« EelmineJätka »
the ground of irregularity. Lewis v. Gibson, 8 Ir. Where a writ has been served without any enL. Rep. 82, Ex.
dorsement, stating the amount of debt and costs
, The court will set aside the proceedings against the proceedings will be set aside, although notice a minor for irregularity, though he is fully aware bas been served by plaintiff's attorney stating the of his position, and it is not in the discretion of the amount of debt and costs. Warren v.
BI. court to allow the proceedings to stand, and leave D. & 0. 249, Q. B. the defendant to his writ of error. Green v. Cop A notice of motion to set aside proceedings for land, BI. D. & 0. 110, Ex.
irregularity must set forth the irregularity comThe defendants, and one A. L., on the 1st of plained of. Wade v Dowling, Bl. D. & Ó. 249 , May, 1846, were indebted to the plaintiff in £37 Q. B. 7s. 9d., one year's rent, payable quarterly, and the A notice of motion to set aside proceedings for tithe rent charge due to that day; on the 2nd of irregularity should set out the irregularity comJune following a capias issued, returnable the 6th, plained of; but if it appear, from the atidarit endorsed for £100 debt, and £3 10s. costs ; on the made to oppose the motion, that the other side 31st of October the plaintiff's attorney, no steps knew what the irregularity was, costs will not be having been taken in the meanwhile, refused to given. Williams v. Barton, BL D. & 0.253 receive less than a year and a quarter's rent, and Where a trader applies to set aside a judgment demanded the costs of drawing and engrossing a as irregular, and contrary to good faith, the court, declaration. The defendants, on the 2nd of No- before granting a conditional order, will put hin vember, lodged the year's rent in bank to the under terms to commit no voluntary act of bank credit of the plaintiff, and shewed the receipt to ruptcy. M Evoy v. Reid, Bl. D. & 0.261, Ex. his attorney, who, notwithstanding, entered a par Proceedings were set aside, upon the ground of liamentary appearance, and proceeded to execution an alteration in the direction of the writ after it and sale. The court set aside the parliamentary bad sealed and issued. Cooper v. Kerby, 5 Ir. L appearance, and all subsequent proceedings, with Rep, 254, Ex. costs. Evatt v. Livingstone, 10 Ir. L. Rep. 99, Ex. À party who seeks to set aside proceedings on By the notice at the foot of the copy of a writ the ground of non-service of the process
, should of capias ad respondendum the defendant was apply to the court for relief iminediately after directed to appear at the return thereof, “the notice of the proceedings, and before additional day of May next.” The plaintiff having notwith expense has been incurred by the opposite party, standing notice of the irregularity, entered a par- | Lewis v. Berry, 6 Ir. L. Rep. 45, Ex. liamentary appearance, and proceeded thereon to When the defendant swore he had not been judgment The court set aside the appearance, served with process, and had a good defence, the and all subsequent proceedings. Birch v. Shaw, court, on a motion to set aside the judgment and 10 Ir. L. Rep. 107, Ex.
proceedings, ordered the amount claimed to be The defendant, having been served with the writ lodged in court, that the judgment be set aside, when going abroad, had forgotten to instruct his and that the defendant should plead forthwith, atid attorney. After a writ of inquiry sped, and dama- take short notice of trial. Henessey v. Wall, 6 lr. ges assessed, the court set aside the parliamentary L. Rep. 205, C. P. appearance, and subsequent proceedings, upon lodg The process server having been convicted of ment of the amount in court, payment of costs, and perjury in the affidavit of service, the court set an affidavit of merits. Quin v. Arthur, 10 Ir. L. aside the parliamentary appearance with costs, it Rep. 446, Ex.
appearing that the debt was paid. Murphy . A declaration was entitled as of a term subse- Crofts, 6 Ir. L. Rep. 334, Ex. quent to the term of the defendant's appearance. A plea was filed on the 4th of May. The de The court set aside the declaration with costs, and fendant, on the 6th of June following, served a refused to allow it to be amended. Hinds v. Shan notice of motion to set it aside as frivolous, and non, 10 Ir. L. Rep. 458, Ex.
filed for delay. The court refused the motion, on Notice of a motion to set aside proceedings the ground of laches. Reynolds v. Lopudell
, 6 Ir. L. ought to state on whose behalf the motion is made. 468, C. P. Crawford v. M Donnell, 4 Ir. L. Rep. 104, Q. B. In an action by the administratrix of A, against
A writ in which there is no plaintiff's name is a the administrator of B., the declaration stated, that nullity, on which an appearance cannot be entered. B., in his lifetime, was indebted to A.
