not be moved for till after the second assizes. However, the real difference is between is suable and nonissuable terms. Per Cur.-This rule has been obtained too soon according to the old practice before the new Rules. In Goughv. White, (2 M. & M. 363), it was agreed, after consideration with the other Judges, that those Rules do not alter the old practice with reference to the time when this motion was made. WILLIAMS U. DAVIS, H. T. 1839. C. P. 7 D. P. C. 246; S. C. 7 Scott, 178; S. C. 5 Bing. N. S. 227. ON motion for judgment in case of a nonsuit Per Cur.-The rule is settled, that, in a country cause where issue is joined in a non-issuable term, the defendant may move for judgment as in case of a nonsuit for not proceeding to trial in the term after the next assizes; but that, where issue is joined in an issuable term, he cannot move until two assizes have elapsed. Lapse of two sheriff's courts not sufficient*. (c) BEFORE THE SHERIFF. BUTTERWORTH v. CRABTREE, M. T. 1834. Ex. 1 C., M. & R. 519; S. C. 3 D. P. C. 184; S. C. 5 Tyrw. 149. AFTER a Judge's order for trial before the sheriff of a country cause, the plaintiff omitted to give notice of trial until after the lapse of two sheriff's courts. The Court held, that the defendant was not entitled to move for judgment as in case of nonsuit. III. RELATIVE TO THE MOTION AND RULE FOR, AND (a) OF THE MOTION AND RULE†. *Notice of trial before the sheriff being given for a day in term, the plaintiff cannot move for judgment for not proceeding to trial in that term. So, semble, in town causes; but costs of the day incurred may be moved for by distinct motion in such term. (Lenney v. Poluden, E. T. 1835, Ex., 3 D. P. C. 650; 5 Tyrw. 819). So, issue joined in a town cause in Hilary vacation on the 2nd of February, and an order obtained on the 3rd to try before the sheriff:-Held, that it was too early to apply for judgment as in case of a nonsuit in the following Easter Term, although several sheriff's court days had passed since the order was obtained. (Stacey v. Jeffrys, E. T. 1837, B. C., 5 D. P. C. 524). So, where issue was joined on the 20th of June, and notice given for trial at the sheriff's court on the 18th July, which the plaintiff countermanded :-Held, that a motion in the term next following, for judgment as in case of a nonsuit, was too early. (Maddeley v. Batty, M. T. 1834, Ex., 3 D. P. C. 205). But, a defendant may obtain judgment as in case of a nonsuit, where notice of trial has been given before the sheriff, pursuant to 3 & 4 Will. 4, c. 42, s. 17. (Walls v. Redmayne, E. T. 1834, B. C., 2 D. P. C. 508.-S. P. Horwood v. Roberts, 2 D. P. C. 534). The issue in a country cause, ordered to be tried before the sheriff, was joined on the 9th of August, but the plaintiff did not give notice of trial; a motion for judgment as in case of a nonsuit, in the Hilary Term following, was held to be premature. (Harle v. Wilson, E. T. 1835, Ex., 3 D. P. C. 658.-S. P. Horwood v. Roberts, T. T. 1834, B. C., 2 D. P. C. 534). The rule for judgment after a peremptory undertaking to be absolute in the first instance. (Reg. Gen., M. T. 1839, C. P., 4 Bing N. Š. 365). But a rule for (6) EXCUSE FOR NOT PROCEEDING. 1. Illness of the Judge*. 2. Illness of the Witness. HAM v. GREGG, M. T. 1826. K. B. 6 B. & C. 125. A CAUSE at the London sittings was made a remanet, but the plaintiff, on account of the absence of a material witness on the ground of illness, did not take the record to the marshal for trial. The Court held, that defendant was entitled to move for judgment as in case of a nonsuit. 3. Poverty. CLEASBY V. POOLE, M. T. 1834. Ex. 1 C., M. & R. 521; S. C. 3 D. P. C. 162; S. C. 4 Tyrw. 146.-S. P. FIELDER v. CROW, T. T. 1835. B. C. 4 D. P. C. 50. Illness of a witness is no excuse. THE plaintiff being poor and unable to furnish the attorney with Poverty no funds to carry on the suit The Court held that circumstance no answer. RADFORD V. SMITH, M. T. 1838. Ex. 7 D. P. C. 26; S. C. 4 M. & W. 100. answer, On a rule for judgment as in case of a nonsuit, an affidavit stated unless tempothat the plaintiff had been unable to proceed to trial in consequence rary. of being disappointed in the receipt of a remittance from the country, and that he expected to receive one so as to enable him to go to trial at any time after the 1st of July. Per Cur.