The declara tion, defence, and other pro ceedings in an ejectment for non-payment of rent, per mitted to be amended by striking out the name of one of the lessors of the plaintiff upon the terms of giving security to the defendants for costs. PRACTICE-EJECTMENT FOR NON-PAYMENT OF RENT-LIBERTY Lessee RUSSELL . TUTHILL.* MOTION for liberty to amend the declaration in ejectment for non-payment of rent.-The lease sought to be evicted, was a lease of certain premises in the city of Limerick, made in 1810, for three lives with a covenant for perpetual renewal. Hughes Russell, one of the lessors of the plaintiff, was named as a trustee in the will of the original lessor, and the other co-lessors of the plaintiff were his devisees. Defence was taken by Tuthill, who was heir-at-law of Jeremiah Tuthill the lessee in the lease of 1810, and also by Francis Philip Russell, who was in the actual possession of the premises at the time of the serving of the ejectment, and had been so for before. many years The cause being at issue, the defendants were called on by notice for a consent that Hughes Russell, who took no estate under the will, might, notwithstanding that he appeared as a party on the record, be examined as a witness for the other lessors of the plaintiff, and security for costs was offered to the defendant. This proposition was refused by Francis P. Russell, and an application was now made to the Court for liberty to amend the declaration by striking out the name of Hughes Russell, he having no estate or interest in the premises, and his testimony being necessary to enable the co-lessors to recover. Security for costs was offered by the notice. The application was grounded on an affidavit stating the foregoing facts. The motion was made by Mr. Bennett, Q. C. (with whom was Mr. O'Leary), for the lessors of the plaintiff. Mr. Fitzgibbon appeared and opposed the motion on behalf of Francis P. Russell, one of the defendants. BURTON J. This is a very proper case for making the amendment sought by the notice. It can do the defendants no injury.-No doubt, their security for costs would be diminished by striking out any of the lessors of the plaintiff, but the notice offers sufficient security for costs. And in this Court such an application is almost of course, even in an ejectment for non-payment of rent. CRAMPTON J. concurred. COURT.-Let the lessors of the plaintiff have liberty to amend the declaration, defence, and other proceedings had in this cause, by striking out the name of Hughes Russell, wherever it may occur in same, upon the terms of the lessors of the plaintiff forthwith giving security to the defendants for costs in the cause. No costs of the motion to either party. • This case was decided in Trinity Term 1839, but was accidentally omitted in its proper place. 361 EXCHEQUER OF PLEAS. Monday, January 27th. PRACTICE-JUDGMENT AS IN CASE OF A NON-SUIT SUFFICIENCY OF CAUSE AGAINST. TUTHILL v. BRIDGEMAN. tice of this Court a per ne emptory un- as Mr. KELLER moved for liberty to enter up judgment as in case of a By the pracnon-suit, the cause having been at issue more than three Terms. On the day upon which notice of this motion was served, the plaintiff furnished a peremptory undertaking to go to trial at the next Limerick Assizes, but made no offer to pay the costs then incurred.-[PENNEFATHER, B. The plaintiff ought to have offered to pay the costs incurred up to the time of furnishing the undertaking to go to trial.]—A mere undertaking to go to trial is not of itself a sufficient answer to this application. In compliance with the words of the statute (a), the plaintiff should have shewn some "just cause" why he had not proceeded to trial according to the course of the Court. The undertaking to try the cause is only the "reasonable terms" which the Court will impose on a plaintiff, but the statute requires that he should also assign some "just cause" for his delay. Such is the view of the statute taken by the Court of Queen's Bench in this country, in the recent case of Gilman v. Connor (b), in conformity with the English decisions. In Nicholls v. Collingwood (c), it was held that the plaintiff must shew some excuse, and that the defendant is not obliged to accept merely a peremptory undertaking. The decision in Walter v. Buckle (d), is to the same effect. In 2 Archbold's Prac. by Chitty (e), it is laid down, that "in addition to the peremptory undertaking, the plain. "tiff should also shew to the Court just cause' for his not having "proceeded to trial.” PENNEFATHER, B.* The act of parliament is not imperative; therefore what amounts to "just cause" is a matter within the discretion of the Court,-and this (a) The 28 G. 3, c. 31, s. 2, Ir.; 14 G. 2, c. 17, Eng. () 1 Ir. Law Rep. 346. As to what is considered by that Court a sufficient cause against the application, see Anon. ante pp. 167-263; and—v. Worthington, ante p. 266. (e) p. 808; see also 2 Tidd, p. 266, 9th ed.; and Ellison v. Coath, 2 Price, 16. ment as in case of a non-suit. • Solus. 1840. TUTHILL v. BRIDGEMAN. Court has always considered a peremptory undertaking to go to trial at the next Sittings or Assizes as "just cause" against an application for judgment as in case of a non-suit. I am not disposed to follow the authorities which have been referred to, and see no reason to change what has hitherto been the settled practice of this Court. No rule on this motion, on the terms of plaintiff's undertaking to go to trial at the next Assizes, and to pay the costs of this motion within a week after the taxation of the same; and if the undertaking be not given, and the said costs paid within that time, let defendant be at liberty to enter up judgment as in case of a nonsuit.