MORRIS v.

SCULLY.

T. T. 1847. declaration filed against, all the defendants; but the first intimation Exch. of Pleas. which the defendants' attorney had of any irregularity in the service of the process was the receipt of the plaintiff's notice of the motion, which was framed in the alternative, either that proceedings against all the defendants should be vacated, or that the names of the two defendants who it was alleged were not duly served with process should be struck out. The defendants' attorney, by a notice in reply, offered to amend the declaration by striking out the defendants' names, upon the terms required. This, however, the plaintiff's attorney declined to accede to, claiming a right to select which of the alternatives he would accept.-[PIGOT, C. B. And you did not then amend the declaration.]-It was thought better to await the result of the motion, the Court having, in Loughnane v. Irwin (a), expressed an opinion on the impropriety of altering a record pending a motion on the subject. We had an undoubted right to select either of the alternatives in the plaintiff's notice, and promptly accepted that which met the justice of the case. It is well settled that a capias may contain the names of several defendants: 1 Ferg. Prac. pp. 127, 128; and a declaration may be filed against one of them only: Crawford v. M'Donnell and others (b). The parties here also have not changed the parliamentary attorney : Taylor v. Lyon (c).

Codd.

By permitting this declaration to stand against the third defendant, he will be deprived of the privilege of pleading in abatement.

PIGOT, C. B.

This motion must be refused with costs; the plaintiff to be at liberty to amend the declaration in the terms of his notice; the plaintiff paying the defendant the costs up to that notice of the 28th of May; the defendant paying the costs incurred since then, and the costs of the motion.

(a) 4 Ir. Law Rep. 19.

(b) 5 Bing. 333; S. C. 2 M. & P. 586.

(c) 5 Bing. 333.

T. T. 1847.
Exch.of Pleas

DOOLAN v. EGAN.

R. C. WALKER moved that the Sheriff be ordered to amend his return to the writ of fieri facias in this cause, by specifying the goods which he had seized.

The Sheriff has returned that he has seized all the goods of the defendant in his bailiwick, without specifying what they are or their value; the plaintiff's attorney has served him with a consent that he should amend his return, to which he has not attended.

PIGOT, C. B.

Let him amend the return and pay the costs of this motion.

June 8.

That the Sheriff has seized

all the goods

of the defendant in his bailiwick, without specifying their nature or

value, is a bad

return to a

fieri facias.

MURRAY v. LOWRY AND GARRETT.

June 8.

In this case, which was an action of trespass for false imprison- The Court re

ment

T. O'Hagan moved that the rule for judgment upon the demurrer

in this case be set aside, and that the said demurrer be also set aside; and that the defendant be at liberty to mark judgment as in case of a nonsuit.

fused, with costs, an apaside a demurplication to set

nearly twelve

rer taken after

months had elapsed, and a rule for non pros. had been entered to a plea, on the

a declaration

The defendants having filed a joint plea of not guilty, the ground that to plaintiff has demurred specially, on the ground that the defendants in trespass against two, have merely averred by their plea, that "they are not guilty," they pleaded jointly that without adding the words "nor either of them." This proceeding they were "not guilty," is vexatious; the defendants were obliged to enter a rule for without ad

ding Dor either of them."

T. T. 1847. non pros., and the demurrer has been filed after a lapse of nearly Exch. of Pleas. twelve months.

MURRAY

V.

LOWRY.

Close, with whom was Fagan, contra.

The motion is wholly untenable. The defendants take away the ground under themselves; they have taken out a copy of this pleading to which they object; they have filed an informal plea, on which the plaintiff could not safely go to trial.

[Counsel being about to show the invalidity of the plea, were stopped by the Court.]

PIGOT, C. B.

If you argue the demurrer now, we will conclude you by it. The defendants seek here to get rid of a demurrer, by bringing forward a motion which is wholly untenable. The long affidavits which have been filed were perfectly unnecessary. On that ground alone I should be disposed to say the motion ought to be refused with costs. The defendants might have applied for judgment as in case of a nonsuit, before the demurrer was filed.

