BOOK IV. PART I. nstances of R. H., 2 W. 4, r. 33, as to the Time of making the gularity may be waived. party be dissatisfied with the decision of the judge, he may apply to the court on the first day of the next term, though the judge refuses to give time for that purpose, and steps necessarily taken in the interim will not amount to a waiver of the irregularity (x). In such cases, where the application to the court is prima facie too late, but the defendant relies upon the fact of a previous similar application having been made to a judge at chambers within the proper time, the rule should be drawn up on reading the summons and order of the judge, or upon an affidavit of the fact, otherwise it will be discharged with costs (y). As instances of the rule as to when the application should the Effect of be made, and what will be a waiver of the irregularity.-An irregularity in the writ of capias must, before the 1 & 2 V. c. 110, have been taken advantage of within the eight days limited Application, for putting in bail (≈), or before an undertaking to put in and how Irre- bail (a), or before putting in bail, or paying money into court in lieu of it (b), and before obtaining time to put in bail (c), and before taking the declaration out of the office (d). And it would seem that a similar irregularity in the affidavit to hold to bail under the 1 & 2 V. c. 110, must be taken advantage of before taking any of the above steps, except indeed in the last instance, as to taking the declaration out of the office, for the proceedings in the action and proceedings on the arrest are now quite irrespective of each other. And the same as to the capias, where it is merely irregular, and not actually void. (See ante, 521). Also, if the plaintiff, at the defendant's request, accept without opposition bail named by the defendant, the latter cannot afterwards move to discharge the bail for a defect in the affidavit (e). An irregularity in a writ of summons, or in the copy served, or in the service, must be taken advantage of, according to some cases, it would seem, in four days after the service (ƒ); and, at all events, before the expiration of eight days after the service, and before appearance (g), or an undertaking to appear (h). But an appearance entered by the plaintiff for the defendant does not operate as a waiver; for the rule only applies to the party's own act (i). By the defendant's attorney receiving notice of declaration, and saying "It is all right, I will call and settle the debt and costs," 4 Dowl. 283; 1 H. & W. 521, S. C.: EN- (a) Woodcock v. Kilby, 1 M. & W. 41. (a) Holliday v.Lawes, 3 Bing. N. C. 541. (b) Green v. Glassbrook, 1 Bing. N. C. 516; 1 Scott, 402, S. C. (c) More v. Stockwell, 6 B. & C. 76; 9 D. & R. 124, S. C. (d) Whale v. Fuller, 1 H. Bl. 222: Caswall v. Martin, 2 Str. 1072. (e) Mammatt v. Matthews, 4 Moo. & Sc. 356; 10 Bing. 506; 2 Dowl. 747, S. C. (See Chubb v. Nicholson, 1 H. & W. 666: Graves v. Walter, 1 Scott, 510: Hinton v. Stevens, 4 Dowl. 283; 1 H. & W. 521, S. C. (g) See per Littledale, J., in Newnham v. Hanny, 5 Dowl. 263: Edwards v. Collins, 5 Dowl. 227: Tyler v. Green, 3 Dowl 439: Davis v. Sherlock, 7 Dowl, 530, in which case the service was in a wrong county: For v. Nuney, 1 B. & P. 250: R. v. Hare, 1 Stra. 155: Steele v. Morgan, 8 D. & R. 450. (h) See Anon., 1 Chit. 129: Hompay v. Kenning, 2 Chit. 236; 2 Chit. 240. (i) Davis v. Sherlock, 7 Dowl. 530: Chalkley v. Carter, 4 Dowl. 480: see Ledwick v. Prangnall, 1 Moore, 299. the defendant waives any irregularity in the process(); 80 CHAP. XVII. he waives it by paying the debt and part of the costs (7), or perhaps by admitting the debt after service, and requesting time to pay it (m). In general, however, a defendant's asking for time does not of itself waive an irregularity in the plaintiff's last proceeding (n). An irregularity in an appearance by plaintiff for the defendant must be taken advantage of before judgment by default (o). An irregularity in the notice of bail is, in general, waived by obtaining time to inquire after them (p). An irregularity in the notice of, or in delivering the declaration, must be taken advantage of before the time for pleading has expired (9), and, at all events, before plea, or even before taking out a summons to stay proceedings on the bail-bond (r); and a variance between a notice of declaration