1839. Doe dem. THOMAS v. SHADWELL. Where a deejectment improperly ob fendant in tained a tenant right to proper- V. WILLIAMS shewed cause against a rule obtained by Chilton for staying proceedings in the present action, until the costs of a former one were paid. It appeared, from the affidavits, that a former action of ejectment had been brought, in which the present defendant was the lessor of the plaintiff, and the present lessor of the plaintiff the defendant. The cause came on for trial, and it was contended, on the part of the lessor of the plaintiff, that Thomas, who had obtained possession of the premises as tenant, could not impugn the title of his landlord, who was the lessor of the plaintiff. The answer to this was, that Thomas had come into possession of the premises under a lease granted by a person who was tenant in tail, and who had subsequently died. It was contended, therefore, that he was at liberty to contest the title of Shadwell. inquiry, however, it appeared that the person granting lease was tenant in fee, and the ancestor of Shadwell. The lease was proved to be still in existence, and the Court was proceeded with On the of opinion that it operated as an estoppel to Thomas from contesting the title of the lessor of the plaintiff. The real question as to title between the parties was consequently not tried. The present action of ejectment was then brought by Thomas as heir ex parte maternâ, to recover a different part of the estate, but which was held exactly under the same title. V. Williams contended that the present case did not come within the general rule, according to which, costs of a former ejectment were required to be paid, before the latter one was allowed to proceed. Here the necessity for bringing the second ejectment arose from the conduct of the lessor of the plaintiff in the former one, in 'shutting out the question of title to the premises by availing himself of an estoppel. There was consequently no ground for making the present rule absolute. afterwards brought another ejectment in respect of other property, part of the same estate, held under the same title, he was compelled to pay the costs of the former action, in which he was defendant, before he his own. 1839. DOE d. THOMAS 0. SHADWELL. Chilton, in support of the rule, contended, that the practice perfectly warranted the present application. In Tidd's Practice (a), it was laid down, "it matters not whether the second ejectment be brought by the lessor of the plaintiff, or by the defendant in the former one; or by or against all, or some of the parties; or by a third person, under whom the lessor of the plaintiff claims; or for the same or different premises, so as it be on the same title, and for part of the same estate; nor whether it be brought in the same, or a different Court." The conduct of the defendant in the former action, Thomas, was exceedingly vexatious. Instead of bringing an action of ejectment, in order to try the title to the premises, he thought proper to place himself in the position of a tenant, so that he might have the advantage of being a defendant in such an action. It was perfectly right, therefore, that the lessor of the plaintiff should avail himself of the estoppel, which the defendant by his own act had created. Cur, adv. vult. PATTESON, J.-This was a question on a rule to stay the proceedings in an ejectment, until the costs of a former ejectment were paid. I have no doubt, that the fact of the party, who was defendant in one action, being the lessor of the plaintiff in the other, makes no difference as to granting the present application; and indeed, it is not contended that it does (b). The only point contended for was, that in the first ejectment the lessor of the plaintiff took advantage of the estoppel as between tenant and landlord, and so prevented the defendant from setting up a different title to the property. But the answer to that objection is, I think, satisfactory, namely, that the defendant obtained admission into the property in a way which (a) P. 1232-3, ed. 9. (b) See Doe d. Rees v. Thomas, 4 Ad. & El. 348. was not right. He ought, instead of doing so, to have made himself plaintiff in an action of ejectment, and so have tried his title. The case, therefore, comes within the usual course of practice on these applications, and the rule must be made absolute. Rule absolute. 1839. DOE d. THOMAS v. SHADWELL. NORTON v. MACKINTOSH. in demurrer, and gives notice of trial of issues IN this case the defendant demurred to the plaintiff's If a party joins replication. The plaintiff joined in demurrer, and gave notice to try certain issues in fact, which had been joined on the record at the sittings in London. The plaintiff obtained a rule for setting aside the demurrer as frivolous. F. Robinson shewed cause against the rule, and contended, that after the plaintiff had joined in demurrer, whether the demurrer was frivolous or not, he could not apply to set it aside, more particularly when he had given notice of trial of the issues in fact. Stephen, Serjt., contended, that the present application was merely collateral, and quite consistent with the joinder in demurrer. That was clearly frivolous, and the joinder could not be considered as a waiver. PATTESON, J.