BOOK IV. Not granted mon Pleas or Exchequer (f); and now by rule of all the courts of H. T., 2 W. 4, r. 68, "a rule nisi for judgment as in case of a nonsuit may be obtained on motion, without previous notice; but, in that case, it shall not operate as a stay of proceedings;" and, in most cases, therefore, it is advisable to give it. In the Exchequer, the notice, to operate as a stay of proceedings, must be given two days previously to the motion (g). A rule to take out of court money paid in, under the 7 & 8 G. 4, c. 71, cannot be incorporated with a rule for judgment as in case of a nonsuit (h). It will be observed, that the statute admitting of this at Chambers. motion directs it to be made "in open court" (i); and it seems that a judge at chambers has no power to entertain it (j). Term's No sary. The general rule, so often noticed in the course of this tice unneces- Work, which requires a term's notice of proceeding, where no proceedings have been had in the cause within four terms, does not extend to motions for judgment as in case of a nonsuit (); and it is no objection to the motion that issue was joined several years previously (1). Entry of Issue Formerly, the defendant was not entitled to judgment as unnecessary. in case of a nonsuit, until after the issue was entered of record; but now, by rule of H. T., 2 W. 4, r. 1, s. 70, “no entry of the issue shall be deemed necessary to entitle a defendant to move for judgment as in case of a nonsuit." The Rule. When discharged unconditionally. The court, however, instead of making the rule absolute, may either discharge the rule unconditionally, or, “upon just cause and reasonable terms," allow a further time for the trial of the issue (m). If the defendant be not entitled to the rule, it will, of course, be discharged unconditionally, and, in general, with costs. Thus, it will be discharged unconditionally where issue has not been joined, (ante, 1070, &c.), or where the application is made too soon, (ante, 1072, Sc.), or where the case has been already taken down to trial by the plaintiff, (ante, 1071, &c.), or where the plaintiff has been restrained by injunction (n), or where the cause has been delayed by the general course of business, (ante, 1072, &c.), or where the defendant who applies has prevented the plaintiff from going down to trial, (ante, 1072, &c.), or has given a cognovit (o). And where it appeared that the bill on which the action was brought had been paid meanwhile by a third party, Bayley, B., discharged the rule (p). But the court have refused to discharge the rule unconditionally, on the ground that the tenant of defendant (who defended as landlord) in ejectment had delivered possession to the lessor of the plaintiff, the landlord not being privy to the transaction (). And the (f) Gooch v. Pearson, 1 H. Bl. 527; Tidd, 9th ed. 491, 765: Coulstwith v. Mar tin, 2 C. & J. 123; Dax, Prac. 70, 76. (g) Hannah v. Wyman, 3 Dowl. 673: (h) De Bedolliere v. Ryan, 7 Dowl. 615, But see Doe More v. Savage, (5 insolvency of the plaintiff after action brought is no answer to CHAP. XXIV. the motion (r). Nor is it a sufficient answer that plaintiff's attorney had acted without authority in bringing the action (s), but in one such case the court enlarged the rule for judgment, and granted a rule nisi for payment of costs by the attorney (t). As to the "just cause and reasonable terms" on which the rule When diswill be discharged, where the defendant would otherwise be charged upon just Cause and entitled to judgment as in case of a nonsuit, the court usually reasonable disharge the rule upon the plaintiff's undertaking peremptorily to Terms. try the cause at the next sittings or assizes, or, if it appear that he cannot (from the peculiar circumstances of the case) bring on the trial at that time, at some subsequent sittings or assizes (u); but, where the justice of the case requires it, the court will add to this such other terms as they may think reasonable (v). Besides the undertaking here mentioned, however, the plaintiff must shew the court "just cause" for his not having proceeded to trial, and this must be by affidavit, and the excuse must be such as to satisfy the court that the plaintiff's not having proceeded to trial arose, not from any wish upon his part to delay the trial of the issue unnecessarily, or for the