-It is only that the plaintiff is not in funds at present, but expects to be so within a definite period.-Rule discharged upon a peremptory undertaking. judgment as in case of a nonsuit cannot be drawn up with a stay of proceedings. (Archer v. Smith, M. T. 1840, B. C., 9 D. P. C. 99). Where the rule for judgment as in case of nonsuit had been discharged on a peremptory undertaking, but the rule for the latter had never been served nor drawn up until after the period to which it referred had expired :-Held, that judgment signed for non-compliance was irregular. (Gingell v. Bean, H. T. 1840, C. P., 1 Scott, N. S. 153; S. C. 1 M. & G. 50). Where the rule is moved for after money has been paid into court under 7 & 8 Geo. 4, c. 71, there cannot be added that the money be taken out of court; it must be the subject of a separate and subsequent application. (De Bedolliere v. Ryan, E. T. 1839, B. C., 7 D. P. C. 615.-S. P. Vale v. Ganter, M. T. 1840, B. C., 9 D. P. C. 106). * Where a plaintiff has given a peremptory undertaking to try at a particular assize, and he is prevented from fulfilling it by the sudden illness of the Judge, that is not a sufficient excuse to prevent the defendant from obtaining judgment as in case of a nonsuit absolute. (Ward v. Turner, E. T. 1836, B. C., 5 D. P. C. 22). Insolvency of defendant an answer*, unless known to plaintiff before action brought; and discovery after filing declaration, no an swer. Defendant be 4. Insolvency. HOLLAND v. HENDERSON, M. T. 1838. Ex. 4 M. & W. 587.— The Court ordered the rule to be discharged with costs unless a stet processus were accepted. SMITH V. DAVIS, M. T. 1840. C. P. 9 D. P. C. 50; S. C. 2 Scott, N. S. 189; S. C. 1 M. & G. 961.—S. P. CUNNINGHAM v. REES, H. T. 1830. Ex. 1 Tyrw. 1. ON motion for judgment as in case of nonsuit, it did not appear distinctly that the defendant's insolvency became known to the plaintiff since the commencement of the action— The Court refused the plaintiff to take a stet processus, but granted the rule for a peremptory undertaking. MANN v. WILLIAMSON, M. T. 1840. Ex. 7 M. & W. 145; S. C. 8 D. P. C. 859.-S. P. FRODSHAM v. RUNT, T. T. 1835. B. C. 4 D. P. C. 90. ON motion for judgment as in the case of nonsuit, excuse that after filing the declaration the plaintiff discovered that the defendant was in insolvent circumstances The Court held this not a sufficient ground for awarding a stet processus. GINGELL v. BEAN, T. T. 1840. C. P. 1 Scott, N. S. 390; S. C. 1 M. & G. 555. THE plaintiff had become bankrupt, and the defendant, in prison, ing in prison an having given notice of his intention to apply for a discharge under answer. Obtaining a rule for a special the Insolvent Act The Court compelled him to accept a stet processus. 5. Special Jury, Rule for. TWYSDEN v. STULZ, T. T. 1838. C. P. 6 Scott, 434.-S. P. WEB- ON motion for judgment as in case of a nonsuit after a peremptory undertaking to try, the plaintiff obtained a rule for a special jury, * As taking the benefit of the Insolvent Debtors' Act. (Smith v. Badcock, E. T. 1836, Ex., 5 D. P. C. 91). So, where it does not appear that the plaintiff was unawares of the insolvency when he brought the action. (Lemon v. Hopson, T. T. 1838, B. C., 6 D. P. C. 795). It is no answer to a rule for judgment as in case of a nonsuit, that the plaintiff has been informed and believes the defendant is in insolvent circumstances. (Symes v. Amor, T. T. 1840, Ex., 8 D. P. C. 773). And, where a plaintiff has not proceeded to trial pursuant to his notice, if he sets up the insolvency of the defendant as an excuse for the default, he ought to shew by his affidavit in terms that the insolvency of the defendant was really his reason for not proceeding to trial. (Wainwright v. Gibson, M. T. 1840, B. C., 9 D. P. C. 100). thereby preventing the cause from being tried at the sittings after the last term. Tindal, C. J.