VI. RELATIVE TO MAKING THE RULE ABSOLUTE*. VII. RELATIVE TO THE EFFECT OF THE RULET. JONES v. Hows, E. T. 1837. Ex. 5 D. P. C. 600; S. C. 2 M. & W.379. THE plaintiff, after default made on the 14th, gave a fresh notice of trial for the 18th, when the plaintiff obtained a verdict; but the defendant obtained a rule for judgment as in case of a nonsuit, on the 15th. The Court set aside the verdict and discharged the rule for judgment on a peremptory undertaking, and payment of costs of the day on the first default, and of the rule. A verdict after rule for judgment in case of nonsuit will be set asidet. VIII. RELATIVE TO THE COSTS. BROWN v. TANNER, M. T. 1824. Ex. 1 M'Clel. 593. ISSUE had been joined in Trinity Term, 1824, and notice of trial Costs of mohad been given for the ensuing assizes held at Oxford on the 28th of tion costs in July. But the plaintiff's attorney having been engaged in London the cause‡. In support of a rule to enlarge a peremptory undertaking, where the plaintiff has made only one default, in consequence of the absence of a material witness, the affidavit need not state the name of that witness. (Montfort v. Bond, M. T. 1833, B. C., 2 D. P. C. 403). * Where a plaintiff has given a peremptory undertaking, (but not by rule), the rule for judgment as in a case of nonsuit, for not fulfilling that undertaking, is nisi in the first instance. (Vokins v. Snell, M. T., 1833, B. C., 2 D. P. C. 411). But, where a plaintiff has given a peremptory undertaking to try at a particular sittings in term, and he has allowed those sittings to pass without giving notice of trial, judgment absolute may be obtained in the same term. (Ashton v. Johnstone, H. T. 1840, B. C., 8 D. P. C. 299). Upon a rule for judgment as in case of nonsuit, the plaintiff must shew some excuse, and the defendant is not obliged to accept a peremptory undertaking, but may make the rule absolute. (Nicholl v. Collingwood, E. T. 1833, Ex., 2 D. P. C. 60). 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:- Held, that the defendant was not entitled to a rule absolute for judgment as in case of a nonsuit. (Williams v. Edwards, E. T. 1835, Ex., 3 D. P. C. 660). + After judgment of nonsuit the cause is over, and therefore no motion can be made to dispauper the plaintiff. (Jenkins v. Hyde, E. T. 1817, K. B., 6 M. & Selw. 228). The circumstance, that an order to try before the sheriff has been obtained, makes no difference in the time within which judgment as in case of a nonsuit may be moved for, no notice of trial having been given. (Harle v. Wilson, E. T. 1835, Ex., 3 D. P. C. 658). Where a rule for judgment as in case of a nonsuit is discharged on a peremptory undertaking, the defendant may still apply for costs of the day. (Lewis v. Thomas, M. T. 1825, K. B., 6 D. & R. 217). But the Court refused to grant the costs of the day as a condition of discharging the rule for judgment as in case of nonsuit, but would make it a separate part of the order. (Lenniker v. Barr, E. T. 1832, Ex., 1 D. P. C. 563; S. C. 2 C. & J. 473; vide Reg. Gen., post). Rule 69 of 1 Reg. Gen. H. T., 2 Will. 4, does not enable the Court, where a rule for judgment as in case of a nonsuit for not proceeding to trial is made absolute, to grant the defendant the costs of the day in disposing of that motion. (Johnson v. Smith, E. T. 1832, B. C., 1 D. P. C. 421). Upon an application to enlarge a peremptory undertaking, after several de In case of bank ruptcy security for costs must be given. Though an ac in attending a reference in a cause in this Court, wherein he was himself the plaintiff, from the 21st to the 25th of July, and having been unable to return into the country in time to prepare for the trial, had countermanded the notice. The only question was, whether the plaintiff should pay the defendant the costs of the application, or they should abide the event of the cause, the defendant's counsel insisting that he was entitled to them by the practice in this Court. Per Cur.