purpose of vexation (w), or from any other improper motive (z), but from necessity, or from some other just cause (x). Unless some excuse be given for the default, the defendant must have judgment, and he is not bound to accept a peremptory undertaking (y). The absence of a material witness, or, perhaps, want of documentary evidence, is sufficient cause (*); 80 is withdrawing the record, in order to obtain a special jury (a); and where the plaintiff, in a qui tam action, withdrew the record, because his principal witness refused to give evidence, for fear of subjecting himself to a penalty for the same transaction, the court allowed it to be a sufficient excuse; although it appeared that the time limited for bringing any action against the witness would not expire for three terms, and that the plaintiff could not proceed to trial until after the expiration of that time (b). So, where plaintiff's attorney was prevented from proceeding to trial by a domestic affliction(e). So, the insolvency of the defendant, not discovered until after action brought, is deemed a sufficient excuse; and the court, usually, in such a case, give the defendant his option of a stet processus, (if the plaintiff be willing to give it), or to have his rule discharged with costs (d). And this was (r) Frodsham v. Rust, 4 Dowl. 90. Barber v. Wilkins, 5 Dowl. 305. Munday v. Newman, 5 Dowl. 695. (See Hacher v. Hardy, 1 Chit. Rep. n.: Raynes v. Spicer, 7 T. R. 178: Gardner v. Moses, 1 Taunt. 118. () Thus where the plaintiff was insolvent, and the action was carried on for the benefit of his creditors, the court compelled him to give security for costs. (Nicholson v. Warne, 1 Harr. & W. 211). See Taylor v. Mountague, 2 M. & W. 315, where the assignees refused to go on with the action. See Allingill v. Pearson, 1 B. & P. 13, where the court made the rule absolute because the demandant had behaved rexatiously and unfairly in the course of the suit. (See Walter v. Buckle, 2 Chit. Rep. 44: Nicholls v. Collingwood, 2 Dowl. 60: but see Stone v. Farey, 1 East, 554. (3) Nicholls v. Collingwood, 2 Dowl. 60. (z) See Jones v. Stephenson, Barnes, 316: Jordan v. Martin, 8 Taunt. 104: Bunyan v. Yerbury, 1 D. & R. 448: Greenhill v. Mitchell, 6 Taunt. 150: see Allingill v. Pearson, 1 B. & P. 103, per C. J. The affidavit in support of the application need not, in general, name the witness. (Montfort v. Bond, 2 Dowl. 403). (a) Webber v. Roe, 3 Dowl. 589. (b) Raynes v. Spicer, 7 T. R. 178: sed ride Bunyan v. Yerbury, 1 D. & R. 448. There seems to be no difference in this respect between penal and other actions. (e) Weak v. Calloway, 7 Price, 531. (d) Smith v. Badcock, 5 Dowl. 91. See the form of entry of stet processus, Chit. Forms, 618. BOOK IV. PART I. Rule not opened for Falsehood in done, in one case, though it did not appear that the plaintif was unaware of the insolvency when he brought the action The court have even allowed it to be a sufficient excuse, tha the attorney was not enabled to prepare briefs for counsel, o account of the plaintiff's absence (f); but it is not a suf ficient excuse that the attorney withdrew the record becaus the plaintiff was poor, and had promised to supply him with money, which he failed to do, in consequence of a permanen insolvency (g): yet where the plaintiff was only temporarily out of funds, and expected to be in funds within a definit period, the excuse was held sufficient to discharge the rul on a peremptory undertaking (h). Where the plaintiff be came bankrupt after issue joined, and the assignees refused proceed with the suit, the court refused to discharge the rul on a peremptory undertaking, unless security for costs were als given (?). And the same where the plaintiff was insolvent, and the action was carried on for the benefit of his creditors() It has been held to be a good excuse, even after an under taking, that another action is pending, and in the new trisk paper, for argument, which will decide the point in dis pute (7), and, in such a case, the affidavit must state the name of the cause, and shew that the point in dispute in both actions is the same (m). The court are, in general, more strict in this respect, where notice of trial has been given, than in other cases. It is usual for the plaintiff's counsel to shew his affidavit to the counsel for the defendant; and if