, in his lifeAnonymous, Bl. D. & 6. 50, C. P.
time, in six separate sums of £60, for goods soid A writ directed to a county of a city, not exist- and delivered, goods bargained and sold
, money ing, is a nullity. Vance M.Cormick, Bl. D. & o. lent, money paid, money had and received, and on 42, Ex.
an account stated, laying the promise by B. to A. The city of Londonderry is a part of the county. After the words, “and whereas also," the decla16.
ration averred, that B., in his lifetime, was indebted The absence of a date at the foot of a writ is an to A. in two other sums of £60, for goods sold and irregularity, and lapse of time does not waive it, delivered, and money lent, stating a promise from when notice of it has been given at the earliest op- the defendant to the plaintiff, in their represerportunity. Keat v. Shaw, Bl. B. D. & 0. 149, Ex. tative capacities, to pay the sums in this count
An erroneous date in the parliamentary notice mentioned.” After a second " And whereas also," at foot of the writ, is not such an irregularity as the declaration averred, that the defendant
, as will vitiate subsequent proceedings. Anonymous, administrator, was indebted to the plaintiff as adBI. D. & 0. 183, C. P.
ministratrix, in a further sum of £60, upon an
rcount stated, with a promise by the defendant to not set aside the demurrer as frivolous. Alcock v. ay the plaintiffs the movies in the said last men- Holland, 3 Ir. L. Rep. 366, C. P. oped counts" specified. Plea, treating the decla The courts on some occasions have exercised a ation as coutaining but three counts. Whereon summary jurisdiction, in ordering objectionable laintiff entered a nolle prosequi as to the three pleas to be struck out ; but I am not disposed to punts to which the defendant pleaded, and marked carry those decisions farther. Sims v. Thomas, 3 dgment by default as to the remainder. Held, Ir. L. Rep. 420, Ex. [Per Brady, C. B.] hat the declaration contained but three counts, A defendant in an action of debt pleaded by nd the plaintiff, by his nolle prosequi, having put mistake non assumpsit for nil debet. The plaintiff he case out of court, the judgment, and subsequent marked judgment for want of a plea, and refused roceedings, were set aside. Wade v. Croker, 6 on notice and consent to set it aside without costs. r. L. Rep. 514, Ex. [See Morrissey v. Walsh, 9 | The court set aside the judgment with costs against r. L. Rep. 293 ; Morse v. James, 11 M. & W.831; the plaintifl. Boileau v. Homan, 4 Ir. L Rep. V-Gregor v. Graves, 18 L. Jour., N. S. 109, Ex.] 118, C. P.
Where an attorney's name is entered in the regis Wbere a party under terms to plead issuably, ry book of the residences of attornies practising in pleads an informal plea, upon which the opposite he court, though not an attorney of the court, and party cannot safely take issue, the court will direct hough the entry was made without his sanction or it to be taken off the file with costs. Graydon v. knowledge by a former partner of his, the court re- Kernan, 4 Ir. L. Rep. 121, C. P. fused to set aside proceedings taken against him as In an action of assumpsit containing a count an attorney of the court. Knaggs v. French, 5 Ir. upon a bill, and the money counts, the defendant L. Rep. 331, C.P.
demarred to the whole declaration, assigning The defendant having prosecuted under an order special causes of demurrer to the first count, and of the court, and convicted the process server of pleaded the general issue to the money counts. perjury, the court set aside the parliamentary appear. The demurrer was set aside with costs. Warren ance and all subsequent proceedings with costs, and y. Haughton, 6 Ir. L. Rep. 2.6, Ex. the costs of obtaining the order to take the affidavit When a frivolous demurrer was filed on the last off the file. Fahie v. Nash, 4 Ir. L. Rep. 304, C.P. day of Trinity Term and a trial at the following
Where there is no cause in court and an affidavit assizes thereby lost, the court set it aside, and would without a stamp is filed, entitled as if in a cause in not let the defendant in to plead. Scully v. O'Brien, court, and a fiat obtained thereon, the proceedings 2 Ir. L. Rep. 14, Q. B. will be set aside. Plunket v. Plunket, 4 Ir. L. Rep. 366, Q. B.
