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1827.

LLOYD 0. HAWKYARD. Where the PATTESON had obtained a rule nisi for setting aside service of a writ is irre

the service of the writ in this case for irregularity, with gular, but the costs, upon the ground that it had been served out of, defendant, on receiving and beyond the borders of the county, to the sheriff of notice of declaration,

which it was directed. says, “ It is all right, I will call and settle

J. Jervis shewed cause, and admitted the irregularity, the debt and but contended that it had been waived, and he produced costs :" the irregularity is an affidavit stating, that when the notice of declaration waived.

was served upon the defendant, he accepted it, saying, “it is all right; I will call and settle the debt and costs.” This, he contended upon the authority of Rawes v. Knight (a), was a waiver of the previous irregularity. There the service of the process was clearly irregular, but the defendant, after notice of declaration, requested that further proceedings might be stayed, and promised to pay the debt and costs; and it was held that this was a waiver of the irregularity.

Per CURIAM.— It is quite clear, both upon principle, and upon the authority of the case cited, that the defendant has, by his subsequent conduct, waived the previous irregularity in these proceedings. The case cited is not distinguishable from the present; and the principle is a sound and plain one, that where a defendant means to take advantage of an irregularity in point of form in the plaintiff's proceedings, he must act promptly (6), and

(a) 7 J. B. Moore, 461; 1 held, that the attorney was bound Bingh. 132

by his undertaking; and that an (b) Hompay v. Kenning, 2 Chitty irregularity in the service of a latiRep. 236. Where the defendant's tat, which had been served before attorney wrote a letter to the plain- the day on which it bore teste, tiff, stating that he would appear was waived by such undertaking, and receive a declaration, and of- although, at the time the letter was fering security for costs, it was written, the irregularity had not

1827.

not by lying by lure the plaintiff on to incur increased expenses. This rule must be discharged, and as it was moved with costs, it must be discharged with costs also.

LLOYD

HAWKYARD.

Rule discharged with costs (a).

been discovered. Anon. 1 Chitty of the defect. Lowe v. Clarke, 2
Rep. 129. Such an undertaking Chitty Rep. 240. .
is a waiver of an objection arising (a) And see Tidd, 8th edition,
from misnomer, though it does not 562, 3, 4, and the cases there
appear that the attorney was aware collected.

costs, this

CORNFORTH v. Lowcock. CHITTY had obtained a rule, calling upon the plaintiff In an action to shew cause why, upon payment by the defendant of for a debt re

coverable in a 41. 15s., the amount of the debt for which the action was Court of Rebrought, the proceedings should not be stayed; and why the plaintiff

quests, where the costs of this application should not be paid by the might after

verdict be plaintiff. He produced an affidavit stating that the deprived of amount of the debt for which the action was brought, was

Court will 41. 15s. only, and that at the time of the commencement stay the proof the action, the defendant was resident within the juris- payment of diction of the Birmingham Court of Requests; and sug- the debt withgesting, that no person to whom a debt is owing, not exceeding 5l., and recoverable by the statutes 25 Geo. 2, c. 31, and 47 Geo. 3, sess. 1, c. 14, from any person resident within the jurisdiction of the Birmingham Court of Requests, can recover costs, if he sue elsewhere than in that Court; wherever the plaintiff may reside, or the cause of action accrue.

out costs.

Comyn shewed cause. This application, taken altogether, is unprecedented, and cannot be entertained. None of the Court of Requests Acts have ever yet been con

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1827.

CORNFORTH

v. Lowcock.

strued, or even surmised, to do more, than give the defendant the means of depriving the plaintiff of his costs, after a verdict of a certain amount has been found. That is the object expressed in all the acts; and if the further object of enabling the defendant to stay the proceedings upon his own affidavit had been contemplated, that would doubtless have been expressed also. In the absence of express authority for this proceeding, the Court cannot interfere. Besides, the rule, even if it could be sustained at all, cannot be made absolute in its present shape, for it prays too much; it goes the length of asking that the plaintiff shall pay the costs, whereas the utmost the statute does is to protect the defendant from paying them.

Per CURIAM.—The rule certainly asks too much, for we have no authority under this act of parliament to order the plaintiff to pay costs; the utmost scope of it is to deprive the plaintiff of the privilege of receiving costs. With respect to the other part of the rule, we see no objection to it. There have been cases upon similar acts of parliament in which motions to stay the proceedings have been granted (a), and in the present case it is mercy