the latter be satisfied with the excuse stated in the affidavit, he may consent to the rule being discharged, upon the peremptory undertaking above mentioned; the briefs may be indorsed accordingly, and handed to one of the masters (n). If the rule nisi is discharged on an affidavit of an excuse which is false in fact, the court will not afterwards open the Affidavit, &c. matter upon disproof of the contents of such affidavit; although, had they seen reason to doubt the truth of it at the time of shewing cause, they would have suspended their judg ment until the matter was examined into (o). Rule, how Judgment signed, &c. The rule for judgment as in case of a nonsuit is discharged drawn up and either unconditionally or upon the peremptory undertaking above mentioned, or made absolute (p). If made absolute, let the defendant draw up the rule with one of the masters(9), Then bespeak the roll, in order that the master may mark the costs. Judgment being signed, you may sue out execution(r). Costs of the Part of the The court, in discharging the rule for judgment as in case of a nonsuit, on a peremptory undertaking, may order the plaintiff to pay the costs of not proceeding to trial, provided they be sworn to in the affidavit (s), but the payment of such costs cannot be made a condition of discharging the (e) Lemon v. Hopson, 6 Dowl. 795. g) Cleasby v. Poole, 3 Dowl. 162; 1 C., (h) Radford v. Smith, 4 M. & W. 100; 7 (i) Taylor v. Montague, 2 M. & W. 315. 110: and see Wynn v. Bellman, 6 Taunt. 122. (m) See Wynn v. Bellman, 6 Taunt. 122 (n) See form of rule for discharging t on a peremptory undertaking, Chit. Forms, 618. (0) Davies v. Cottle, 3 T. R. 405. (r) See the form of judgment, Chit. Forms, 619. (s) Ray v. Sharp, 4 Dowl, 354. ale(t). The rule of H., 2 W. 4, s. 69, does not give the CHAP. XXIV. Sourt any express power to grant the defendant the costs of he day, when the rule is made absolute; and in one such ase in the Court of Queen's Bench, Taunton, J., said, that those costs must be made the subject of a separate motion (u). Default after Peremptory Undertaking.] If the rule be dis- Default after charged upon a peremptory undertaking, the plaintiff must Undertaking. proceed to trial accordingly, and of which trial he must give a fresh notice (v). And where the plaintiff gives an undertaking to try at the next practicable sheriff's court, he is bound to take proper steps to try the cause before the defendant obtains judgment as in case of a nonsuit, though for that purpose it be necessary to obtain a special appointment of a court by the sheriff (x). If the plaintiff neglect to proceed to trial in pursuance of such undertaking, let the defendant's attorney make an affidavit of the fact (y), and give this, with a motion paper to counsel, to moce for judgment as in case of a nonsuit, for not proceeding to trial in pursuance of a peremptory undertaking; and the court will thereupon grant a rule absolute (z). In the Common Pleas (a) and Exchequer (b), the rule is also absolute in the first instance. When you have obtained the rule, sign judgment, as above directed, and sue out execution. of peremptory If, however, the plaintiff have been prevented by circum- Enlargement, stances from proceeding to trial in pursuance of his under- Discharge, &c, taking, he must, if possible, before the defendant has moved Undertaking. for judgment, as above mentioned, make an application to the court to discharge or to enlarge the peremptory undertaking given in the cause, and for liberty to try at a future sitting or assizes, upon an affidavit of the facts; upon which, if sufficient, the court will grant a rule nisi accordingly. If the defendant's rule for judgment be actually drawn up, the plaintiff may and should move at the same time that the defendant's rule be discharged (c). The application should be made as early as possible, for, if the defendant's rule be made absolute, it seems that it will not be discharged under circumstances which would have entitled the plaintiff to an enlargement of the undertaking, had he applied in time (d). Payment of debt and costs by the defendant, after the giving of the peremptory undertaking, is a good ground for moving to discharge it, and the court, in such a case, cannot compel the plaintiff to enter a stet processus (e). And, where plaintiff was