nonsuit, which will authorize a general judgment to be entered CHAP. XXIV. against plaintiff(n); and if one of two defendants suffer judgment by default, the other may have judgment as in case of a nonsuit, for the plaintiff may be nonsuited at the trial (o). Where there are several issues in law and in fact, and the defendant has judgment on the issues in law, if the plaintiff do not proceed on the issues in fact, the defendant shall have judgment as in case of a nonsuit; for the plaintiff in such a case might have been nonsuited, had he proceeded to trial (p) ; but pending the demurrer, the defendant cannot obtain judgment as in case of a nonsuit for not proceeding to trial on the issues in fact (q). taken down In all cases within the statute, if the plaintiff once comply Where the with it, by taking down the issue for trial, although he be Cause has been nonsuited, and the nonsuit be afterwards set aside (r), or al- for Trial. though he have a verdict, and a new trial be afterwards granted (s), or although the parties agree to a reference, which by the default of the plaintiff turns out abortive (t), the defendant can never afterwards have judgment as in case of a nonsuit for any subsequent laches upon the part of the plaintiff in not bringing the cause to trial; but if he wish to dispose of the action, he must take it down for trial by proviso(u). So, in a country cause, if the cause be made a remanet(x), or in a town cause, if it be made a remanet at the request of the defendant (y), the defendant shall not afterwards have judgment as in case of a nonsuit; and this whether the plaintiff is passive, and takes no step, or gives a fresh notice of trial, which he abandons (~). But otherwise, in a town cause, where the cause is made a remanet from one sittings to another, by consent (a); for there is a great difference between causes entered for trial in London or Middlesex, and at the assizes in other counties; in the former, the record is not re-entered, nor is any fresh notice of trial given, and the cause comes on as if the sittings had been continued without interruption. So, if a town cause be made a remanet from the sittings after one term to the sittings after another term, and the plaintiff then make default, the defendant may have judgment as in case of a nonsuit (b). And giving notice that a cause will be taken as an undefended cause at the sittings in London, and appearing for the purpose of trying the cause as undefended, will not prevent the defendant from having such a judgment (c). And where the cause is not made a remanet, but the plaintiff, instead of allowing it to be tried, withdraws the record, the defendant may have judgment as in case of a nonsuit (d). (n) Jones v. Gibson, 5 B. & C. 768; 8 D. & R. 562, S. C.. and see Murphy v. Donlan, 5 B. & C. 178; 7 D. & R. 619, S. C: ante, Vol. I. 314. (0) Murphy v. Donlan, 5 B. & C. 178; 7 D. & R. 619, S. C.: Stuart v. Rogers, 7 .Dowl. 185. (p) Parton v. Popham, 10 East, 366. (9) Butcher v. Kierman, 1 Marsh, 364. (r) King v. Pipett, 1 T. R. 492: Ashey v. Flarman, 2 Dowl. 697: Doe Giles v. Wynne, 1 Chit. Rep. 310: see Henkyn v. Gers, 2 Camp. 408: 12 East, 248. (s) Porzelius v. Maddocks, 1 H. Bl. 101: Hawley v. Shirley, 5 Dowl. 393: Brough v. Scarby, 2 Har. & W. 139. (1) Hansby v, Evans, 4 M. & W. 565; 7 Dowl. 198, S. C. (u) Supra, n. (8): and Corone v. Garment, 1 Scott, 275: see, however, Jones v. Pritchard, 2 Tyr. 383. (x) Brown v. Rudd, 1 Dowl. 371: Mew- y) MS., E. 1820: post, 1072, n. (ƒ). (c) Edrupp v. Davies, 1 Dowl. 552. BOOK IV. PART I. Where the Where Costs for not proceeding to Trial have Where the defendant took out a summons for putting off a trial at the assizes, so late before the commission-day that the plaintiff thought he might be inconvenienced in getting ready for trial if the order was refused, and therefore countermanded it, the court held that the defendant could not, on that account, move for judgment as in case of a nonsuit (e). If notice of trial be countermanded at the request of the defendant, or if he otherwise prevent the plaintiff from going to trial, he cannot obtain judgment as in case of a nonsuit, for not proceeding to trial according to notice (ƒ). And the defendant