VII. NOTICE OF TRIAL. An affidavit in support of a motion to set aside the service of a writ was held to be defective in not The 29th rule of the court, requiring a terms stating the particular place in which the defendant notice before going to trial, when the cause is three was served, and for not negativing that he was ternis at issue, is not now acted on. Condon v. served within the jurisdiction. Maguire v. Scott, Condon, 7 Ir. L. Rep. 427, Q. B. 2 Ir. L, Rep. 224, Ex.
Piea, filed after the last day for pleading, and beSemble, the Christian and surname of the attor-fore judginent marked, is good, and notice of trial ney for the plaintiff should be signed in full at the served-on the last day for pleading, and for serving foot of the English notice attached to the capias. notice of trial--before plea pleaded, is regular. Coffey v. Barrett, 4 Ir. L. Rep. 81, Q. B.
Doolan v. Dunne, Bl. D. & O. 40, Ex. The copy of a serviceable capias must not vary
And under similar circumstances, if there be from the original either in sound or sense. Spence
notice of trial served, the defendant will be made v. Finn, 4 Ir. L. Rep. 476, Ex.
to accept short notice of trial. Byrne v. Jones,
BI. D. & 0. 40, Ex. Pleas and Demurrers.] - In trespass for mesne Notice of trial served in anticipation of a plea profits, where there was a plea of the general issue, on the last day for pleading will be deemed suffi. two pleas of liberum tenementum, and
a plea of no cient, if the defendant plead issuably. Lowry v. property in the plaintiff, the court will order the Robinson, Bl. D. & 0. 197, Ex. latter to be taken off the file, being unnecessary. Jack v. Swift, 3 Ir. L. Rep. 7, Q. B. Where an information in the nature of a quo
VIII. Postea. warranto is brought in the name of the coroner When the defendant has obtained a verdict, the at the relation of a private individual, to try the plaintiff has no right to prevent him from moving on right of the defendant to hold the office of treasurer the postea, by lodging with the officer a sum sufficient of the city of Dublin. Quære, can the defendant for the payment of his costs, the defendant being plead several pleas? Reg. v. Darley, 3 Ir. L. Rep. entitled to have a judgment entered for him, as a 334, Q. B.
protection against a future action. Perrin v. Where a defendant pleads several pleas, in a Hodgens, 2 Ir. L. Rep. 24, Ex. case in which he is only entitled to plead one plea, When the jury in action of trespass, against secan the objection be raised by demurrer, or is a veral defendants, find, on first plea, general dammotion to set them aside, as irregular, the proper ages, and then apportion them between the defencourse? Ib.
dants, such finding is good, and the court will treat The defendant having demurred to the declara- the apportionment as surplusage. Kelly v. Dillon, tion, for not being properly entitled, the court would BI. D. & 0. 267, Ex.
IX.-Motions.---(See different heads.) cause ; and the opposite party gave notice of a moGenerally.]—A motion brought upon a notice tion to make that order absolute. Held, that the served before the affidavits were filed, on which it party moving to make the order absolute had a right is grounded, is irregular, and will not be enter to begin. Reg. v. Recorder of Dublin, 6 Ir. L. Rep. tained, though copies of the affidavits be served at 440, Q. B. the same time with the notice. Anonymous, 2 Ir.
