Bail Court. Baron DE REUTZEN and Wife v. JOHN. V WILLIAMS shewed cause against a rule to enlarge a peremptory A peremptory undertaking having been several times enbe again enlarged for the same larged, can only undertaking. It was given in one of thirty-one actions brought to recover tolls of a market, and the peremptory undertaking had been previously enlarged four times in order to have the decision of the Court on a point of law in one of the actions, which would most probably settle all the others. The only question was, as to the terms on which the enlargement meat of costs. should be made. J. Evans, contrà. LITTLEDALE, J.-After four previous enlargements, the undertaking must be enlarged on the payment of the costs of this application by the plaintiff. (a) See Percival v. Bird, 4 Dowl. P. C. 748; and Dennehaye v. Richardson, 1 Har. & Rule accordingly (a). Wol. 653; 4 Dowl. P. C. 564. cause on pay HAWLEY V. SHERLEY. HOGGINS shewed cause against a rule for judgment as in case of nonsuit, and contended, that the cause having been once carried down for trial, when a verdict was obtained for the plaintiff, which had been set aside and a new trial granted, the defendant could not have this rule, which was for a default in not going to a second trial. A cause having been once taken after which a new trial was granted, down for trial, and a fresh notice of trial given, the defendant cannot have judgment as Petersdorff, contrà, contended, that notice of trial having been again given, in case of nonsuit. the defendant was entitled to the rule. LITTLEDALE, J.-That makes no difference; the cause has been once carried down for trial, and the statute is therefore satisfied. Rule discharged (b). (b) See Gilbert v. Kirkeland, 2 Dowl. P. C. and Doe d. Giles v. Wynne, 1 Chit. 310. 153; Porzelius v. Maddocks, 1 H. Black. 101; HOWELL V. JACOBS. ISSUE was joined in this cause in Trinity Term last, and notice of trial was given for the sittings in Middlesex after that term. The defendant afterwards ruled the plaintiff to enter the issue, and because he did not do so, signed judgment of non-pros. The plaintiff then obtained a summons to set 1. The plaintiff having given notice of trial, the defendant cannot sign judgment of non-pros for not entering the issue. 2. The defendant having irregularly signed judgment of non-pros, by which the plaintiff was prevented proceeding to trial according to his notice, the defendant cannot have judgment as in case of nonsuit for the default. Bail Court. HOWELL บ. JACOBS. aside the judgment for irregularity, and before that was determined the time for trial passed by. The judgment was set aside, and this term a rule nisi for judgment as in case of nonsuit was obtained. Archbold shewed cause, and contended, that as the plaintiff had been prevented trying the cause by the irregularity of the defendant in signing judgment of non-pros, he was not entitled to the rule. Streeton, contrà. LITTLEDALE, J.—The plaintiff having given notice of trial, the defendant could not sign judgment of non-pros; and if by his default the notice of trial was rendered of no effect, he cannot now have judgment as in case of nonsuit. Rule discharged. of debt by the in JAMES V. TREVANION. 1. In an affidavit THIS was an action on a promissory note by the indorsee against the maker. The affidavit of debt on which the defendant was arrested stated several indorsements of the note to the plaintiff, but did not state that he sued "as indorsee." Neither did it state the default of the indorsers. dorsee against the maker of a promissory note, it is not necessary to state that the defendant is indebted to the plaintiff as indorsee." 2. It is also un necessary to state the default of the indorsers. Steer moved for a rule to shew cause why the bail-bond should not be delivered up to be cancelled, on a common appearance being entered. He submitted that the form of affidavit, given in Tidd's Practice, was, that the defendant was indebted to the plaintiff "as indorsee," and that that form ought to have been followed. He also submitted that the default of the indorsers should be stated. LITTLEDALE, J.-What objection can there be? The title is traced to the plaintiff, and it is not necessary after that to call him indorsee; neither is it necessary to state the default of the indorsers. Rule refused. ment op one tenant, of a decla ration and notice DOE d. SMITH and others v. ROE. Service in eject-UMFREY moved for judgment against the casual ejector. There were two tenants in possession, and the declaration and notice served on one, was by mistake directed to the other tenant. The service on that other was correct. It was submitted, that being directed to the tenant in possession, it was sufficient, and that, at any rate, a rule nisi would be granted. addressed to another, is not good. LITTLEDALE, J.-That will not do. It is not sufficient even for a rule nisi. Rule refused. Bail Court. DOE d. BRICKDALE V. ROE. THIS was a rule for judgment against the casual ejector. The affidavit Rule nisi for the casual ejector refused, although it was quite clear had been keep ing out of the way before the term, as the attempt to for some months stated an attempt to serve the tenant in possession on the premises judgment against the day before the term, when he could not be found, and service was in consequence made on another person on the premises. It also stated an attempt to serve the tenant with another declaration in ejectment in March last, as also an attempt to serve him in two different counties with a writ of summons in June, issued by the lessor of the plaintiff for the rent of the premises. The lessor's attorney swore that he had been attempting to find the tenant ever since June, and had been unable to find him; and the sheriff's officer swore that he believed he had been purposely keeping out of the way ever since. Rogers submitted that he was at least entitled to a rule nisi, as the case was similar to that of Doe d. Luff v. Roe (a); and that the case was not within the principle of those cases where the Court refused to grant a rule on account of the first attempt to effect the service having been made just previous to the commencement of the term, as the affidavit shewed that it was quite useless to go earlier. LITTLEDALE, J.