cannot rely, for the purpose of judgment as in case of a nonsuit, on a notice of trial which he has refused to accept (g). When the cause is delayed by the general course of business, the defendant cannot have this judgment; and where, in a special jury cause, upon being called on for trial, there was not a full special jury, and neither party prayed a tales, it was considered that the defendant could neither have a judgment as in case of a nonsuit, nor take down the record by proviso (h). And where a special jury cause had been set down for trial, and stood in the paper so long as three years, the defendant was refused a judgment as in case of a nonsuit, he not having made any application to have a day appointed for the trial (i). If the cause be abated by the death of one of the plaintiffs or otherwise, the defendant cannot afterwards have a judgment as in case of a nonsuit (k). Where the plaintiff has served a rule to discontinue, and the costs are taxed, but not paid, the defendant is not entitled to make the motion (7). The R. G. H., 2 W. 4, s. 69, orders that no motion for judgment as in case of a nonsuit shall be allowed after a motion for costs for not proceeding to trial for the same default; but been moved if, after a motion for costs for not proceeding to trial, the plaintiff suffers another term or assizes (m) to elapse without giving notice of trial, this is a new default, and the defendant may move, notwithstanding the rule (n). for. Not favoured. When obtained in Town Causes. а It was observed by Parke, B., in a recent case, that he was not disposed to give any facility to these motions, which were very often more mischievous than otherwise (o). When obtained in Town Causes.] The defendant is not entitled to judgment as in case of a nonsuit, by the above sta tute, until the plaintiff has failed to bring on the cause to trial within the time allowed him for that purpose by the practice of the court. The plaintiff is in no case obliged to give notice of trial until the term after that in which issue is joined (Vol. I. 207) (p); and, consequently, in town causes no motion can be made for judgment as in case of a nonsuit until two terms (of which when issue is joined in term time that in which issue is joined is counted as one) (9) have elapsed after (e) Rendell v. Bailey, 2 Dowl. 113. (f) Jenkyns v. Charity, 2 Dowl. 197: ante, 1071, n. (y): and see Partridge v. Slater, 5 Dowl. 68: Watkins v. Giles, 4 Dowl. 14. (g) Clarke v. Goldsmid, 5 Bing. N. C. 120. (h) Phillips v. Dance, 9 B. & C. 769. (1) Cooper v. Holloway, 1 Hodges, 76. (m) Hyde v. Gardiner, 1 Dowl. 380: Tidd, N. P. 465: but see Moseley v. Clarke, 2 Dowl. 66. (n) Dyke v. Edwards, 2 Dowl. 53. (p) Hall v. Buchanan, 2 T. R. 734: and see R. H., 15 & 16, C. 2, r. 2: R. H., 20 & 21, C. 2. As to when issue may be said to be joined for this purpose, see ante, 1070, n. (a). (q) Pierson v. Chesham, 6 Dowl 507. issue joined against all the defendants (r); e.g. if issue be CHAP. XXIV. joined in Michaelmas term, the motion may be made in Easter term, but not before(s). And if issue be joined in Hilary term, the motion may be made in Trinity term(t). And where issue is joined in vacation in a town cause, the defendant cannot move for judgment as in case of a nonsuit until the third term after issue joined: thus, if issue is joined in Trinity vacation, the motion cannot be made until the ensuing Easter term (u). But if the plaintiff have, in fact, given a sufficient notice of trial previously, and not proceeded to trial in pursuance of such notice (x), then, if the notice were given for a trial in the vacation, the defendant may move for the judgment in the following term (y); or if the notice were given for a trial in term, he may move in the term after, but not before(); and this though the trial was to have been before the sheriff (a). When a town cause has been made a remanet from the sittings after Easter term to the sittings after Trinity term, and the plaintiff has then made default, the defendant may move for judgment as in case of a nonsuit in the Michaelmas term following(b). Where a default in not proceeding to trial has been made by the plaintiff, the defendant will not be deprived of his right