-The rule of Court on which this motion is made is that of H. T., 4 Wm. 4, s. 2, of the General Rules (a), which says, that the Court may set aside a demurrer as frivolous, not that it must do so; but generally, if a party takes a step after an irregularity, he cannot complain of the irregularity. Here, I think, a similar rule applies. (a) Ante, Vol. 2, p. 304. Cur, adv. vult. in fact, he can not apply to set aside the de murrer as fri volous. 1839. NORTON v. MACKINTOSH. PATTESON, J.-I have no doubt in this case (as, indeed, I intimated during the course of the argument on the case), that it is impossible for any one, whether plaintiff or defendant, to move to set aside a demurrer as frivolous, after he has joined in demurrer, and has made up the issue, and has passed the record for trial. I say nothing as to whether this demurrer is frivolous or not. The rule must, therefore, be discharged, but not with costs. Rule discharged without costs. Ten days is too great delay in applying to set aside the ser vice of a writ of summons, on the ground, effected in the wrong county. statute, is not a DAVIS v. SKERLOCK. J. W. SMITH shewed cause against a rule, obtained by V. Williams, for setting aside the service of a writ of summons, on the ground of irregularity. The objection was, that although he was described in the writ as of a place in the county of Caermarthen, he was served in the county of the borough of Caermarthen. The affidavit, in support of the application, stated that to be an exclusive jurisdiction, and that the service was effected more than two hundred yards from the boundary line, and that there was no dispute as to boundary. In answer to the rule, it was sworn that the county of the borough of Caermarthen was wholly situated within, and surrounded by, the county of Caermarthen. The service was effected on the 5th January, but the motion to set aside that service was not A county of made until the 15th, the 5th day of the Term. Smith contended that the application was too late, according to the directions of 1 Reg. Gen. H. T., 2 Wm. 4, s. 33 (a), which required motions of this sort to be made "within a reasonable time." He cited Cox v. Tullock (b), Tyler v. Green (c), and Hinton v. Stevens (d), which shewed that cause sufficient to prevent the latter from applying to set aside an irregu lar service of the writ. a borough sur rounded by another county, is not within the meaning of the 2 Wm. 4, c. 39, s. 20, which applies to serving writs in parts of counties, situate within other counties. (a) Ante, Vol. 1, p. 187. (c) Ante, Vol. 3, p. 439. the application in such cases as the present, must be made within four days from the time of the service. Here, however, a period of ten days had been allowed to elapse, between the service and the application. Moreover, the plaintiff had entered an appearance for the defendant under the statute, which must be considered as a step taken by the defendant. This was an objection to the application, under the second branch of the rule already cited. There was, however, a third and complete answer to the rule contained in section 20 of the 2 Wm. 4, c. 39. (The Uniformity of Process Act). By that section it is provided that "whereas there are in divers parts of England certain districts and places, parcel of some one county, but wholly situate within, and surrounded by, some other county, which is productive of inconvenience and delay in the service and execution of the process of the said Courts, for remedy thereof be it enacted, that every such district and place shall and may, for the purpose of the service and execution of every writ and process, whether mesne or judicial, issued out of either of the said Courts, be deemed and taken to be part as well of the county wherein such district or place is so situate as aforesaid, as of the county whereof the same is parcel; and every such writ and process may be directed accordingly, and executed in either of such counties." PATTESON, J.-There is no weight in that objection. If it was allowed to prevail it would work a total extinction, for this purpose, of the county of the borough. The section in question only applies to the detached parts of one county which are situated within another. V. Williams, in support of the rule, distinguished the present from the case of Tyler v. Green. There the objection was merely a mistake in the indorsement on the writ of the residence of the plaintiff's attorney. Here, however, the service was altogether a nullity. It might be requisite to come promptly in the former case, but no such necessity could arise in the present. Entering an 1839. DAVIS v. SKERLOCK. |