under a peremptory undertaking to try at a certain assizes, . in R. H., 2 W. 4, s. 69: Johnson v. Smith, 1 Dowl. 421: see Piercy v. Owen, 1 Dowl 362: Lenniker v. Barr, Id. 563 2 C. & J. 473, S. C.: Dockett v. Read, 1 Tyr. 386. (u) See ante, 1078, n. (t). (r) Sash v. Cranbrook, 1 Dowl. 148; Bainbridge v. Purvis, Id. 444. Where the rule was discharged on a peremptory undertaking to try at the next assizes, and afterwards an order for trial at the sheriff's court was obtained, and the plaintiff neg. lected to try at the next sheriff's court: it was held, that the defendant was entitled to a rule absolute for judgment as in case of a nonsuit. (Williams v. Edwards, 3 Dowl, 660). 2) Sell v. Adams, 7 Dowl. 672: see Williams v. Edwards, 3 Dowl. 660. (y) See the forms, Chit. Forms, 619. (3) In Vokins v. Snell, 2 Dowl. 411, Lit- (a) R. H. 1838: 4 Bing. N. C. 365. (c) Charrington v. Meatheringham, 4 (d) See per Coleridge, J., Ward v. Turner, 4 Dowl. 22: and see Haines v. Taylor, 2 Dowl. 644. (e) Shrimpton v. Carter, 3 Dowl. 648. PART I. BOOK IV. and after that assizes, and before the next term, both parties agreed to a reference, and the arbitrator made no award, it was held, that the agreement of reference was a waiver of the peremptory undertaking, and a rule for judgment as in case of a nonsuit was discharged on a fresh undertaking(ƒ). And the absence of all but one of a special jury, in a cause which ought apparently to be tried by a special jury, has been deemed a good excuse for not proceeding to trial in pursuance of a peremptory undertaking (g). So, the absence of a material witness is a good excuse (h), and in such case, if it be the first default, the affidavit in support of the motion to enlarge the rule need not state the name of the witness (i). So, the arrest of the plaintiff, who conducted his cause in person, by which he was prevented from attending to try, and the cause called on and struck out of the paper (k). So, the absconding of the plaintiff's attorney, by which the trial was prevented (7). So, that in consequence of several other causes having been referred, the cause was called on unexpectedly, at a time when the parties were unprepared (m). So, that the plaintiff deferred proceeding, in order to await the decision of a similar question in another cause; (and in such a case the question raised, and the action in which it arises, should be stated in the affidavit (n). Also, where a plaintiff, under a peremptory undertaking to try, set down his cause for trial at a certain sittings, at which there was no prospect of its being tried, his not having carried in the record to the marshal's office was deemed not sufficient to entitle the defendant to judgment as in a case of a nonsuit (o). And it seems that, in general, if the plaintiff has done his best to perform his undertaking, but fails, in consequence of unavoidable accident, or from some delay, arising out of the general course of business, and the application is made in proper time (p), the undertaking will be enlarged (7); but, where the cause of the plaintiff's not proceeding to trial was, that his principal witness was afraid that his evidence might be injurious to him in a matter then before the House of Lords, the court refused to enlarge the undertaking (r). And where the plaintiff neglected to go to trial because it was supposed that his declaration required amendment, and a proposal to refer was going on, the Court of Exchequer discharged a rule for setting aside a rule for judgment as in case of a nonsuit, and enlarging the undertaking (8). Costs of Enlargement. The application to enlarge a peremptory undertaking, being an application to the discretion and favour of the court, will be granted only on payment of costs by the plaintiff (t); and, after the first default, the payment of costs will be made a condition precedent to enlarging the undertaking (u). (f) Spurr v. Rayner, 7 Dowl. 467. (h) Phillips v. Dance, 9 B. & C. 769. (p) See per Coleridge, J., Ward v. Tur ner, 4 Dowl. 22. (9) Saxon v. Swabey, 4 Dowl. 106, and the cases above cited: see De Rutzen V. John, 5 Dowl. 400, where the undertaking was enlarged five times. (r) Muston v. Tabard, 2 H. & W. 13 (8) Haines v. Taylor, 2 Dowl. 644. (t) Percival v. Bird, 4 Dowl. 748 (u) Dennehaye v. Richardson, 4 Dow! 564: see De Rutzen v. John, 5 Dowl. 400. |