to move for judgment as in case of a nonsuit by the plaintiff's giving a fresh notice of trial before the motion is made (c). But if a plaintiff gives notice of trial for a sitting earlier than is necessary by the practice of the court, and he afterwards give another notice of trial for a later sitting, but which is still within due time, the defendant is not entitled to move for judgment as in case of a nonsuit, although the plaintiff had not proceeded to trial under his first notice, nor countermanded it (d). And the defendant cannot rely in support of his motion on an insufficient notice of trial which he has refused to accept (e). And an agreement to take no notice of trial is not equivalent to notice so as to entitle the defendant to judgment for not proceeding to trial(). In a recent case in the Exchequer, a plaintiff having withdrawn the record in consequence of the absence of a witness, on a subsequent day gave a fresh notice of trial; prior to the day of trial under this second notice the defendant moved for judgment as in case of a nonsuit, having given one day's notice of motion only; the plaintiff tried the case as undefended, and obtained a verdict: it was held, that the verdict was an answer to the motion, but the court, on discharging the rule, set aside the verdict on payment of the costs thereof and the (r) See Crowther v. Duke, 7 Dowl. 409. (s) Pierson v. Chesham, 6 Dowl. 507. (t) Thomas v. Jones, 7 Dowl. 712. (u) Gough v. White, 2 M. & W. 363: Heale v. Curtis, 2 M. & W. 76; 5 Dowl. 294, S. C.: Wyatt v. Howell, 5 Dowl. 585. (x) Wingrove v. Hodson, 2 Dowl 379: Munt v. Tremamondo, 4 T. R. 557: Gates v. Terry, 1 Dowl. 370, S. C.: Hay v. Howell, 2 New Rep. 327: Walter v. Buckle, 2 Chit. Rep. 244: Holah v. Fleet, 1 Chit. Rep. 672. (y) Shepherd v. Taylor, MS., H. T. 1834, C. P.: Howell v. Powlett, 1 Moo. & Scott, 355; 8 Bing. 272; 1 Dowl. 263, S. C. (2) Smith v. Templemore, 5 Dowl. 408: (a) Maddeley v. Batty, 3 Dowl. 205. (c) Bainbridge v. Purvis, 1 Dowl. 444: (d) Ranger v. Bligh, 5 Dowl. 235. (f) Downes v. Cross, 2 C. & J. 466. BOOK IV. In Country In Causes before the Sheriff. costs of the rule, the plaintiff giving a peremptory undertaking (g). In Country Causes.] In country causes, if the issue be joined in an issuable term(h), and no notice of trial given for the next assizes, the defendant cannot move for judgment as in case of a nonsuit until after the plaintiff has failed to bring down the cause for trial at the second assizes. If it be joined in a non-issuable term, though no notice of trial was given for the next assizes, the motion may be made in the term next after those assizes (i). If it be joined in the vacation of a nonissuable term, and no notice of trial be given for the next assizes, it seems not to be settled at what time the judgment may be moved for. In Williams v. Edwards(k), the Court of Exchequer held that it might be moved for in the term after the next assizes. In Robinson v. Taylor (1), Littledale, J., pronounced a similar decision. And in a late case (m), Coleridge, J., held that it might be made in the term previous to the second assizes. But in Harrison v. Williams (n), Williams, J., held that it could not be made in the term after the next assizes. And, considering that, in town causes where issue is joined in vacation, the motion cannot be made earlier than if it were joined in the following term (0), Harrison v. Williams seems to be the more correct decision. In country causes, in an issuable term, the rule should be moved for early in the term, or the court will perhaps enlarge it till next term, and not permit it to be discussed at chambers(p). In Causes before the Sheriff.] In causes to be tried before the sheriff, the time at which the plaintiff would be compelled to proceed by the court, will, it seems, be regulated by the times at which the sheriff sits (q). The rules, as to when this motion for judgment should be made, are the same in principle as those above mentioned. Where issue was 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, it was 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 (r). Where issue was joined in a country cause before the sheriff in June, and no notice of trial was given, it