A notice of motion to set aside proceedings for L. Rep. 169, Q. B.
irregularity should specify the irregularity. Kirk The defendant is entitled, on the last day of term, v. Anderson, 6 Ir. L. Rep. 467, Q. B. to discharge the plaintiff's notice of motion with
Filing an answering affidavit, and appearing on costs, it not being in the list. On any other day the notice is no waiver of the irregularity. 16
. in term, the course would be to put it in the list,
A notice of motion is irregular if it does not state and have it discharged with costs. Laird v. Laird, the grounds on which it is made, and a reference to 2 Ir. L. Rep. 210, C. P.
an affidavit filed is not sufficient. Larkin v. LateThe court will not allow the costs of a motion to der, 7 Ir. L. Rep. 227, C. P. set aside proceedings, when the notice of motion
A motion to extend the time for making up a does not sufficiently specify the defect upon which bill of exceptions must be upon notice. Rusell the motion is grounded. 'Lynch v. Ejector, 2 Ir. Whalley, 7 Ir. L. Rep. 492, Ex. L. Rep. 240, Ex.
“ When there are two notices pending at the No motion can be entertained when the cause is same time, one to show cause against a rule nisi out of court, until the expiration of a term's notice and the other to make rule nisi absolute, unless the to the defendant
. Jones v. Lucy, 3 Ir. L. Rep. other party shall move his motion on or before a 361, C. P.
day to be named in said notice; and which day sball The notice of motion to set aside proceedings not be less than two days after the day named in should state on whose behalf the motion is made. the notice of showing cause; and if, after the said Crawford v. M Donnell, 4 Ir. L. Rep. 104, Q. B.
second notice shall become moveable, a question of An affidavit of merits made in compliance with precedency, as to the two motions, shall arise, that a notice of the opposite party, though not sworn or in such case the motion first brought forward is to filed until after the day on which the motion might have precedency.”..Q. B. 18th April, 1845. originally have been made, may be used upon the
A notice of motion should specify the grounds of motion. Boileau v. Homan, 4 Ir. L. Rep. 118, C.P. the irregularity on which the proceedings are sought
The court will allow an affidavit to be read in to be set aside. Cator v. Flattery, 8 Ir. L. Rep support of a motion in Chamber, though not filed 117, Q. B. at the time of the service of the notice, if a copy be
Taking out an attested copy of a declaration served with the notice. Smith v. Blair, 4 Ir. L. waives an irregularity in the notice of its being filed, Rep. 397, Q. B. Ch.
and the rule to plead. Cannon v. Willington, 9 À notice of motion should always state the Ir. L. Rep. 138 ; S. C. Bl. D. & 0. 47, C. Ñ. grounds upon which it is to be made. "Anonymous,
A notice of motion signed by an attorney, who is 4 Ir. L. Rep. 434, Ex.
not the attorney upon record, for the party moving The affidavit of service of a notice of motion did is insufficient. Strettle v.10 Ir. L. Rep. 461, Ex. not state that it had been served before six o'clock
The court will not, in the absence of new facts in the evening. Held, that defect was not waived or documents, review an order made upon motion. by the appearance of the party served, and a cau. Lord Miltown v. Reeves, Bl. D. & 0.273, Q. B. tionary notice served by him, which only specified
By the settled practice of the court a conditional another alleged defect in the notice. "Boileau v. order must stand or fall upon the docuinents on Homan, 5 Ir. L. Rep. 183, C. P.
which it has been obtained. White v. Doolan, 3 A notice of motion founded on an affidavit “to Ir. L, Rep. 500, Ex. be filed,” is irregular and cannot be used. Taylor
When an affidavit has been filed as cause against v. White, 5 Ir. L. Rep. 44, Ex.
a conditional order, but no counsel appeared to The notice of motion ought not to state that it shew cause, the court will not, without notice to will be grounded on affidavits - to be filed.” Lewis the opposite party, make the conditional order v. Kirwan, 5 Ir. L. Rep. 123, Ex.
absolute. Fenton v. Motherwell, 4 Ir. L. Rep
, Costs of a motion will not be given if the party
353, Q. B. moving omit to ask them. Levy v. Fenton, 5 Ir. L. Motion for Liberty to Tot.]-In an action of Rep. 129, Ex.
covenant on an annuity deed, by the executor of À notice of motion will not be discharged till set the grantor, who had obtained judgment on de down in the list by one or other party. Stevens v. murrer, the ordinary rule for liberty to tot is the French, 5 Ir L. Rep. 244, C. P.