Motion refused, with costs.

SAMUELS v. ATKINSON.

June 10.

Where a party B. STEPHENS moved that the demurrer which had been filed in pleads and de

murs

at the this case to the second count in the declaration be expunged, the same time to

the same defendant having also pleaded to the same count.

count, the

demurrer is

overruled by

the plea, and will be struck out.

D. M'Dermott, contra.

It is an

The pleading to this count was a mere clerical error. action on a bill of exchange; the declaration containing several

special counts, averring want of notice, and giving a reason why there was no notice; by mistake a plea to this count was filed.

Stephens.

The demurrer is, that it does not appear by any thing therein, that the Mary Atkinson mentioned in the commencement of the declaration is the Mary H. Atkinson afterwards mentioned.

PENNEFATHER, B.

It does not at all go to the merits of the case. Let the demurrer be set aside, the pleading overrules it.

T. T. 1847.
Exch.of Pleas.

SAMUELS

v.

ATKINSON.

M'Dermott.

That is overruling an objection which has been held good in the cases in England.

PIGOT, C. B.

We are not overruling the demurrer; we are only holding that the pleading overrules it.

Demurrer set aside.

MOONEYS v. PURCELL.

June 11.

JAMES PLUNKET moved to set aside the parliamentary appearance Where the and subsequent proceedings in this cause, upon the ground that the

only affidavit of the service

of the writ was that of the pro

cess-server, which stated that he personally served the defendant with a writ of capias ad respondendum dated the 1st of February 1847, returnable the 17th of February 1847, with a notice at foot directing the defendant to appear at the return thereof, being the 17th day of April 1847; the Court set aside the parliamentary appear. ance and subsequent proceedings, upon an affidavit by the defendant that he was not served with any process in this cause by J. M. the process-server, or by any other person, and never knew of the institution of this suit until the Sheriff of the Queen's County entered his house and seized his goods and chattels at the suit of the plaintiff."

T. T. 1847. defendant was never served with process in this cause, and that the Exch. of Pleas. writ mentioned in the affidavit of the process-server was illegal and

MOONEYS

V. PURCELL.

void, being made returnable on a day out of Term, and on a day different from that specified in the notice at foot of the writ. The affidavit of the process-server recited that a writ had issued against the defendant at the plaintiffs' suit tested the 1st February 1847, and returnable the 17th of February 1847 (in point of fact such a writ had issued tested 1st of February 1847, returnable the 17th of April 1847), and proceeded to state that there was pursuant to the statute at foot of the said writ a notice to the defendant calling on him to appear "at the return thereof, being the 17th day of April 1847, in "order to your defence in this action-James Dillon Meldon, attorney "for the plaintiff, No. 14 Upper Ormond Quay, Dublin; as by the said "writ or process, and the said notice at the foot thereof and here"unto annexed may appear." The affidavit then stated that on the 17th day of April the deponent personally served the defendant, by delivering to and leaving with him in person in his dwelling-house a true copy of the said writ or process, and of the said notice, and at the same time showing to the said defendant "the original writ or process, and the notice at foot thereof."

66

The defendant's affidavit stated that he " was not served with any process in this case by James Moore or by any other person, and 66 never knew or heard of the institution of this suit, until the Sheriff "of the Queen's County entered deponent's house and seized his "goods and chattels under an execution at the suit of the plaintiffs."

Patrick Blake, contra.

The defendant, to entitle him to set the proceedings aside, ought to swear also that the writ never reached his hands; it is not enough to say that he never was served: and where there is an affidavit of service the Court will not act upon a contradictory affidavit.— [PENNEFATHER, B. But there is no contradictory affidavit, for the process-server's affidavit is an affidavit of the service of a void process.-There ought to be a distinct denial by the defendant of his having had notice of the writ: Lewis and others v. Henry (a);

(a) 6 Ir. Law Rep. 218.