-Let them be costs in the cause. TAYLOR v. MONTAGNE, M. T. 1836. Ex. 2 M. & W. 315. THE plaintiff's right of action became by his bankruptcy vested in his assignees, who refused to proceed in the suit The Court refused to discharge the rule for judgment as in case of nonsuit, unless security were given for costs. MUDRY v. NEWMAN, T. T. 1834. Ex. 1 C., M. & R. 402; S. C. 2 D. P. C. 695; S. C. 4 Tyrw. 1023. THE attorney commenced the action without the plaintiff's knowtion be brought ledge or consent; and the defendant obtained judgment as in case of without plain tiff's know ledge, he is lia ble to costs. After the rule for the judgment discharged, a rule may be obtained for the costs. In the Exchequer, the costs of the day should be previously applied for*. nonsuit The Court held, that the plaintiff was liable for the costs, and his only remedy was against the attorney. THOMAS V. WILLIAMS, E. T. 1825. K. B. 4 B. & C. 260. On a rule for a judgment as in case of a nonsuit, it was stated that it was laid down in Tidd's Practice, 818, (eighth edition), that the defendant cannot move for judgment as in case of a nonsuit and costs for not proceeding to trial at the same time, nor after moving for the former is he allowed to apply for the latter; and the same rule is laid down in Hullock on Costs, 804, and in Archbold's Practice. Bayley, B., however, was of opinion, that, notwithstanding what appeared in the books of practice, a rule for costs might be obtained after the rule for judgment as in case of a nonsuit was discharged. HOCKIN v. REID, E. T. 1831. Ex. 1 C. & J. 466; S. C. 1 Tyrw. 386. ON motion for judgment as in case of nonsuit The Court said, in the Exchequer, the rule is to move for costs of the day before that for judgment as in case of a nonsuit, but it may be done after the latter rule is made absolute, if that be silent as to costs. faults, the Court will make the plaintiff pay the costs of the last application. (De Rutzen v. John, H. T. 1836, B. C., 5 D. P. C. 400). And a mere proposal to refer made after the commission day held too late, and not to exempt the plaintiff from liability to pay the costs of the day. (Eaton v. Shuckburgh, E. T. 1834, Ex., 2 D. P. C. 624). *By Reg. 69, H. T. 2 Will. 4, no motion for judgment shall be allowed after motion for costs for not proceeding to trial for the same default, but such costs may be moved for separately. WEST V. PRYCE, H. T. 1825. C. P. 2 Bing. 455. On the 27th of November, 1824, judgment as in case of a nonsuit was entered up in an action which had been commenced by the bankrupt before his bankruptcy against the defendant, and in which, after having withdrawn the record at a previous sitting, he had, on the 10th of November, obtained time to enter the issue. On the 22nd of the same month he became bankrupt. The bankrupt's assignees obtained a verdict. A rule was applied for to set off these costs against the costs of the judgment as in case of a nonsuit— But the Court, though they expressed themselves willing to carry the practice of setting off costs as far as it could be allowed, thought that this was a case to which they were not warranted in extending it, either by precedent or justice; that whether the costs. of the nonsuit were or were not recoverable under the bankrupt's commission, there was no mutual credit between the defendant and the bankrupt's assignees, nor were the parties in the two actions the same. PARTINGTON v. WYATT, E. T. 1830. C. P. 6 Bing. 171; S. C. 3 M. & P. 316. A SPECIAL motion for discharging a rule for judgment as in case of nonsuit, upon a peremptory undertaking, ordered to be referred to the officer to tax the costs of the trial, unless the plaintiff should shew sufficient cause to the officer at the time of such taxation, who had refused to allow any The Court refused to interfere, as his power was discretionary. The costs of, not The Court refused to interfere with the Master's discretion, where the costs of the rule had been referred to him. IX. RELATIVE TO SETTING ASIDE*. Notary. See tit. Apprentice. POOLE v. DUCAS, T. T. 1834. C. P. 1 Bing. N. S. 649. In an action on a bill of exchange, it appeared that the notary's clerk, who presented the bill dishonoured, made an entry at the time in the usual course of business The Court held, that upon proof of his death such entry was admissible. Note, Promissory. See tit. Bills and Notes. * Where the rule had been obtained for judgment as in case of nonsuit, and judgment signed, the Court refused an application to set aside the rule, on the ground of having been moved contrary to an express understanding between the plaintiff's attorney and the defendant's counsel at an accidental interview. (Richardson v. Peto, M. T. 