(a) Dunster v. Day, 8 East, 239. forty shillings, and neglected to After judgment by default, and the take advantage of the stat. 23 damages assessed upon a writ Geo. 2, by pleading it in bar, or of inquiry, the defendant, under taking the objection at the trial, the London Court of Requests the Court would not, after verdict Act (39 and 40 Geo. 3, c. 104), for the plaintiff, suffer a suggestion may move to stay proceedings on to be entered, or stay the proceedpayment of the damages assessed ings.. Taylor v. Blair, 3 T. R. without costs. In Robinson v. 452; 1 Fast, 454, n. If it

appear Vickers, 1 Chit. Rep. 636, note, on the face of the declaration, or it is said, that under the London it is admitted on the part of the Court of Requests Act, the prac- plaintiff, or shewn by affidavit, tice is to stay proceedings on pay- (Kennard v. Jones, 4 T. R. 495; ing the money, without costs, and Wellington v. Arters, 5 T. R. 64; not to require a suggestion. But Melton v. Garment, 2 N. R. 84; where a defendant, living within Anon. 2 Chitty R. 395), as a matter the jurisdiction of the Westminster of fact, and not of mere inference, Court of Requests, was sued in a (Lowe v. Lowe, 1 Bingh. 270; 8 superior Court for a debt under J.B. Moore, 220), and not denied

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1827.

to the plaintiff to grant this motion, because he must proceed, if at all, with the certainty of losing his costs. We think the justice of the case is, that a stet processus should be entered, without costs on either side.

CORNFORTU

Lowcock.

Rule accordingly.

that the debt is under forty shil- limits its jurisdiction to causes lings, and recoverable in an infe- where both parties reside within rior jurisdiction (Eames v. Wil- the district. But where the cause liams, 1 D. & R. 359), the Court o action arises within the juriswill stay the proceedings as be- diction of an inferior Court, creatneath its dignity (2 Inst. 210, 211; ed by the common law, there 2 Comyns's Rep. 713); the true appears to be no objection to prosense of which phrase has been ceeding there against a non-resisaid to be, that the Court will take dent defendant, if he can be served care that the administration of with process within the jurisdicjustice is not made a heavy op- tion, or will appear gratis, or upon pression, where the interest is so irregular process. The non-resismall that it would be only in- dence is, however, such an obstacle dulging vexation and passion to as would justify the plaintiff in give the relief. (Per Lord Eldon, suing in the Courts at Westmin10 Ves. 551). But as the plaintiff ster. The latter point only is cannot sue in the County Court settled in Welsh v. Troyte, 2 H. unless the whole cause of action Bla. 29; and though it was there have arisen within the county, and, stated, arguendo, that an action it is said, unless the defendant was not maintainable in the Counreside there, the action must be ty Court against a non-resident, brought in the superior Court, the references by no means supwhere either of these circumstances port the position. And see Bro. fails, although the demand be for Abr. Summons, pl. 22; Wheeler v. less than forty shillings. Tubb v. -, Freeman,468; Bro. Abr. ReWoodward, 6 T. R. 175; Busby v. sponder, pl.12; Jenk. 57, pl. 7. If Fearon, 8 T. R. 235. In the latter an action be brought in the County case this Court refused to inter- Court, where that Court has no fere, on the ground that the plain- jurisdiction, the defendant may tiffs resided in Middlesex, whereas have a prohibition after judgment. the Act creating the inferior Court, F. N. B. 42 F.

1827.

DRIVER v. Hood. An affidavit COMYN had obtained a rule, calling upon the plaintiff

7/3,2494. of debt, on an award direct- to shew cause, why the bail-bond executed in this cause ing money to should not be delivered up to be cancelled, on the defendbe paid by defendant to ant’s filing common bail, and why the plaintiff or his attorplaintiff upon demand, not

ney should not pay the costs of the application; and oralleging a dering that in the mean time proceedings should be staydemand, is insufficient. ed. The question intended to be agitated, arose upon

the affidavit to hold to bail, which stated=that by an order of Nisi Prius, all matters in difference between the parties in a cause in which Hood was plaintiff, and Driver was defendant, were referred to an arbitrator; that the order of Nisi Prius was duly made a rule of Court; that the arbitrator duly made his award, whereby he awarded“ that Hood had no cause of action against Driver, and that there were no damages payable from Driver to Hood in respect of the matters referred, that Driver should upon receipt of the award, pay to the arbitrator's attorneys 171. 178., the costs of the reference, and that Hood should upon demand repay to Driver that sum ;" that Driver paid the 171. 17s. to the arbitrator's attorneys; that Driver's costs in defending the cause were taxed at 71. 7s. 6d., which sum, together with the said sum of 171. 178., amounted to 251. 4s. 6d.; and that Hood was justly and truly indebted to Driver in the said sum of 251. 4s. 6d., under and by virtue of the said order, rule and award.

Chitty shewed cause. The objection intended to be raised against this affidavit to hold to bail, is, that it does not allege that the sum of 171. 17s. was demanded by Driver of Hood. Such an allegation was unnecessary. It was not requisite to make any demand, for the award gave Driver an immediate and perfect right of action against Hood for the money, which was to all intents and purposes money paid by Driver to the

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