—It does not appear to me that I can grant even a rule nisi. I ought not to encourage persons to put off the attempt to effect a service to the last moment before the commencement of the term, with the hope that the case may meet with the indulgence of the Court. Parties ought to go a few days before the term to effect the service. Rule refused. In Hilary Term following, a rule nisi was granted by Putteson, J. on an affidavit stating the same facts, together with attempts to serve the defendant on the 27th of December, and on several subsequent days before the term. (a) 3 Dowl. P. C. 575. serve him was made only the day before the term. DOE d. HUBBARD V. ROE. Service of a de ment on the land THIS was a motion for judgment against the casual ejector. The premises sought to be recovered were six cottages, which had been demised by claration in ejectdeed to Miles. The ejectment was brought for breach of covenants in the lord alone, of prelease. Miles occupied one of the cottages, and let the others out in single rooms to weekly lodgers. Miles alone had been served in order to save ex- weekly lodgers, is pense, as there were so many lodgers. mises let by him in single rooms to not sufficient, unless he occupies part of the house Hoggins submitted, that the occupation by the lodgers was the occupation covered. of the landlord, and that he was entitled to a rule as to all the cottages. Bail Court. DOE d. HUBBARD บ. LITTLEDALE, J.-The occupation by a lodger is occupation by the landlord where the landlord occupies some part of the same house himself. Here they are different houses, and you can only have a rule as to the one in which Miles lives. Rule absolute accordingly. ROE. Rule nisi for judgment against the casual ejector refused, where the service was on the day before the DOE d. FINCH v. ROE. OMLINSON moved for judgment against the casual ejector.-There had been regular service on all the tenants in possession except one. The day before the term there had been service on his mother-in-law on the premises. On the first day of the term his wife acknowledged that she had received the declaration on the previous day, and on the second day of the term the tenant himself acknowledged he had received the declaration, but refused to second day of the say on what day. It was submitted, that on the authority of Doe v. Roe (a), at least a rule nisi would be granted. term on a relation of the tenant, and the tenant on the term acknowledg ed he had received the declaration, but refused to say on what day. LITTLEDALE, J.—I think enough has not been done. The attempt to effect the service should not be put off until the last moment before the term. Rule granted as to the other tenants only. (a) 2 Dowl. & Ryl. 12. the foot of the de to two persons who are joint of whom is served, DOE d. HEWSON v. ROE. BYLES moved for judgment against the casual ejector. The premises claration in eject. sought to be recovered had been demised by deed to two persons who ment is addressed were partners in business, and carried on their trade and had joint stock on the premises, but only one of them resided there. The notice at the tenants, one only foot of the declaration was directed to both the tenants, but one only had the rule for judg. been personally served; there was some doubt, therefore, as to the form ment against the of drawing up the rule. He submitted, that if the tenant who did not reside on the premises, was to be considered as a tenant in possession, he had been served by the service on his joint-tenant; but if he was not a tenant in possession, it was of course unnecessary to serve him at all, and that therefore the rule should be for judgment against the casual ejector generally, for the premises mentioned in the declaration, leaving the lessor of the plaintiff to execute the writ at his peril. casual ejector can only be for the premises in the possession of the one served. LITTLEDALE, J.-The rule must be for judgment as to the premises in the possession of the tenant served, but will take no notice of the other. Rule absolute accordingly (b). (b) See the next case. Bail Court. DOE d. WEEKS v. ROE. R. V. RICHARDS, the same day, moved for judgment against the casual ejector. The premises were in the possession of the churchwardens and overseers as parish officers, only four out of five of whom had been served. He submitted, that they might be considered as joint-tenants, and that he was entitled to have judgment generally. LITTLEDALE, J.-No, the rule must be as to the four served only. Rule absolute accordingly. Where four out of five parish offi in ejectment, the rule for judgment against the casual cers were served ejector can only be as to the premises in the possession of the four. DOE d. WATTS v. ROE. ROGERS applied for a rule to shew cause why the tenant should not give the usual undertaking, and enter into the recognisance required by the statute 1 G. 4, c. 87, s. 1, besides entering into the common consent rule. The only point in the case was that the original lease had been assigned to the present tenant in possession. LITTLEDALE, J. thought that circumstance was immaterial. Rule nisi granted, which was afterwards made BIDDULPH v. GRAY. WH. WATSON shewed cause, in the first instance, against a rule for discharging the defendant out of custody under the Small Debtors' Act, 48 G. 3, c. 123, and objected to the affidavit of the service of the notice of the application, given under the rule H. T. 2 W. 4, I. 90 (a), that it stated the notice had been served at the plaintiff's "town residence, at Mr. Tomlins, at &c., by delivery to a servant of Mr. Tomlins." This he submitted was not sufficient. Application granted in ejectment under the stat. 1 G. 4, c. 87, possession being s. 1, the tenant in the assignee of the original lessee. 1. Notice of an application under the Small Debtors' Act, left with a servant at a lodg 2. An objection not waived by appearing to shew cause against the Mansel, contrà, submitted, that by appearing to shew cause against the rule. rule, the objection to the service was waived. He also submitted, that the service was sufficient. LITTLEDALE, J. The objection is not waived by the appearance to shew cause against the rule. It does not appear from this affidavit but that the place where the notice was left, was merely the plaintiff's lodging for a few days; it is not sufficient. Rule refused. (a) 1 Dowl. P. C. 195; see also Kelly v. Dickenson, 1 Dowl. P. C. 546; and Gordon v. Twine, 4 Dowl. P. C. 560. |