CASES

IN THE COURTS OF

QUEEN'S BENCH, COMMON PLEAS,

AND

Exchequer of Pleas.

DARCY v. BERRY.

(Exchequer of Pleas.)

THIS was an application that the rule to plead and all subsequent proceedings in this case be set aside. It appeared that a writ was issued at the plaintiff's suit against the defendant in an action of trespass, which after the defendant's appearance was compromised; the plaintiff then, without having issued a fresh writ, filed a declaration against the defendant in assumpsit for a cause of action which accrued subsequently to the defendant's appearance in the former case, specially entitling it as of a day subsequent to the day of the defendant's appearance, and of the accruing of the second cause of action.

Willington, in support of the motion.

The declaration is irregular; the proceedings are in contravention of the 52nd General Rule, which prescribes that the writ shall be endorsed with the sums demanded of the defendant for the debt and for the costs; here the subject of the action is a promissory

T. T. 1847.

June 12.

A plaintiff cannot, in this Court, prefix a special memorandum to his

declaration so

as to include

therein a cause

of action accruing after

the appearance of the defendant.

DARCY V. BERRY.

T. T. 1847. note which fell due on the 7th of May; on the 8th the declaration Exch. of Pleas. was filed with a special memorandum. The defendant could have had no opportunity of paying the debt in the manner contemplated by the 52nd General Rule, for no writ åt all has been issued in this case, and therefore if these proceedings are upheld it will render the 52nd Rule a nullity; secondly, the proceedings are irregular, inasmuch as the declaration should have reference to the day of the defendant's appearance: Cluff v. Quinn (a); Copeland v. Langan (b): if the cause of action had accrued before the defendant appeared, the case would be different.

J. C. Lowry, contra.

The objection taken amounts to this, that no writ issued in the second case; then the question is, whether the former action having been settled puts the plaintiff out of Court, and deprives him of the right to declare upon another cause of action, in analogy to the course of proceeding in the Queen's Bench? This Court will, I submit, hold that the defendant having been once brought into Court it is enough, and that it is not necessary to issue a fresh writ.—[PenneFATHER, B. I should say, considering the whole purport of the Rules by which the party is entitled to have notice of the cause of action in order that he may be enabled to settle it, to pay the amount, that the practice as relied on by the defendant should prevail.]-During last Term it was held in the Queen's Bench that the plaintiff could not only declare for another cause of action during the same Term but also during the following Vacation, and that a stranger may declare upon the appearance during the same Term.-[PENNEFATHER, B. Was the 52nd General Rule brought under the consideration of the Court on that occasion ?]— I cannot say, but it was taken to be the settled practice: Ferg. Prac. p. 219. [Pennefather, B. The defendant is in Court all the same Term for all causes of action arising before the appearance, but he is in Court for no cause of action accruing after the appearance.]

(a) Long. & T. 625.

(b) Ir. Term Rep. 509.

John Pennefather, amicus Curia, referred the Court to an unreported case, decided in this Court, in which it had been held that there could not be a special memorandum to a declaration in this Court.

PIGOT, C. B.

It was a very wrong thing to take the step without apprising the party of your intention to do so; we are very anxious to sustain this application on many grounds, but we have a direct authority that there cannot be a special memorandum to the declaration in this Court; therefore we must set this declaration aside.

T. T. 1847.
Exch. of Pleas.

DARCY

v.

BERRY.

v. BERRY.

ad

In this case Tuthill moved that service of the writ of capias respondendum upon the wife of the defendant be deemed good

service of the defendant.

The affidavit of the process-server, upon which the motion rested, stated several attempts by the process-server to effect service of the writ upon the defendant at his residence, but that the defendant's wife refused to admit him; that on one of those occasions "the said James Berry was at home;" that he served the writ upon the defendant's wife; and that the defendant was on his keeping to avoid

the service of law process.-[PIGOT, C. B. The process-server does not say that he ever saw the defendant at the times when he called.]-But he states positively that on one of the occasions the said James Berry was at home.

PIGOT, C. B.