and the writ must be taken advantage of within four days from the time of the service of the notice, whether in term or vacation(s); or perhaps, if the defendant were entitled to eight days' time to plead, then within eight days. It has been held, however, that it is not too late on the 25th to take advantage of an irregularity in declaring too soon, which has occurred on the seventh (t). It may be observed, that taking the declaration out of the office, or obtaining time to put in bail, does not waive any irregularity as to the declaration itself(u). But taking the declaration out of the office waives an irregularity in its having been filed conditionally (x). Where the declaration was irregularly delivered at the same time as insufficient particulars, and an order was obtained for better particulars, it was held, that the defendant's not returning the declaration was a waiver of the irregularity (y). There appears to be a distinction in this respect between notice of declaration filed, and delivery of declaration. If the declaration delivered, or the notice of declaration filed, be wrong, then the above rule applies; if the notice be right, and the declaration filed be wrong, then, if the declaration be not taken out of the office, the application may, it seems, be made even after judgment signed (). The notice for making the application to set aside an interlocutory judgment for irregularity, begins to run from the time that notice was received of judgment being signed, and the defendant cannot as of course delay the application until a rule to compute is served (a). A motion to set aside an interlocutory judgment for irregularity, after notice of inquiry on the 4th of November for the 12th, was held to be too late (k) Lloyd v. Hawkyard, 1 M. & R. 320. the 26th October to the 9th November. (t) Fish v. Palmer, 2 Dowl. 460: and (0) Pr. Reg. 32: Williams v. Strahan, 1 quære? It has been held, that, if the noN. R. 309. (p) Foster's bail, 2 Dowl. 586. (9) See Newnham v. Hanny, 5 Dowl. 263: Smith v. Clarke, 2 Dowl. 218: Paire v. Goodman, 2 Smith's Rep. 391: Minster v. Coles, 2 Chit. Rep. 237. (r) Davis v. Owen, 1 B. & P. 342. (8) Hinton v. Stevens, 4 Dowl. 283: see Golding v. Scarborough, 2 Har. & W. 94. Where the plaintiff's declaration is delivered on the day after that on which it bears date, contrary to the rule of H. T., 4 W. 4, r. 1, the irregularity is waived by the delaying to come to the court from tice of declaration be served before process (u) Chapman v. Eland, 2 New Rep. 83: (x) Gilbert v. Kirkland, 1 Dowl. 153: (2) See per Littledale, J., 5 Dowl. 263. BOOK IV. PART 1. No Waiver unless with Knowledge of on the 12th (b). An irregularity as to the delivering of a plea would be waived by the plaintiff's attorney accepting and keeping it, as if the plea had been pleaded by a new attorney without an order to change attornies (c). But the plaintiff's demanding a particular of set-off will not waive the right to sign judgment as for want of a plea, where the plea is a nullity (d). An irregularity in, or omitting to give, a rule to plead or demand of plea, is waived by the defendant's pleading; and this, although the plea be a nullity upon which the plaintiff signs judgment (e). So, it seems, obtaining time to plead would be a waiver of a rule to plead, and obtaining time to declare would be a waiver of a rule to declare (f). An irregularity in the plea roll (g) should be taken advantage of before the defendant has accepted the issue (h). By accepting the issue, and not moving to set it aside or amend it at plaintiff's cost within four days, the defendant's attorney admits it to have been properly made up(i). An irregularity in a notice of trial or inquiry, or in the time and place of executing it, would be waived in general by the defendant or his attorney attending at the trial or inquiry, and making a defence (j). As to the time for moving to set aside a judgment by default for irregularity, see ante, 703, 704. In general, an irregularity in signing the judgment would be waived by attending the taxation of costs (k). Where a defendant pleaded to a scire facias, pending a rule he had obtained to set it aside for irregularity, the court held that he waived the irregularity by his plea (1). But where pending a rule to set aside a sci. fa., which did not operate as a stay of proceedings, the