fendant after that period. By the first summons, the defendants offered to pay 687. and costs, with interest upon the judgment, and any expenses which should be found by the Master to have been necessarily incurred by the plaintiff in respect of his having levied the execution. Although the wording of this summons differs slightly from the language used in the letter of guarantee, and that contained in the order of the 5th December 1839, I cannot see that the Master has exercised so improper a discretion, with regard to the costs, as to induce the Court to send that matter back to him. 1840. FISHER v. PYNE. I think, however, that the case should go back to the Interest. Master upon the question of interest. BOSANQUET J. concurred. COLTMAN J. As this is not a case referred by an order of the Court, but is one referred to the Master as an arbitrator selected by the parties, I am of the same opinion. ERSKINE J. Concurred. - Rule- absolute, for referring it back to VOL. I. U 1840. Service of a notice by leaving it at the office of the attorney with a laundress, having the care of that and the other offices in the house, is not good service. A defendant served with a notice of trial by continuance, BROWN v. WILDBORE. THIS action was brought to recover 211. 5s., of which 117. 5s. was paid into court. On the 28th of April notice of trial, by continuance, was served on the defendant's attorney. On the 11th of May, Wilde S. G. obtained a rule nisi to set aside this notice with costs, upon an affidavit made by the defendant's attorney and his clerk, stating that no issue had been delivered, and no original notice of trial served. Bompas, Serjt. now shewed cause, upon an affidavit, made by the clerk of the plaintiff's attorney, stating that on the 13th of April he delivered the issue and notice of trial into the hands of a female at the office of where no issue the defendant's attorney, at &c., there being no clerk in the office to receive the same, the said female being, as the deponent believes, and as she stated, the laundress having the care of the different offices in the house where the office of the defendant's attorney is situate; that the said female told the deponent that she has been de- served, omits notice of trial by continuance, and gives no intimation to the plaintiff of the irregularity, for an unreason able time, and until it is too late to correct it in time to go to would give the issue and notice of trial to the defendant's attorney, or his clerk, in the morning. The service on the laundress was sufficient; but, if not, the defendant's attorney, upon receiving the notice of continuance, was bound to give notice to the plaintiff's attorney within a reasonable time, of the irregularity of which he complained, whereas here he has waited thirteen days, taking no steps until it was too late to give notice of trial for the sittings in Easter term. trial at the same sittings; - the irregularity is waived. Wilde S. G., in support of the rule. Service on a aundress is not sufficient, Lush's Practice, 438. [Bosanquet J. referred to Archbold, 7th edition, 210. (a)]. 1840. BROWN v. The defendant's attorney was not bound to give notice WILDBORE to the plaintiff's attorney of his irregularity, in serving notice of trial by continuance, without having delivered an issue, and without having served an original notice of trial. (b) TINDAL C. J. The issue was not well delivered, nor was the notice of trial well served; but upon receiving (a) Archbold refers to Kent v. Jones, 3 Dowl. P. C. 210., and Alanson v. Walker, ib. 258. In the former case, the affidavit of service of a rule nisi at the chambers of an attorney, by leaving it with a laundress who admitted herself to be the attorney's servant, was held to be insufficient, because it did not state that the deponent believed her to be so. In the latter case, the affidavit of service of a rule, by leaving it at the defendant's chambers with a female servant there, was held insufficient by Gurney B., who observed, "the servant may have been a mere laundress." In the former case, the service was clearly insufficient, as, without the statement of belief, the deponent would not, in any way, have authenticated the representation which the laundress had made as to her being the servant to the attorney. In the latter case, it was merely a casual expression, used by the learned judge by way of illustration; and even in that expression, and in the case to which it applied, there was nothing to connect the female servant, or the imaginary laundress, with the occupier of the chambers. And see Strutton v. Hawkes, 3 Dowl. P. C. 25.; Chaffers v. Glover, 5 D. P. C. 81., Salisbury v. Sweetheart, ib. 243.; Hitchcock v. Smith, ib. 248.; Thomas v. Lord Ranelagh, ib. 258.; Carew v. Winslow, ib. 543. (b) Formerly, the rule of practice in this court was stated to be, that " a motion to set aside proceedings for irregularity should be made as soon as the plaintiff, by taking a new step in the cause, shews that he means to proceed; Fletcher v. Wells, 1 Marsh. 550., 6 Taunt. 191. And see Dand v. Barnes, 6 Taunt. 5., 1 Marsh. 403.; Ledwick v. Prangnell, 1 B. Moore, 299. But now, by R. H. 2 W. 4. reg. 33., no application to set aside process or proceedings for irregularity shall be allowed, unless made within a reasonable time, nor if the party applying has taken a fresh step, after knowledge of the irregularity." And see Wright v. Warren, 3 Mo. & Sc. 163. 1840. BROWN the notice of continuance, the defendant's attorney ought to have returned it immediately. We think that the rule should be made absolute upon the defendant's underWILDBORE. taking to go to trial at the first sittings in next term; the costs of the motion to be costs in the cause. Rule absolute accordingly. บ. END OF EASTER TERM. DIRECTION OF THE JUDGES RESPECTING THE COSTS OF Resolution of the Court of Exchequer, 27th May 1840. MEMORANDUM. It is resolved by the judges, that, when a judge's order is made a rule of court, it shall be a part of the rule of court, that the costs of making the order a rule of court shall be paid by the party against whom the order is made, provided an affidavit be made and filed, that the order has been served on the party or his attorney (a), and disobeyed. Sent to the Common Pleas Rule Office on the 29th of May from the Exchequer Office, and submitted by Master Ray to the Lord Chief Justice, who directed the Masters of the Common Pleas to act in accordance therewith. (a) The words in italics were added by the Court of Exchequer on the 28th of May 1840. On the 6th of November 1840, the Masters met and decided that service on an agent was sufficient. JOHN ATTWOOD v. JOHN TAYLOR, JAMES HENRY ASSUMPSIT. The declaration, entitled of 21st of An estate is contracted to be sold at a sum to be paid by six instalments, with additions, in the form of interest, at 5 per cent. until the day of payment thereof. By a subsequent contract, it is agreed, that the last instalment, instead of being paid at the appointed day, shall remain on mortgage at 4 per cent. for 14 years, but that the stipulations of the first contract, as to the previous instalments, shall continue in force. The reduction from 5 to 4 per cent. is dependent upon the fulfilment of the terms of the first contract with respect to the prior instalments; and these being suffered to remain unpaid long after the appointed periods, and no mortgage having been executed, the vendor is entitled to recover 5 per cent. upon the last instalment, as well as upon the others. |