1840, Q. B., 9 D. P. C. 73). An entry by a notary's clerk is evidence after his death. Not Guilty*, plea of. See tits. Case, Action on-Libel- A party acting bonâ fide under 7 & 8 Geo. 4 is entitled to noticet. Notice of Action. See ante, tit. Action, Notice of. BEECHY V. SIDES, T. T. 1829. K. B. 9 B. & C. 806. By the act 7 & 8 Geo. 4, c. 30, (for consolidating the laws relating to malicious injuries to property), sect. 41, it is enacted, "That in all actions to be commenced against any person for anything done in pursuance of the act, notice in writing of such action, and the cause thereof, shall be given to the defendant one calendar month before the commencement of the action." In an action brought by A., who, for a supposed malicious injury to property, had been taken into custody by B., who bonâ fide believed that he was acting in execution of the act The Court held, that B. was entitled to notice of action. Notice by Advertisement. Notice of Bail. See ante, tit. Bail. *By Rule H. T. 4 Will. 4, in actions on the case, the plea of "not guilty" shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement, and no other defence than such denial shall be admissible under that plea: all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration. By Rule H. T. 4 Will. 4, in actions of trespass quare clausum fregit, the plea of "not guilty" shall operate as a denial that the defendant committed the trespass in the place mentioned, but not as a denial of the plaintiff's possession or right of possession of that place, which, if intended to be denied, must be traversed specially. By the same Rule, in action of trespass de bonis asportatis, the plea of “not guilty" shall operate as a denial of the defendant's having committed the trespass by taking or damaging the goods mentioned, but not of the plaintiff's property therein. In an action against excise officers for a seizure, the notice of action must be proved in the first instance, before any other evidence is given.-The plaintiffs slept at different houses, away from their places of business, but a servant slept on the premises of the latter; quære, whether the notice of action properly describes the plaintiffs as of the place of business, the statute requiring it to state their place of abode? (Johnson v. Lord, M. T. 1830, N. P., 1 M. & M. 444). Proof of notice being advertised in a country newspaper is not a sufficient proof of notice to a party, without some proof that he took in the paper in question. (Norwich Navigation Company v. Theobald, H. T. 1828, 1 M. & M. Î53). Notice to Carriers. See, ante, tit. Carriers. Notice to produce. See, ante, tit. Evidence. Notice to Quit. I. RELATIVE TO, WHEN IT IS OR IS NOT ESSENTIAL, p. 49. II. RELATIVE TO, BY WHOM TO BE GIVEN, p. 50. III. RELATIVE TO, TO WHOM TO BE GIVEN, p. 51. IV. RELATIVE TO THE FORM OF, p. 51. V. RELATIVE TO THE EFFECT OF, p. 52. I. RELATIVE TO, WHEN IT IS OR IS NOT ESSENTIAL. DoE d. TILT v. STRATTON, M. T. 1827. C. P. 4 Bing. 446; S. C. 1 M. & P. 183; S. C. 3 C. & P. 164. THE defendant entered upon an agreement for a lease of seven years, but which was never executed. Although only an agreement for a lease be entered into, a The Court held, that during the seven years notice to quit would have been necessary, but not at the end of that period, the original notice to quit contract being sufficient notice. DoE d. PARKER v. BOULTON, E. T. 1817. K. B. 6 M. & Selw. 146. must be given*. P., THE lessor of the plaintiff, being seised in fee of lands, having Where an entry agreed for the sale thereof to W., on or before a certain day, the is in anticipavendee before that day agreed to let them to the defendant, who, tion, conveywith the permission of the vendor, was let into possession as tenant cuted, no notice ance being exeto W. The conveyance was after the stated day executed, whereby to quit need be the lands were conveyed to W., but for the use of P. the vendor given. for a term, subject to a proviso for redemption by W., on payment of the purchase-money, for default of which the ejectment was brought. The Court held, that the entry and possession of the defendant being only that of W., by anticipation, no notice to quit was neces sary. And the fear of a distress from a superior landlord does not dispense with notice. (Rickett v. Tullock, 1833, N. P., 6 C. & P. 66). |