defendant appeared to the sci. fa., in order to prevent judgment, it was held to be no waiver (m). So, pleading to an action on a bail-bond, after demand and refusal of oyer, in order to prevent judgment being signed, is no waiver of the right to oyer(n). And the rule is the same as to prisoners (o); a prisoner who is supersedeable for not being declared against in time, waives the irregularity by afterwards pleading (p). After a lapse of two terms the court will not discharge the defendant out of custody on the ground that his addition and place of abode are not indorsed upon the ca. sa. (q)· It is also to be observed, that in general there can be no waiver unless with a knowledge of the irregularity (r). So an irreguthe Irregular- larity is not waived by agreeing to terms, where the party is under a misapprehension occasioned by the mistake of a judge in point of law (s). It rests, however, upon the party com ity. (b) Scott v. Cogger, 3 Dowl. 212: and see Smith v. Clarke, 2 Id. 218: Firley v. Rallett, Id. 708: Cor v. Tullock, Id. 478: sed vide Hill v. Mills, Id. 696; semb. contra, (c) See Margerem v. Makilwaine, 2 N. R. 509. (d) Ford v. Bernard, 6Bing. 534; 4 Moo. & P. 302, S. C.: see Garratt v. Hooper, 1 Dowl. 28. (e) Semble, Perry v. Fisher, 6 East, (f) Towers v. Powell, 1 H. BL. 87. (h) Combe v. Pitt, 1 W. Bl. 525; 3 Burr. (i) Shepley v. Marsh, 2 Str. 1131: Thompson v. Tiller, Id. 1266: Mather v. (j) See ante, Vol. I. 211, 212: Vol. II. 717 (p) Pearson v. Rawlings, 1 East, 7756 T. R. 224, S. C: ante, 864. (q) Constable v. Fothergill, 2 Dowl. 01. (r) Cor v. Tullock, 2 Dowl. 47. (8) Whalley v. Barnett, 1 Dowl. 607; 3 Tyr. 239, S. C.: and see Woodcock v. Killey, 1 M. & W. 41; 4 DowL 730, S. C. plaining of the irregularity to shew that he had no knowledge CHAP. XVII. of it (t). And, indeed, it would seem to follow from one case, that, at least where the irregularity is apparent on the face of No Waiver the proceeding, the applicant is bound to come promptly after where the he knows of the proceeding, and not merely after he knows of a Nullity. the irregularity itself (u). What has here been said, however, as to the time of making the application to set aside proceedings for irregularity, must be understood only of proceedings which are merely irregular; for, if a proceeding be completely defective and void, or, in other words, a nullity, the defect is not waived by any delay or any subsequent proceeding of the opposite party (e). Thus a writ of summons bearing date on a Sunday is a nullity, and cannot be waived (x). So is a notice of declaration served on a Sunday (y). So is service of a writ on a Sunday (*). So is an interlocutory judgment signed without an appearance entered (a). And so an affidavit taken before a person not having competent authority to take it, is a nullity, and any defect therein cannot, it seems, be waived (b). Where the defendant was taken in execution on a judginent, which ought to have been revived by scire facias, but was not so, the court held that even the delay of twelve years and more did not waive or cure the defect (c). So, where the maker and indorser of a note were holden to bail in one affidavit, the defect was holden not to be waived by putting in bail (d). So, where defendant pleaded in abatement without a proper affidavit, and signed judgment of nonpros for not replying thereto, it was held the judgment was irregular and not waived by the plaintiff's paying the costs of the judgment (e). And a demand of particulars of set-off delivered after a plea which was a nullity, is no waiver of the plaintiff's right to sign judgment(ƒ). And it may be observed, as a general rule, that waiver is doing something after an irregularity committed, where the irregularity might have been corrected before such act done(g). Proceeding is Time. Excuse for not applying in Time.] If there be any peculiar Excuse for not circumstances to excuse the lateness of the application, they applying in must be clearly established by the party applying (h). And if the excuse be a previous application at chambers, the rule must be drawn up on reading the summons and order, or on affidavit of the fact (i). Delay occasioned by changing the (t) Anderdon v. Alexander, 2 Dowl. 267: Herbot v. Darley, 4 Dowl. 726: Esdaile v. Davis, 6 Dowl. 465. (u) Esdaile v. Davis, 6 Dowl. 465. (t) See Mortimer v. Piggott, 