1833. DONNIGER v. HINXMAN. ance, it shall be lawful for the Court or Judge to declare such third party, and all persons claiming by, from, or under him, to be for ever barred from prosecuting his claim against the original defendant, his executors or adminis. trators, saving, nevertheless, the right or claim of such third party against the plaintiff." The Court, therefore, has no power to interfere and bar the claim of an execution creditor, as the act only applies to the case of a third party claiming. It afterwards appeared that Donniger had died since the service of the rule, and therefore the whole case stood over until the following term, when arrangements were made for deciding the question between the parties. not grant judgment against tor, when, from DOE d. NORMAN v. ROE. The Court will MOTION for judgment against the casual ejector.The affidavit stated, that, before the first day of the prethe casual ejec- sent term, namely, on the 4th of October last, the deponent affixed a copy of the declaration and notice, by nailing the same against the exterior wall of the dwelling-house, being the most accessible and conspicuous part of the house, which was locked up, and seemingly uninhabited. the affidavit in support of the motion, it appears that the premises are vacant. Littledale, J.-More than that must appear. The tenant and his family might have been absent at market. It subsequently appeared, from another affidavit, that deponent had made inquiries in the neighbourhood, and had been informed that the premises had been for some time uninhabited, and that the interior of the messuage had been pulled down and taken away; that six quarters' rent was due, and that it appeared that the premises had been deserted ever since the last payment of rent; that deponent had been informed, and verily believed, that the lessee was, since that time, dead. LITTLEDALE, J.-Here is a mere vacant possession, and the proper proceedings with respect to it have not been adopted. If I were to allow this, I should be opening the way to great irregularities. Rule refused. SPRIGGE, Gent., One &c. v. RUTHERFORD. (Before the four Judges.) THIS Where a plaintiff gave notice that he should take the cause down to trial as an undefended cause, and when it was called on the defendant's counsel said it was defended, whereupon it was not tried; but the plaintiff again took the record down and got the cause tried as undefended, without any new notice or setting it down the Court granted a new trial, in the paper, without payment of costs. 1833. SPRIGGE บ. RUTHERFOrd. on Thursday, without the knowledge of the defendant's attorney or counsel, as an undefended cause, and obtained a verdict. Upon an affidavit of these facts, and that the defendant had a good defence upon the merits, S. Hughes, on the part of the defendant, obtained a rule nisi for setting aside the verdict, and for a new trial. Busby shewed cause. He produced long affidavits to shew that the defendant could have no defence. TAUNTON, J., observed, it was not usual to answer affidavits of merits in that manner, for it would be trying the cause. Busby. The new trial ought at least to be upon payment of costs. S. Hughes, in support of the rule, contended that the plaintiff was clearly irregular in getting the cause tried behind the back of the defendant, and that he should either have set the cause down in the paper of the day, or given notice to the defendant's attorney that the record would be taken down on the Thursday. He referred to a rule of this Court (a), which directed that "every cause shall be tried in the order in which it is entered, unless it be made out to the satisfaction of the Judge, in open Court, that there is reasonable cause to the contrary; who thereupon may make such order for the trial of the cause so to be put off as to him shall seem just." He contended that a plaintiff taking a cause out of its turn does so at his peril; and that, if the learned Judge had been informed of the facts, he would not have allowed the cause to be tried; and that there was no reason for imposing costs upon the defendant, when the plaintiff alone was in fault. (a) H. 14 Geo. 2. Per Curiam.-We think the plaintiff did wrong in getting the cause tried in the way he did; and the rule for a new trial will therefore be made absolute, without payment of costs. 1833. SPRIGGE v. RUTHERFORD. Rule absolute. DOE d. FRITH v. Roe. in cases of vacant possession will in certain cases be dis pensed with. DOWLING moved for judgment against the casual The usual entry ejector. It was the case of a vacant possession; and the peculiarity in the case was in the mode of making the entry. The usual mode of effecting the formal entry in such a case was by putting the finger into the key-hole; but here there was no key-hole in the door, and therefore the person seeking to make the entry could not put his finger in; the entry, therefore, was by standing on the threshold of the house, and laying hold of an iron bar attached to the door. LITTLEDALE, J.-That will do, under the circumstances. Rule granted. WILSON'S Bail. WALLINGER opposed bail, on the ground that he was misdescribed in the notice of justification. The notice of justification described the bail as "a housekeeper." On examination, however, he admitted that he was not a housekeeper," but a mere "lodger." On further examination, however, he stated that he had a freehold. Comyn, in support of the bail, submitted, that although the bail had been described as a housekeeper in the notice 1833. WILSON'S of justification, yet, as it appeared on the bail coming up to justify that he was a freeholder, it was sufficient. Wallinger contended, that, as the rule of Trinity Term, 1 Will. 4, required the notice to state whether the bail was a housekeeper or freeholder, it could not be said that there had been a compliance with that rule, when a person who was a lodger had been described as a housekeeper. If he had been described in the notice of justification as a freeholder, it would have been different. If he were a freeholder, that was a sufficient qualification, in one point of view, to become bail. But the mere fact of the bail's being a freeholder appearing on the examination could not render the notice good. Whether he was a freeholder or a housekeeper must appear in the notice. Proof of the bail being a "freeholder " could be no support of the description "housekeeper " in the notice of justification. LITTLEDALE, J., was of opinion that the bail had been improperly described in the notice of justification. He was a lodger, and he was described as a housekeeper. The fact of his being a freeholder could make no difference. Perhaps it might have been different under the old rules; but the rules of Trinity Term, 1 Will. 4, were peremptory. The bail must, therefore, be rejected. Bail rejected. REX v. The Sheriff of MIDDLESEX, in WATTS v. HAMILTON. (Before the four Judges.) If the sheriff is MILLER shewed cause against a rule for setting aside required by a Judge's order to an attachment against the sheriff for not bringing in the bring in the bo- body. It appeared that the defendant had been arrested dy in vacation, and he does not obey it in due time, but, before an attachment is obtained, the defendant is rendered, the contempt is not purged, and he is still liable to an attachment. The Court will, however, set it aside, on payment of costs, and not order it to stand as a security where the plaintiff has not lost a trial. |