proper one. Brien v. Lord Ponsonby, 7 Ir. L. An objection to a notice of motion, stating it to be Rep. 422. [Pennefather, C. J., dissentiente.] grounded on affidavits, " this day filed,” though not filed till the following day, is waived by the opposite Motions for Liberty to Proceed.] – The court party filing an answering affidavit. Cooper v. Kerby, refused to allow the plaintiff to proceed in a re5 Ir. L. Rep. 254, Ex.
plevin suit, giving a teru's notice, when nearly Counsel should not move, unless furnished with four years had elapsed since the last step was a brief of the documents upon which the motion is taken, though some of the goods bad not been founded. Anonymous, 6 Ir. L. Rep. 237, Ex. returned. Armstrong y. Freeman, 5 Ir. L. Rep.
A party filing an affidavit as cause against a con- 174, C. P. ditional order, served no notice of a motion to show Liberty to proceed, giving a term's notice on a
declaration filed six years back, will be granted, the weight of evidence; but the court, without ad. unless the defendant can shew some special cause mitting the surprise, considering the unsatisfactory to the contrary, such as the absence or death of a evidence of hand-writing and the positive swearing material witness. Moroney v. Danagher, 5 Ir. L. of the defendant, granted a new trial. Smith v. Rep. 562, Ex.
M Gonegal, 2 Ir. L. Rep. 267, Q. B. When issue has been joined for three years, If a party intend to rely upon a case of surprise liberty to proceed, on giving a term’s notice, must for the purpose of disturbing a verdict, he should be applied for by motion in court upon notice. bring the fact of surprise under the attention of the O'Reilly v Monaghan, 5 Ir. L. Rep. 567, Ex. judge that a note of it may be taken. 16.
Issue had been joined, and notice of trial served A. declared for the disturbance of a water-course, six years back, and then withdrawn at the re- through which he alleged he had a right to have quest of the defendant then promising to settle the water of a certain ancient stream flow, “ at all the demand; and subsequently in two years by a reasonable times.” It appeared that A. was tenant letter, the court gave the plaintiff a conditional from year to year to B., who had a use of this and order for liberty to proceed to trial, giving a full certain other water from the same stream for more term’s notice, and serving the order on the defend- than twenty years, using one at one time, and ant and his attorney personally, previous to the next another at another time, as he pleased ; and under term. Connor v. Blake, 6 Ir. L. Rep. 341, C. P. whom, until the interest of B was evicted, the plain
The 29th rule of the court, requiring a term's tiff had been enjoying the benefit of the stream. notice, before going to trial, if the cause be three Since the eviction the tenant had been holding as terms at issue, is not now acted upon. Condon v. tenant from year to year to the head landlord, as Condon, 7 Ir. L. Rep. 427, Q. B.
he previously held from B; a verdict being found
for the plaintiff. Held, on a motion for a new trial, Motion for New Trial.]— The court will not grant or for a non suit, on the ground of a variance bea new trial when the damages would necessarily tween the right declared on, and proved, that there be nominal, and there is no title in question. Pur- was no variance. Hough v. Kennedy, 2 Ir. L. Rep. cell v. Nolan, 1 Ir. L. Rep. 258, C. P.
182, Q. B. A new trial will not be granted upon the ground Water alone cannot be demised without deed ; that the count in the declaration was not properly but may be so in conjunction with land. Ib. framed, if it could have been correctly done. Min
Where a verdict was had subject to objections, heer v. O'Leary, 1 Ir. L. Rep. 73, Q. B.
and the court were of opinion that one of the quesA tenant, sued for use and occupation, and who tions, which the judge at nisi prius refused to leave obtains a verdict by reason of the misdirection of to the jury, should have been so left. A new triał the judge, cannot rely upon a wrongful eviction by was refused, as it appeared the result of a second the landlord during the tenantcy, suspending the trial would be similar. Kennedy v. Hayes, 2 Ir. L. rent, as cause against a motion for a new trial. Rep. 186, Q. B. Smyth v. Kellett, 1 Ir. L. Rep. 43, Q. B.