2 Dowl. 615: Taylor Phillips, 3 East, 156: Osborne v. Taylor, 1 Chit. Rep. 400: Anon., 2 Id. 237: Roberts v. Spurr, 3 Dowl. 551: see Moore v. Stockwell, 6 B. & C. 76; 9 D. & R. 124, S. C. (r) Hanson v. Shackleton, 4 Dowl. 48; 1 H. & W. 342, S. C. (y) Morgan v. Johnson, 1 H. Bl. 628. (t) Taylor v. Phillips, 3 East, 155. (a) Roberts v. Spurr, 3 Dowl. 551: but see Williams v. Strahan, 1 N. R. 309. (b) See Sharpe v. Johnson, 2 Bing. N. C. 246; 2 Scott, 405; 4 Dowl, 324, S. C. (c) Mortimer v. Piggott, 2 Dowl. 615; but this decision seems questionable. (See ante, 819, n. (l)). (d) Hussey v. Wilson, 5 T. R. 254: ante, Vol. I. 494. (e) Garratt v. Hooper, 1 Dowl. 28: ante, 655. (f) Ford v. Bernard, 6 Bing. 534. (h) See Anderdon v. Alexander, 2 Dowl. (i) Sugars v. Concanen, 5 M. & W. 30: 7 Dowl. 391, S. C., nom. Shugars v. Concannon. BOOK IV. Confessing attorney has been held insufficient (k). So has the illness of a witness, whose affidavit was necessary to support the application, as a commissioner might have been sent for(). Confessing Irregularity.] If the party who has committed Irregularity. the irregularity be satisfied that he has no sufficient cause to shew against the rule, he may save some expense by serving the opposite party with a notice, acknowledging the defect, desiring him not to proceed to make the rule absolute, and offering to pay the costs already incurred (m); or, if he perceive the defect before the other party has moved for a rule to set aside the proceeding, he may prevent all expense by a similar notice(n). And where, after service of the rule nisi to set aside a declaration irregularly delivered, the plaintiff's attorney offered to pay the costs, which the defendant refused, the court made the rule absolute, on the terms that the defendant should pay all the costs subsequent to the offer(0); and where the plaintiff signed an irregular judgment, and, on the defendant taking out a summons to set it aside, he informed the defendant that the judgment was withdrawn, it was held, that the defendant had no right to get an order drawn up for setting aside the judgment, and that, therefore, he was liable to pay the expense of it (p). An affidavit in support of a motion to set aside an appearance irregularly entered by a plaintiff after notice that process was abandoned need only deny the service of any subsequent writ (9). Costs, &c. Costs, &c.] In the case of a rule for setting aside the proceedings for irregularity, if it be made absolute, it is generally with costs, unless some strong grounds be shewn to the court for ordering it otherwise; so, if discharged, it is understood to be discharged with costs, unless the court give special directions to the contrary (r). But if the rule nisi for setting aside the proceedings be not moved with costs, and the rule be made absolute, no cause being shewn, it must be made absolute in the terms in which it was moved, viz. without costs (s). On the other hand, where the rule nisi is moved with costs, and it be discharged, it will, almost universally, be so with costs (†). The costs of an application to set aside a judgment for irregu larity, which was granted without costs, cannot be recovered by way of aggravation of damages, in an action of trespass for seizing goods under colour of such judgment (u). In the case (k) Golding v. Scarborough, 2 H. & W. 94. (n) See form of notice not to appear to (0) Briscow v. Beckett, 4 M. & R. 100: and see Halton v. Stocking, 2 C. & J. 60; 2 Tyr. 165; 1 Dowl. 296, S. C., where the attorney was made to pay the subsequent costs. (p) Hargrave v. Holden, 3 Dowl. 176: see Clarke v. Crockford, Id. 693: Robinson v. Stoddart, 5 Dowl. 266. (q) Wintle v. Hogg, 7 Dowl. 623: see Giles v. Hemming, 6 Dowl. 623. (r) R. M., 37 G. 3, Q. B., 7 T. R. 82. There seems to be no similar rule in C. P. or Exch. (Anon., 1 Chit. Rep. 390, n.: post, title" Motions and Rules". Where the rule is discharged for a formal objec tion to the affidavit, the court has a discretion as to the costs, and may discharge the rule without costs. (Harris v. Matthews, 4 Dowl. 608). (8) Per cur., 37 G. 3, K. B.: 1 Tidd. 524: Rex v. Sheriff of Middlesex, in Duncombe v. Crisp, 2 Dowl. 5. (t) Tilley v. Henley, 1 Chit. Rep. 13: and see Huggett v. Parkin, 1 Bing. 65: 7 Moore, 359, S. C.: post, title "Motions and Rules." (u) Loton v. Devereux, 10 Law Journ. 103. |