was held, that the motion for judgment as in case of a nonsuit in Michaelmas term was too early, though two court-days had passed (§). (g) Jones v. Hows, 5 Dowl. 600; 2 M. & W. 379, S. C.: see Eager v. Cuthill, 3 M. & W. 60. (h) Williams v. Davis, 5 Bing. N. C. 227; 7 Dowl. 246, S. C.: Miller v. Hassall, MS., T. T. 1828: Simonds v. Folkenham, 1 Dowl. 292; 1 C. & J. 513; 1 Tyr. 501, S. C. Redward v. Way, 13 Price, 453: Crowley v. Dean, 1 C. & J. 18: Spiers v. Parker, Id. n.: Prentice v. Blott, 2 Bing. 360; 9 Moore, 687, S. C. (i) Heath v. Borall, 7 Dowl. 19: Robinson v. Taylor, 5 Dowl. 518: Evans v. Barnard, 3 M. & W. 276: Williams v. Edwards, 3 Dowl. 183; 1 C., M. & R. 583, S. C. Smith v. Rigby, 3 Dowl. 705: see Apperley v. Morse, 6 Dowl. 505: Williams v. Davis, 5 Bing. N. C. 227: 7 Dowl. 946, S. C. The decision in Smith v. Miller, 3 M. & W. 60, is founded on some mistake of the officer, per Parke, B., in Evans V. Barnard, supra. (k) 1 C., M. & R. 583; 3 Dowl, 183, &C (1) 5 Dowl. 518. (m) Lister v. Ventom, 7 Dowl. 691. (n) 6 Dowl. 772. (0) See Gough v. White, 2 M. & W. 363: Heale v. Curtis, 2 M. & W. 76. (p) Tidd, 502, 765. (q) Banks v. Wright, 3 Dowl 14. (r) Stacey v. Jeffreys, 5 Dowl 524: and see For v. M'Culloch, Id. 526. (s) Butterworth v. Crabtree, 3 Dowl 184: Harle v. Wilson, Id. 658. But, in a town cause, where issue was joined in Easter term, Chap. xxiv. and notice of trial was given for the sittings after that term, and an order for a writ of trial obtained the same day, but no notice of trial before the sheriff was given, a rule for judgment as in case of a nonsuit was granted on application in Trinity term (t). Where notice of trial is given for a day in term, and default made, the motion cannot be made in the same term (u). Where a rule nisi for judgment as in case of a nonsuit was discharged on a peremptory undertaking to try at the next ssizes, and afterwards an order to try at the sheriff's court, and to relieve the plaintiff from the undertaking, was obtained, and the plaintiff neglected to try at the next sheriff's court, the Court of Exchequer held, that the effect of the order was merely to substitute the sheriff's court for the assizes, and that the defendant was entitled to a rule absolute in the first instance (r). As to what steps the plaintiff is bound to take on a peremptory undertaking to try at the sheriff's court, see pust, 1079. Rule, Affida vit, &c. The Motion, Rule, &c.] In order to obtain judgment as in The Motion, case of a nonsuit, you must make an affidavit of the state of the cause, shewing that issue has been joined (x), and the plaintiff's default (y). An affidavit, merely stating that a rule to reply was duly given, that the plaintiff accordingly replied, and that the cause was 66 thereby" at issue, is not sufficient (z). An affidavit, not stating that issue had been joined, but stating that notice of trial had been given, has been held to be sufficient (a). If the motion be made in the next term after issue is joined, the affidavit must state that notice of trial was given, and that the plaintiff had not proceeded to trial in pursuance of his notice. If it be intended to apply for costs of the day, in case of the rule being discharged upon a peremptory undertaking, the affidavit should also shew that the notice of trial was not countermanded in due time, and the costs incurred (b). Give a motion-paper with this affidavit to counsel, to move for a rule nisi. Draw up your rule with one of the masters (c); serve a copy of it on the plaintiff's attorney or agent, and make an affidavit of the service. And afterwards, on the day after that appointed by the rule, give a motion-paper to counsel, to move to make the rule absolute upon this affidavit of service. It is, in general, advisable, however, in a country cause, not to move to make the rule absolute until three or four days after the day appointed to shew cause (d). The statute 14 G. 2, c. 17, s. 1, requires that notice be given of the motion: in the Queen's Bench the rule nisi was, of itself, formerly considered a notice (e), but it was not so in the Com & J. 217, S. C.: and see Gilmore v. Mel- (a) Corbyn v. Heyworth, 5 Scott, 335; (b) See Ray v. Sharp, 4 Dowl, 354. |