The Judge at nisi prius has no power to reserve When the trial is had before a Baron of the Ex- leave to the party against whom the verdict is given, chequer the order for a new trial is absolute in the to move to set aside that verdict, and have a verfirst instance. Doev. Kennedy, I Ir. L. Rep. 35, Ex. dict entered for himself without the consent of the
In an action against the defendant as the acceptor opposite party. Hely v. Hicks, 3 Ir. L. Rep. 92, Ex. of three bills of exchange the plaintiff produced
The court will not disturb a verdict, though the three witnesses, one of whom, who had but imper conclusion the jury came to was not such as the fect means of knowing the defendant's hand-writing, members of the court might individually have arafter stating his belief that two of the bills were rived at. Rooney v. While, 3 Ir. L. Rep. 153, Ex. accepted in the hand-writing of the defendant, ad
A trial was had by consent upon several judgmitted that he thought the acceptance of one of the ments of the same date, and between the same parbills more like the hand-writing of the defendant ties, and the plaintiff attempted to rebut certain than the other; the second witness having also given payments, given in evidence by the defendant, by general evidence as to bis belief of these acceptances, the production of two other judgments against the gave evidence similar to that of the former witness, same party, and which were vested in the plaintiff and added that the hand-writing of the defendant's in a different right from the four preceding, and nephew was very like that of the defendant; the were the subject of two other distinct actions. The third witness positively swore that neither of these court set aside a verdict for the plaintiff, on paybills were in the hand-writing of the defendant and ment of costs by the defendant. Daly v. Kelly, 3 that one of them was written by his brother. Upon Ir. L. Rep. 174, C. P. this evidence there was a verdict for the plaintiff,
In an ejectment on the title there was an issue the defendant not having examined any witness.comprehending two questions, viz., a part and parUpon motion to set this verdict aside, and for a cel question, and of the existence of a cestui que vie. new trial upon the ground that it was bad against The attention of the judge was not directed to the the weight of evidence, and by surprise, and founded 7 W. 3. c. 8. and the jury found for the defendant, on affidavits denying that the defendant ever ac- without stating, or being asked by counsel or judge, cepted those bills or authorized any person to do so, on which of the grounds the verdict was found. and that he was misled by observations of the plain- The court set aside the verdict, and directed a new tiff's attorney to the effect that he intended to rely trial. Cooote v. O'Fallon, 3 Ir. L. Rep. 265, C.P. solely upon a case of authority and not of actual
Held, that the evidence as to M. H. being the hand-writing. Held, that this verdict was not against principal debtor, was some proof of the allegation in
the declaration of a pre-existing separate deht due and refused, it is contrary to the rule of court to by M. H. to the defendant ; also that the judginent graut any other motion that is substantially the was some evidence of the bond and warrant, and same. Ib. therefore, the court could not set aside the verdict
If the judge at Nisi Prius entertain a doubt, on the ground of the inducement not being proved. and wish to have the question reserved for the Honan v. Ryan, 6 Ir. L. Rep. 106, C. P.
opinion of the court, costs will not in general be The expression by a judge, of his opinion as to given against the unsuccessful party, Aliter, if the the facts of the case, without submitting them ex question be reserved by the party seeking the clusively to the jury, is no ground for setting aside advantage of them. Barrett v. Hyndman. 3 I. a verdict for mis-direction of the judge. Reg. v. L. Rep. 109, Q. B. [See Acc., Daly v. Colbert, O'Connell, 7 Ir. L. Rep. 261, Q. B.