-Whether or not the making a cause a special jury is a default within the statute will depend upon whether or not it is a reasonably proper cause to be tried by a special jury. 6. Cause not at Issue, or Action brought without Plaintiffs Consent, or where Debt and Costs previously paid*. (c) TERM'S NOTicet. IV. RELATIVE TO THE AFFIDAVIT‡. V. RELATIVE TO DISCHARGING THE RULE FOR, AND LEVY V. HUTCHINS, H. T. 1836. C. P. 1 Scott, 400. In answer to a rule for judgment as in case of nonsuit, the plaintiff's attorney swore that he had not added the similiter, nor had it been added to his knowledge or belief:-Held, a sufficient answer. (Martin v. Martin, 2 Scott, 389; 2 Bing. N. S. 240). The Court will discharge the rule for judgment as in case of a nonsuit, though the defendant swears the cause is at issue, if the plaintiff swears that the similiter has not been added. (Seabrook v. Cave, T. T. 1834, Ex., 2 D. P. C. 691). But it is no answer to a rule for judgment as in case of a nonsuit, that the proceedings were commenced against the defendant without the plaintiff's authority. (Barber v. Wilkins, M. T. 1836, Ex., 5 D. P. C. 305). But it is a sufficient answer to a rule for judgment as in case of a nonsuit, that the debt and costs have been paid after issue joined, and before the rule was obtained, although the payment has been made without the knowledge of the defendant's attorney. (Elias v. Elias, M. T. 1840, B. C., 9 D. P. C. 104). + The practice of not requiring a term's notice of proceeding before motion for judgment as in case of nonsuit declared to prevail in the Exchequer, assimilating the practice with that of other Courts, superseding the Rule of Trinity 26 & 27 Geo. 2. (Hockin v. Reece, E. T. 1828, Ex., 2 Y. & J. 275). An affidavit, shewing the plea and replication, and that the cause was thereby at issue:- Held insufficient. (Smyth v. Parslow, T. T. 1832, Ex., 2 C. & J. 217; S. C. 2 Tyrw. 284). But an affidavit in support of the motion, stating notice of trial given, is sufficient without alleging that the cause was at issue. (Corbyn v. Heyworth, M. T. 1837, C. P., 6 D. P. C. 181; S. C. 3 Scott, 335). In answer to a rule for judgment as in case of a nonsuit, the affidavit stated "that, since joining issue in the above-named cause, unexpected difficulties have arisen in procuring the necessary evidence to entitle the plaintiff to a verdict in his favour:" -Held a sufficient excuse. (Doe d. Ringer v. Blois, M. T. 1839, C. P., 8 D. P. C. 18). A motion on behalf of the same plaintiff in two different actions, upon the same ground of application, may be made upon one affidavit intitled in both actions. (Pitt v. Evans, M. T. 1833, Ex., 2 D. P. C. 226). § So, if a plaintiff does not proceed to trial, pursuant to notice, at the defendant's request, the rule will be discharged. (Doe d. Steppins v. Lord, M. T. 1833, K. B., 2 D. P. C. 419). So, where, upon a new trial granted, the defendant took down the cause by proviso, and the plaintiff obtained an order to put off the An indictment pending is a ground for discharging the rule§. The Court held this a sufficient excuse, and a rule for judgment as in case of nonsuit discharged, with costs. trial to the next assizes upon giving a peremptory undertaking to try then:-Held, that being a bargain between the parties, it was not necessary to make the order a rule of Court; and upon the plaintiff failing to try according to his undertaking, the Court granted judgment as in case of nonsuit. (Jones v. Pritchard, T. T. 1831, Ex., 2 Tyrw. 383). So, where a defendant has given a cognovit for the debt sought to be recovered in an action by the plaintiff, and the plaintiff does not proceed to trial, and the defendant obtains a rule for judgment as in case of a nonsuit, that rule will be discharged with costs. (Smith v. Joy, M. T. 1833, B. C., 2 D. P. C. 410). And where the plaintiff had accepted the debt and costs the Court discharged the rule without a peremptory undertaking. (Shrimpton v. Carter, E. T. 