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1827.

service of a writ is irre

LLOYD V. HAWKYARD.

Where the PATTESON had obtained a rule nisi for setting aside the service of the writ in this case for irregularity, with costs, upon the ground that it had been served out of, and beyond the borders of the county, to the sheriff of which it was directed.

gular, but the defendant, on receiving

notice of declaration, says, "It is all right, I will

call and settle the debt and costs:" the irregularity is waived.

J. Jervis shewed cause, and admitted the irregularity, but contended that it had been waived, and he produced an affidavit stating, that when the notice of declaration 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 (b), and

(a) 7 J. B. Moore, 461; 1 Bingh. 132.

(b) Hompay v. Kenning, 2 Chitty, Rep. 236. Where the defendant's attorney wrote a letter to the plaintiff, stating that he would appear and receive a declaration, and offering security for costs, it was

held, that the attorney was bound by his undertaking; and that an irregularity in the service of a latitat, which had been served before the day on which it bore teste, was waived by such undertaking, although, at the time the letter was written, the irregularity had not

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.

Rule discharged with costs (a).

been discovered. Anon. 1 Chitty Rep. 129. Such an undertaking is a waiver of an objection arising from misnomer, though it does not appear that the attorney was aware

of the defect. Lowe v. Clarke, 2
Chitty Rep. 240.

(a) And see Tidd, 8th edition,
562, 3, 4, and the cases there
collected.

1827.

LLOYD

v.

HAWKYARD.

CORNFORTH v. LowсOCK.

CHITTY had obtained a rule, calling upon the plaintiff In an action

to shew cause why, upon payment by the defendant of 41. 15s., the amount of the debt for which the action was brought, the proceedings should not be stayed; and why the costs of this application should not be paid by the plaintiff. He produced an affidavit stating that the amount of the debt for which the action was brought, was 47. 15s. only, and that at the time of the commencement of the action, the defendant was resident within the jurisdiction of the Birmingham Court of Requests; and suggesting, that no person to whom a debt is owing, not exceeding 51., 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.

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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for a debt recoverable in a Court of Requests, where

the plaintiff might after deprived of costs, this

verdict be

Court will stay the propayment of ceedings on the debt with

out costs.

1827.

v.

Lowcock.

strued, or even surmised, to do more, than give the deCORNFORTH fendant 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. After judgment by default, and the damages assessed upon a writ of inquiry, the defendant, under the London Court of Requests Act (39 and 40 Geo. 3, c. 104), may move to stay proceedings on payment of the damages assessed without costs. In Robinson v. Vickers, 1 Chit. Rep. 636, note, it is said, that under the London Court of Requests Act, the practice is to stay proceedings on paying the money, without costs, and not to require a suggestion. But where a defendant, living within the jurisdiction of the Westminster Court of Requests, was sued in a superior Court for a debt under

forty shillings, and neglected to take advantage of the stat. 23 Geo. 2, by pleading it in bar, or taking the objection at the trial, the Court would not, after verdict for the plaintiff, suffer a suggestion to be entered, or stay the proceedings.. Taylor v. Blair, 3 T. R. 452; 1 Fast, 454, n. If it appear on the face of the declaration, or it is admitted on the part of the plaintiff, or shewn by affidavit, (Kennard v. Jones, 4 T. R. 495; Wellington v. Arters, 5 T. R. 64; Melton v. Garment, 2 N. R. 84; Anon. 2 Chitty R. 395), as a matter of fact, and not of mere inference, (Lowe v. Lowe, 1 Bingh. 270; 8 J. B. Moore, 220), and not denied

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.

that the debt is under forty shillings, and recoverable in an inferior jurisdiction (Eames v. Williams, 1 D. & R. 359), the Court will stay the proceedings as beneath its dignity (2 Inst. 210, 211; 2 Comyns's Rep. 713); the true sense of which phrase has been said to be, that the Court will take care that the administration of justice is not made a heavy oppression, where the interest is so small that it would be only indulging vexation and passion to give the relief. (Per Lord Eldon, 10 Ves. 551). But as the plaintiff cannot sue in the County Court unless the whole cause of action have arisen within the county, and, it is said, unless the defendant reside there, the action must be brought in the superior Court, where either of these circumstances fails, although the demand be for less than forty shillings. Tubb v. Woodward, 6 T. R. 175; Busby v. Fearon, 8 T. R. 235. In the latter case this Court refused to interfere, on the ground that the plaintiffs resided in Middlesex, whereas the Act creating the inferior Court,

Rule accordingly.

limits its jurisdiction to causes where both parties reside within the district. But where the cause o action arises within the jurisdiction of an inferior Court, created by the common law, there appears to be no objection to proceeding there against a non-resident defendant, if he can be served with process within the jurisdiction, or will appear gratis, or upon irregular process. The non-residence is, however, such an obstacle as would justify the plaintiff in suing in the Courts at Westminster. The latter point only is settled in Welsh v. Troyte, 2 H. Bla. 29; and though it was there stated, arguendo, that an action was not maintainable in the County Court against a non-resident, the references by no means support the position. And see Bro. Abr. Summons, pl. 22; Wheeler v.

-, Freeman,468; Bro. Abr. Responder, pl.12; Jenk. 57, pl. 7. If an action be brought in the County Court, where that Court has no jurisdiction, the defendant may have a prohibition after judgment. F. N. B. 42 F.

1827.

CORNFORTH

บ.

Lowcock.

1827.

DRIVER V. HOOD.
7BH.494.

An affidavit COMYN had obtained a rule, calling upon the plaintiff

of debt, on an

award direct- to shew cause, why the bail-bond executed in this cause should not be delivered up to be cancelled, on the defend

ing money to be paid by defendant to plaintiff upon demand, not alleging a demand, is insufficient.

ant's filing common bail, and why the plaintiff or his attorney should not pay the costs of the application; and ordering that in the mean time proceedings should be stayed. 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 177. 17s., the costs of the reference, and that Hood should upon demand repay to Driver that sum ;" that Driver paid the 177. 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 177. 17s., 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 177. 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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