1833.

COOK

v.

ALLEN.

absence of any express decision to the contrary in this court, and urged the convenience of assimilating the practice. Nor is the motion too late, Budgen v. Burr, Smith v. Painter (a); as the irregularity was not known till the 15th December.

After consulting the master,

Lord LYNDHURST C. B.-There is no difference of opinion among the officers of the court. The master reports that the practice of this court is, that a plaintiff may enter a common appearance for a defendant within four terms. That practice will be adhered to, unless any inconvenience is shown to result from it. As to the lateness of the motion, had the defendant applied in the first instance to the officer, he would have apprised him of the irregularity, and it is at least extremely inconvenient that the objection should be taken at a stage of the case when additional expenses have been incurred by the other side.

The rest of the Court concurring,

Rule discharged with costs, being so moved.

(a) 2 T. R. 719.

1833.

HASKER against JARMAINE.

A Rule to show cause had been granted to set A rule for aside the service of a writ for irregularity in not bearing on the face of it the date of the day when it issued, pursuant to 2 W. 4. c. 39. s. 12. and Schedule discharged, on

No. I.

the service of
setting aside
a writ for irre-
gularity was

writ itself.

its being shown for cause that the irregularity Platt showed for cause that as the date appeared occurred in the by the indorsement it was sufficient. [Bayley B. We have held the reverse (a)]. If the blank left makes the writ irregular, the service is unimpeached, but the rule is to set aside the service.

Chilton in support of the rule. If the writ is irregular, the service of it cannot be regular. In Millar v. Bowden (b) the irregularity was, that the day of the month and year in which the writ was issued was not indorsed on it, according to Reg. Gen. Mich. 1 W. 4. The rule was to set aside the service, and no objection was made to it on that ground.

BAYLEY B.-Had the motion been to set aside the writ and service, or the writ or service, the court might have discharged the rule as to the service, and made it absolute as to the writ. In this case the defendant has been served with a true copy of the writ itself, without any irregularity in the manner of the service. Now though the objection is to the writ itself, the service of it is all against which this application is directed. Had the writ been regular, and borne date the day it was issued, but an incorrect copy had been

(a) By 2 W. 4. c. 39. s. 1. the day of the month and week of the service of the writ are to be indorsed on it.

(b) 2 Tyr. R. 112.

1833.

HASKER

V.

JARMAINE.

served omitting the date, the defendant would not have been duly served with a true copy.

The other barons concurring,

Rule discharged without costs.

If after a rule

for a new trial

has been made

absolute, the

party succeeding on that

rule suffers

more than four terms to elapse

DEACON against FULLER.

THE defendant obtained a verdict. A rule for a new trial was made absolute in Hilary term 1829. No step was taken afterwards, but on 10th December the defendant's attorney was changed by an order on

consent.

without taking Mansel now moved to discharge the rule for a new the case down trial. First, a term's notice of intention to proceed is not

to trial, a

term's notice

of motion is necessary to discharge the rule, as either

party may try
by proviso.
An order to

change an at-
torney is not a
proceeding in
a cause dis-
pensing with

a term's notice of proceeding.

necessary; Roe d. Hutchings v. Dunning (a). Theobald v. Crichmore (b), and Hockin v. Reeve (c) are analogous in principle, as is Tipton v. Meeke (d); but 2dly, the order to change the attorney was a sufficient step in the cause to dispense with the term's notice.

BAYLEY B. (sitting alone).-On the first point Tipton v. Meeke has decided that where the plaintiff obtained a rule for a new trial, but neglected to carry the cause down for trial for more than four terms, the court would not discharge the rule on motion, unless a term's notice of the motion had been previously given. And I think upon principle that as a legal end may be put to the cause in another mode, viz. by either party taking down the record for trial by proviso, we ought not to

(a) Barnes, 308.

(b) 2 B. & Ald. 594; 1 Chitt. R. 317. See 9 B. & Cr. 621.

ASSUMPSIT by the indorsee against the acceptor Where a

ble to estaplaintiff is blish two demands against a defendant, but abstains from proving

of certain bills, and on the common counts. Pleas, general issue, statute of limitations, and a set-off for the defendant's services as an attorney. The trial took place before Lord Lyndhurst C. B. at the Middlesex sittings after last term. The plaintiff proved a demand more than one of 201. 6s. 8d. against the defendant, and announced that he had acceptances to produce proving more to be due, but should not produce them unless the defend

ant established his set-off. Chilton for defendant then

in the first in

stance, on

which the defendant pro

ceeds to prove a set-off to a larger amount,

tion suffer the

other demand

objected that the plaintiff ought to prove his whole the judge may demand in the outset, and ought not to be permitted in his discreto give his evidence by parts, one part in the first plaintiff to instance, and the other in reply after hearing the de- prove his fendant's case. The case proceeded, and the defendant in reply, so as proved a set-off to the amount of 657. 17s. for services to overtop the as an attorney. The learned judge then suffered set up by the the plaintiff to give in evidence two bills which the plaintiff had accepted and paid for the defendant's accommodation. As the amount of those bills overtopped the set-off, the plaintiff had a verdict.

Chilton now moved for a new trial, on the ground taken at the trial, and cited Rees v. Smith (a) for the

(a) 2 Stark. N. P. C. 31.

cross-demand

defendant.

1833.

WILLIAMS

v.

DAVIES.

general rule there stated by Lord Ellenborough, that when, by pleading or by means of notice, the defence is known, the plaintiff's counsel is bound to open the whole case in chief, and cannot proceed in parts; and that when it is known what the question in issue is, it must be met at once. The bills produced by the plaintiff in order to overtop the defendant's set-off, had no relation to it. [Vaughan B. It might be that they were given and paid for the business done, which formed the subject of your set-off.] He also cited Browne v.uy (a).

Lord LYNDHURST C. B.-It was said for the plaintiff that it was not necessary to put the acceptances in evidence, unless the defendant relied on his set-off. It might therefore be most convenient to rest the plaintiff's case there, because the set-off might not be gone into. The consequence of making it imperative on plaintiffs to produce their whole claims, would be, that if they had long accounts containing many items and extending over several years, the whole must be gone through without occasion. One course or the other must be adopted, according to the nature of the case, and the presiding judge can form the best opinion at the time, whether the evidence should be admitted or rejected at the particular moment when it is offered. If he decides to admit it, and it is admitted, there can be no objection on that account.

BAYLEY B.-Is there an instance of a verdict having been set aside because a judge, in the exercise of his discretion, allowed additional evidence to be given by either party at a later period of the cause? Had he rejected such evidence on the ground that the party's

(a) Ryan & Moody, N. P. C. 254.