1835, Ex., 3 D. P. C. 648). So, where, upon the dissolution of partnership between the attornies who originally conducted the cause, one of them afterwards continued it, and a summons was attended without objection, the Court discharged a rule for setting aside a judgment as in case of nonsuit, on the ground of no order to change having been obtained. (Farley v. Hebbes, E. T. Ï835, K. B., 3 D. P. C. 538). A plaintiff who has given a peremptory undertaking to try at a particular sitting, is bound to be prepared for that purpose, although the defendant is not ready to proceed. (Saxon v. Swaby, T. T. 1835, B. C., 4 D. P. C. 105). So, where a peremptory undertaking had been given to try, but the plaintiff neglected to go to trial in time, because it was found that the declaration required amendment, and a proposal to refer was going on:-Held, that that was no excuse, and that the defendant was entitled to judgment as in case of a nonsuit. (Haines v. Taylor, E. T. 1834, Ex., 2 D. P. C. 644). Upon a peremptory undertaking being accepted, the Court permitted an order for costs of the day, "if any," to be added to the rule; but refused it where it appeared that notice of trial having been countermanded, there could have been none. (Doe v. Owen, E. T. 1836, Ex., 1 M. & W. 323). And if, after a motion for the costs of the day for not proceeding to trial, the plaintiff suffers another term to elapse without giving notice of trial, that is a new default, which entitles the defendant to move in the next term for judgment as in case of a nonsuit. (Dyke v. Edwards, E. T. 1833, Ex., 2 D. P. C. 53; semble contrà, Moseley v. Clark, E. T. 1833, Ex., 2 D. P. C. 66). Though a rule absolute for judgment as in case of a nonsuit has been obtained for not proceeding to trial, pursuant to a peremptory undertaking, yet if it appears to have been through mistake that notice of trial was not given in time, and no inconvenience has been sustained by the defendant in consequence, the Court will discharge the rule on payment of costs. (Charrington v. Meatheringhan, M. T., 1835, Ex., 4 D. P. C. 479). In a town cause, issue was joined and notice of trial given for the sittings in Michaelmas Term. The cause was made a remanet, but the plaintiff did not proceed to trial. In Easter Term, a rule was made absolute for costs of the day for not proceeding to trial, and subsequently a rule nisi was obtained for judgment as in case of a nonsuit, which rule was discharged in Trinity Term. In the same term the defendant obtained a similar rule nisi. No fresh notice of trial had been given:-Held, that the defendant was entitled to move for judgment as in case of a nonsuit. (Smith v. Pole, M. T., 1839, Ex., 7 D. P. C. 792; S. C.5 M. & W.491). In Michaelmas Term, 1837, plaintiff obtained a rule nisi for judgment as in case of a nonsuit, which was discharged upon a peremptory undertaking to try at the next assizes. After the assizes, and before the ensuing term, both parties agreed to a reference. The arbitrator omitted to make his award within the time limited:-Held, that the peremptory undertaking was put an end to by the agreement of reference. (Spurr v. Rayner, T. T. 1839, Ex., 7 D. P. C. 467; sed vide supra). Where a plaintiff gives a peremptory undertaking to try at the next practicable sheriff's court, he is bound to take proper steps to try the cause before the defendant obtains judgment absolute as in case of a nonsuit, although for that purpose it may be necessary for him to obtain a special appointment of a court from the sheriff. (Sell v. Adam, T. T. 1839, B. C., 7 D. P. C. 672). And, where a plaintiff does not proceed to the trial of an issue before the under-sheriff pursuant to notice, the time at which he would be compelled to proceed by the Court will be regulated by the times at which the sheriff sits. (Banks v. Wright, M. T. 1834, B. C., 3 D. P. C. 14). In all cases of peremptory undertaking to try, a fresh notice of trial should be given, though the cause remains in the paper. (Sulsh v. Cranbrook, M. T. 1831, B. C., 1 D. P. C. 148). |