* * In Mallett v. Hilton, 2 H. Bl. Rep. 119, the Court of Common Pleas in England held, that in all cases where an application was made, for the first time, for judgment as in case of a nonsuit, it was sufficient, in answer to such an application, to undertake peremptorily to try, without alleging any reason for not having before tried the cause; and declared that, whatever might have been the former practice, in future, it should be understood, that the first motion for judgment as in case of a nonsuit, was only a mode of obtaining a peremptory undertaking to try. Vide 2 Tidd, 768, 9th ed.; Imp. C. P. 388, 4th ed. Where the de fendant in a city cause challenged the array of the panel, because six days before the first day of the Nisi Prius sittings, the 66 66 Thursday, February 15th. SITTINGS AFTER HILARY TERM. Coram WOULFE, CHIEF BARON. PRACTICE-DISTRINGAS JURATORES-JURORS— our WATERS v. HUGHES. THIS case having been called on for trial, counsel for the defendant tendered a challenge to the array. The challenge, which was engrossed on parchment and signed by counsel, was in the following form-" And now at this day, to wit, on the 1st day of February, in the year of Lord 1840, comes as well the said plaintiff as the said defendant, "by their respective attornies aforesaid, and the jurors of the jury em"pannelled also come; and thereupon, the defendant challengeth the array jurors empannelled were "of the said panel, because he says that six days before the said 1st day not,nor was any of them, nor any juror of the county of the city, &c., summoned to serve upon the jury for the trial of the issue in that cause, by virtue of any writ of venire facius, distringas, &c.; a demurrer taken to the challenge was overruled. 66 "of February, in the year last aforesaid, the said jurors so empannelled as aforesaid, were not, nor was any of them, nor any juror of the county "of the city aforesaid, summoned to serve upon the said jury for the “trial of the issue in this cause, by virtue of, or in pursuance of, any "writ of venire facias, distringas juratores, or other writ, or order in "that behalf made, or given, according to the form of the statutable "enactments in that case made and provided. And this the said defend"ant is ready to verify, whereupon he prays judgment, and that the "said panel may be quashed." The plaintiff's counsel objected to the challenge for the want of a stamp. It was contended that being a law pleading it ought to have been stamped as such. 66 The COURT having intimated that time would be given to procure the necessary stamp, the following demurrer was put in on the part of the plaintiff—" And the said plaintiff as to the challenge of the said defend“ant saith, that the said panel ought not to be quashed, because he saith "that the said challenge, and that the matters therein contained, in manner and form as the same are in the said challenge stated and set "forth, are not sufficient in law to authorise or warrant the quashing of "said panel, and that the said plaintiff is not bound by law to answer "the same; and this he, the said plaintiff, is ready to verify; wherefore, "by reason of the insufficiency of the said challenge in this behalf, the "said plaintiff prays judgment, and that a jury of the said panel may be "sworn, and soforth." Joinder in demurrer. Mr. John Brooke, Q. C., in support of the demurrer.-The case of Gillespie v. Cuming (a), on the authority of which, no doubt, this challenge has been taken, so far from sustaining it, is an authority the other way; for there the challenge averred that the jurors had not been summoned by virtue of any distringas in any cause for the Assizes; but here the ground of challenge is, that the jurors were not summoned for the trial of the issue in this particular case. But, independently of that case, it has been expressly decided by this Court that it is not a cause of challenge to the array that the jury have not been duly summoned; Edwards v. Harding (b). CHIEF BARON.-That was a decision under the old law; besides, I look upon it as overruled by the decision in Gillespie v. Cuming; but there certainly is the distinction you mention between the form of the challenge in the latter case and of the one in this. His Lordship here called on the defendant's counsel to support their challenge. 1840. WATERS บ. HUGHES. 1840. WATERS v. HUGHES. Mr. West, Q. C., and Mr. Rolleston for the defendant. The defendant is entitled to judgment on this demurrer upon two grounds-first, it is submitted, that according to the true construction of the 12th and 18th sections of the 3 & 4 W. 4, c. 91, the jurors ought to be summoned in every case.-[CHIEF BARON. I find upon inquiry that it is not the practice that a fresh summons should be served upon the jurors every time a fresh distringas is delivered to the sheriff; but that where the jurors have once been summoned on a particular distringas delivered to the sheriff in sufficient time, they are afterwards summoned anew in each case upon the delivery of every new distringas; and I see no reason why there should be such a toties quoties summoning of the jury. On the contrary, I think, for the reasons suggested by Baron PENNEFATHER in the case of Gillespie v. Cuming that such need not and ought not to be the practice.]-It is observable that Baron PENNEFATHER in that case abstained from expressing any opinion on the point. But conceding the law to be as stated, it follows that the jurors here have not been summoned in any one case in time; for had they been duly summoned in any one case they must, according to the argument on the other side, have been duly summoned in this. But the challenge avers the contrary—and the truth of that averment is admitted by the demurrer. If any distringas had been delivered in proper time, that ought to have been made the matter of counter-plea and not of demurrer. This challenge, although in a more restricted form, is substantially the same as that in Gillespie v. Cuming; and a similar challenge has been very recently held good by Chief Justice BUSHE in the case of The Dundalk Railway Company v. Gray (a). Indeed the restricted form of challenge seems more correct than the enlarged one. Mr. Fitzgibbon, in reply.-On the part of the plaintiff we altogether impugn the decision in Gillespie v. Cuming, and contend that an objection founded on the want of a summons to the jury does not form the subject of a challenge to the array. Although there is a similar act in England (6 G. 4, c. 50), there is no instance to be found in the English books of an objection to the panel, or a challenge to the array, on the ground that the distringas had not been delivered to the sheriff, or the jurors summoned in proper time. In none of the books of practice is such enumerated among the causes of a challenge to the array. In Archbold's Practice by Chitty (b), the causes of challenge are minutely stated, and all of them savour of some supposed or suspected partiality or default in the sheriff who arrays the panel (c). It is the duty of the * See these sections, ante, pp, 32. 33, note. (a) Since reported, Crawf. & Dix. C. C. 333. (b) p. 457, 6th ed. (e) See 3 BI. Com. 359. |