 5th of filed or delivered on the 24th August, so that the time for pleading did not expire until of October.
the 12th of August. By Reg. Gen. M. T. 3 Will. 4, in furtherance of 2 Will. 4, c. 39, s. ll, it is ordered, that " in case the time for pleading to any declaration, or for answering any pleadings, shall not have expired before the 10th August, the party called upon to plead, reply, &c., shall have the same number of days for that purpose after the 24th day of October, as if the declaration or preceding pleading had been delivered or filed on the 24th October." The defendant, thinking the case within that rule, did not plead, and the plaintiff signed judgment. This he con
tended was irregular, as even, if the further time to plead were considered as an indulgence, the plaintiff had had time to deliver his further particulars, so as to get a plea before the 10th August.
Mansel shewed cause in the first instance, and contended that the rule only applied to cases where the original time to plead expired after the 10th August, and not where, as in this case, indulgence had been granted.
LITTLEDALE, J., (after consulting the Master). The rule must apply to all cases where the time to plead expires after the 10th August and before the 24th October. I am informed by the Master that no proceedings would be taken in the office during that interval.
Rule to set aside judgment, but without costs.
our Court be
StorR and Another v. MOUNT, a Prisoner. THE defendant, being a prisoner in the King's Bench A writ of de
tainer directed prison for debt, at the suit of several persons, the present to the Marplaintiffs lodged with the Marshal a writ of detainer for shal of our pri
son of the Mar561. The writ was directed, “ To the Marshal of our prison shalsea," in
stead of "the of the Marshalsea."
Marshal of the
Marshalsea of Platt obtained a rule nisi for setting aside the writ fore us:"--Held
irregular, and with costs, and for discharging the defendant, on the the defendant ground that the writ did not pursue the form prescribed out of custody.
was discharged by the act of 2 Will. 4, c. 39. The direction of the writ in the form given by the act is “ To the Marshal of the Marshalsea of our Court before us:" instead of which, it was directed “ To the Marshal of our prison of the Marshalsea,” leaving it uncertain whether the prison of the Palace Court or the King's Bench prison was intended.
D. P. C.
The Solicitor-General and Hughes shewed cause.They contended that the variance was not material, as it could not mislead. Though the act says the writs shall be according to the forms there given, it could never have been intended that a writ must conform to the act in every word and letter. The direction of a Palace Court writ is very different: it is " To the bearers of the virges of our household, the officers and ministers of our Court of our Palace of Westminster, and every of them.” In Tidd's Forms (a) there are forms of writs directed to the Marshal very similar to the present: a habeas corpus ad respondendum against a prisoner, directed “ To the Marshal of our Marshalsea before us;" another writ in the Exchequer directed simply thus~"To the Marshal of our Marshalsea, or his deputy there." A writ directed to the sheriff instead of “ sheriffs" of London was held not to be irregular on that account. Clutterbuck v. Wiseman (6), and Tidd's Practice (c).
LITTLEDALE, J.--I have sent in to the other Judges, and two of them are of opinion that the writis not properly directed: the rule must, therefore, be made absolute.
(a) Last edition, pp. 124, 125.
(c) 9th ed. 151, citing MS. E. 21 Geo.3, K. B.
Service on an under joint-tenant is good service on him and a joint-tenant.
Doe d. HUTCHINSON v. Roe. ADDISON moved for judgment against the casual ejector. It appeared that the service was regular, except as to one of the tenants, who was joint-tenant with one who had underlet and whose tenant had been regularly served. In Doe d. John Bailey v. Roe (a) it was held that ser
(a) 1 B. & P. 369.
vice of a declaration in ejectment on one of two tenants in possession is good service on both. In the present case à fortiori must the service on one be sufficient.
Doe d. STEPPINS 0. LORD. GOULBURN, Serit., shewed cause against a rule ob- If a plaintiff tained by Mansel, for judgment as in case of a nonsuit does not proceed for not proceeding to trial pursuant to notice. It appeared to notice, at the by the affidavit, in answer to the rule, that the defendant's quest, he is not
entitled to judgattorney requested the plaintiff not to proceed to trial, on ment as in case the ground of such a proceeding being at that time incon- of a nonsuit. venient, as he was not then prepared with his defence. Accordingly, the plaintiff did not proceed. After that default, which was committed at his express desire and to oblige the defendant, he came to the Court to move for judgment as in case of a nonsuit. The plaintiff was not entitled merely to discharge the present rule, but to have the costs of coming to oppose it.
Mansel supported the rule.
PATTESON, J.—The present rule must be discharged, as it appears that the plaintiff did not proceed to trial pursuant to notice, solely at the instance of the defendant's attorney, and then that very attorney now comes and moves for judgment as in case of a nonsuit. The rule must, therefore, be discharged, under the circumstances, with costs.
Rule discharged, with costs.
Doe d. Forbes v. RoE. It is not suffi.
ADDISON moved for judgment against the casual ejeccient to state in the notice at
tor. The peculiarity in the case was, that the notice at the foot of a de- the bottom of the declaration was
to appear in due time," claration in ejectment, that instead of“ to appear in Michaelmas Term next.” The the tenant is “ to appear in
nature and object of the service was explained by the due time."
person effecting it.
LittleDALE, J.--The tenant in possession cannot be supposed to know what is the practice of the Court, and therefore directing him " to appear in due time” gives him no information. The service is not sufficient, and the rule, therefore, cannot be granted.
SARJEANT v. Jones. If a defendant
HutchINSON shewed cause against a rule for judgunnecessarily rules a plaintiff ment as in case of a nonsuit, obtained by Harrison. The to enter the is- defendant had, notwithstanding 1 Reg. Gen, H. 2 Will. sue, he is not thereby depriv- 4, ruled the plaintiff to enter the issue. By sect. 70 ed of his right to obtain judg- of that rule, it is ordered that “no entry of the issue shall ment as in case be deemed necessary to entitle a defendant to move for
judgment as in case of a nonsuit, or to take the cause down to trial by proviso.” Having ruled the plaintiff unnecessarily to enter the issue, it was entered accordingly. The defendant must thereby be taken to have waived his right,
Harrison, contrà, contended, that, although it was not "' necessary” to enter the issue, the fact of the defendant ruling the plaintiff to enter it could not interfere with his right to obtain judgment as in case of a nonsuit.
LittleDALE, J.-If the entry of the issue is unneces