Ib. 355.] On a motion for a new trial on the ground, that On a motion for a new trial, on the ground of an affidavit had been improperly rejected in evidence excessive damages, the certificate stated that the the court, if it see that the evidence so rejected will damages were excessive, for the reasons, in the affinot affect the verdict, will not grant a new trial. davit of the defendant, stated. Held, that this cere White v. Dowling, 8 Ir. L. Rep. 128, Q. B. tificate was defective, in omitting to state the facts
The court, in setting aside a verdict on the ground from which it appeared that the damages were of the non-production of a written agreement, will excessive. Doe v. Power, 3 Ir. L. Rep. 438, Ex. put the defendant under the terms, to produce the The court will not give leave to serve notice of document to enable the plaintiff to have it stamped. motion for a new trial on the last of the four days, Thunder v. Warren, 8 Ir. L. Rep. 181, Ex. though an affidavit be made of the party being
When an order nisi had been made, setting aside ignorant of the record being in this court, or of the a verdict generally, and no mention made of the rule of the court. Coppinger v. O'Dell
, 4 Ir. L. costs of the trial, the party succeeding in the second Rep. 297, C. P. trial is entitled to the costs of the former. Rush v. If a defendant in ejectment have judgment Purcell, 8 Ir. L. Rep. 379, Q. B.
against him for non-appearance to confess lease, Notice of motion to set aside verdicts, and for entry, and ouster, the court will not grant a new new trials, must, according to the practice of this trial on any terms, unless it clearly appear that the court, be served within the first two days, and defendant has a just and legal defence to the action. moved on within the first four days. The court M Donald v. Lawton, 4 Ir. L. Rep. 303, C. P. will not relax the stringency of this practice, though A notice of motion for a new trial, which refers the party seeking the dispensation, has been pre-to the certificate of counsel for the grounds of the vented from serving notice by a fatality, unless he motion, is informal. Anonymous, 4 Ir. L. Rep. disclose to the court a case of merits. Blake v. 434, Ex. Vaden, 10 Ir. L. Rep. 1, C. P.
A motion to increase or reduce damages is in The court, prior to the motion, will not allow the nature of a new trial motion, and subject to additional affidavits, in answer to affidavits filed to the same rule; and notice of it must be given resist the application, to be filed by the party ap within the first four days of term. Taylor v. plying for a new trial. Kelly v. Dolphin, 2 Ir. L. White, 5 Ir. L. Rep. 44, 8x. Rep. 78, C.P.
A record was tried a second time in mistake, Where a cause had been tried by a special jury, pending a notice for a new trial; the parties on and upon a bill of exceptions a venire de novo was both sides appearing, and producing their evidence, awarded, and the defendant brought down the cause and a verdict given against the party who obtained by proviso, it appeared that upon the latter occa- the first verdict, if the court are satisfied there has sion the distringas was in the common form, except been a fair investigation, they will not disturb it. that the words by proviso” were written under the Knox v Lord Lucan, 5 Ir. L. Rep. 96, C. P. officer's name, and it was objected at the trial; To set a verdict for surprise, the party applying first, that the distringas was informal and irregular; should state specifically the evidence he could have and secondly, that the special jury which had been produced. Ib. struck on the former trial was the proper one to Semble, if the facts appear upon the record, and try the case. The court refused to disturb the ver- are proved, the judge should not non-suit. The prodict had for the defendant. Smith v. Nangle, 2 Ir. per course is to move to arrest the judgment
, or L. Rep. 296, Q. B.
for judgment non obstante veredicto. Keenan v. The court will not, after refusing an application Phillips, 5 Ir. L. Rep. 440, Q. B. for time to make up a bill of exceptions, grant a If an objection be taken at the trial as to the
conditional order to set aside the verdict. Bridge effect of a deed, and cannot be sustained on a motion ford v. Dublin and Kingstown Railway Company, for a non-suil, the party making it is not precludel 3 Ir. L. Rep. 19, C. P.
from looking into the deed, and making any other The court will not postpone the entry of judg- objection. Kingston y. Ready, 5 Ir. L. Rep. 367, ment on the postea, in a trial of an ejectment, and Q. B. a verdict had for the defendant, until after the
X-DISCONTINUANCE. trial of witnesses of the defendant who were indicted for perjury; the motion being a new trial
1 & 2 Vic., c. 109.]-The court after argument motion, and moveable during the first four days of points saved will not permit the plaintiff' to disof term. Rogers v. E. of Arran, 3 Ir. L. Rep. 25, continue without costs, under the 1 & 2 Vic, e. 109. C. P.
Purcell v. Wigmore, 1 Ir. L. Rep. 318, Ex. note. If an application to set aside a verdict be made [Per Pennefather, B.]