Yes, but he does not state how he knows it; it may possibly be

M. T. 1847.

Nov. 2.

The Court re

fused to allow

substitution of

service of the writ of capias ad respondendum upon a

defendant's

wife at his house, upon an

affidavit of her

refusal to admit the pro

cess-server,

and that the

defendant was

at home at the

time, the affidavit omitting to state the deponent's means of knowing that the defendant was in the house at the time he called.

M. T. 1847. a mere verbal omission; but he does not let us know what the Exch.of Pleas. source of his information was.

v. BERRY.

No rule on the motion, with leave to apply again if the omission in the affidavit should be rectified.

Nov. 4.

HAYES v. O'MALLEY.

The defendant J. D. FITZGERALD moved that the Taxing-officer be ordered to having been

called on by review his taxation, by allowing the sum of two guineas, claimed as

notice under

the 54th Ge- the expenses of a witness produced at the Assizes of Drogheda to

neral Rule to

admit certain prove the handwriting of Sir Samuel O'Malley. Under the 54th handwriting,

or that he General Rule notice was served on the opposite side, calling on

would be

charged with them to admit the handwriting, or that otherwise the plaintiff would the expense of

producing N. charge the defendant with the costs of "producing Patrick Nolan, P. to prove it; "of, &c. (specifying the place), or such other witness as may be

a different per

son being pro- "produced." The plaintiff attended before LEFROY, B., but the

duced for the

purpose, the defendant did not, and accordingly the learned Baron certified that Court refused

to allow his ex- he made no rule in consequence of the defendant's non-attendance. penses to be

taxed against Patrick Nolan was not produced, but another witness was, for the the defendant,

although the same purpose, and it was stated that the reason why Patrick Nolan

reason of the

witness's pro- was not produced was that the plaintiff was able to procure the duction was,

that the plain- attendance of the other witness at much less expense. The object of

tiff was able to

procure his at- the Rule is twofold-to give the party an opportunity of admitting

tendance at

much less ex. the handwriting, and thereby saving expense; and secondly, to give

of the person

specified in the notice.

pense than that him, by furnishing the name and address of the parties, an opportunity of knowing what would be the expense if he refused to admit the handwriting.-[PIGOT, C. B. I should suppose the object of the Rule to have been to enable the party to decide whether he

would peril the costs in order to have the opportunity of cross- M. T. 1847. Exch. of Pleas. examining that witness.]-The plaintiff, I submit, has done enough

HAYES

บ.

in specifying the name of the witness whom he intended to produce, although he proved the handwriting by another (it being done bonâ O'MALLEY. fide). If the defendant's reason for refusing to admit the handwriting was a desire to cross-examine the witness specified, he ought to have attended before the learned Baron in Chamber, and have so stated.-[Pennefather, B. Why are these words in the Rule if they are not to be attended to?]

PIGOT, C. B.

Let there be no rule on this motion.

NOWLAN v. GIBSON.

of

THIS was an action of trespass, tried before PENNEFATHER, B., at the Summer Assizes of 1847 for the North Riding of the county Tipperary. The declaration contained the three following counts; first, quare clausum fregit, and carrying away the crops of the plaintiffs, and one Jane Nowlan deceased; secondly, quare clausum fregit, and carrying away the crops of the plaintiffs; thirdly, de bonis asportatis. Pleas-first, the general issue; secondly, soil and freehold of the defendant; thirdly, soil and freehold of Paul Pry, and justification as his servant; fourthly, fifthly and sixthly, leave and

Nov. 18.

In an action of trespass the defendant, under a plea of

the general issue, proved that the entry complained of

was made un

der a writ of

habere which

issued upon a judgment obtained by him against the casual ejector. Held, that this judgment hav

ing been set aside by a Judge's order, and the plaintiff restored to possession under a writ of restitution, the judgment in ejectment and habere were no bar to the action: and Semble, per PIGOT, C. B., that even if they were, they were not admissible in evidence under a plea of the general issue, but ought to have been specially pleaded by way of estoppel.