sidered to be a sufficient reason for their being absent from this court, on the day appointed for an argument here.(ƒ) After a special argument on a concilium, it is usual for the courts to call upon each of the counsel or serjeants concerned, to make a motion; which is called moving for their argument: but it seems that, in the King's Bench, it is not the practice to call upon the counsel to move for their argument as a matter of course, though it is said to be otherwise in the Common Pleas.(g) And where it was moved, in the latter court, for leave to justify bail, after two serjeants had moved for their arguments, the court would not receive this motion, till the paper was gone through.(h) On motions for judgment, without argument, on paper days in the King's Bench, one shilling is paid for each motion, by the counsel making it, to the box; which is called box money, or high bar money, and paid by the secondary on the plea side, into the hands of the clerk of the junior judge, in order to be by him paid over to the judges of the court in equal shares, to be disposed of by them for such charitable purposes, as they [ *509] in their *discretion shall think proper.(aa) On the last day of term, two shillings are paid in that court for the first motion, and one shilling for every motion afterwards. In the Common Pleas, there are no payments of this nature: but, on entering satisfaction on the roll, it is usual for the plaintiff to pay one shilling for every hundred pounds recovered to the secondary, who pays it over to the junior judge's clerk, by whom it is distributed among the prisoners in the Fleet Prison. A petition is usually exhibited, in order to obtain some favour or relief, proceeding from the court or a judge, &c., without calling upon the other party to show cause against it; as for prisoners to have day rules allowed them by the court in term time;(bb) or to be relieved against the extortion of gaolers, (c) &c., or discharged from imprisonment under the Lords' act; (d) or for paupers to be admitted to sue in formâ pauperis ;(e) or infants to sue by prochein amy, or defend by guardian, (f) &c. In the case of prisoners, the petition is exhibited to the court; in the other cases, to a judge at chambers; or it may be exhibited to the master of the rolls, for an original writ to be issued, after a writ of error on a judgment by default, (gg) or for amending an original writ;(hh) to the lords of the treasury, for the plaintiff to obtain money levied on a capias utlagatum ;(i) to the attorney-general, for the allowance of a writ of error, where the king is concerned ; (k) or to the house of lords, for the plaintiff in error to return a writ of certiorari out of the regular course, (l) or to have the cause appointed for a short day.(?) Analogous to the proceedings in court, by motion and rule, is the practice by summons and order at a judge's chambers, of which something has been already said in a preceding chapter.(m) This practice seems to have arisen, partly from the overflowing of the business of the courts in termtime, and partly from the necessity of certain proceedings being had in (f) 9 Price, 53; but see 1 Younge & J. 511, 536. (h) Pr. Reg. 265. (g) 1 Wils. 76. (aa) R. T. 32, 33 Geo. II. K. B. 2 Bur. 867. (c) Ante, 232. (f) Ante, 99, 100. Append. Chap. IV. § 11, 12. (bb) Ante, 374. Append. Chap. XV. § 57. (k) Post, Chap. XLIV. vacation, when the courts are not sitting: And although extremely burthensome to the judges, yet it manifestly tends to the advantage of the suitor, the case of the practitioner, and the general advancement of justice, by preventing the expense, trouble and delay, which would ensue, if an application to the courts were in all cases necessary. It was formerly a rule, that "no attorney or other person, should be summoned to attend any justice of the King's Bench, nor any matters be transacted before such justice at his chambers, or elsewhere out of court, during the sitting of the court at Westminster.(n) But this rule has been recently discharged in the King's Bench :(0) and it is now the prac tice in all the courts, (a) for one of the judges to attend daily at [*510 ] chambers, during term, from half past three until five o'clock: in consequence of which, the evening attendance of the judges at chambers, in term-time, is discontinued. Also, by a late act of parliament, (b) "the judges of the courts of King's Bench and Common Pleas, and barons of the Exchequer at Westminster, and the justices of Chester, are authorized, during their respective circuits for taking the assizes, to grant such and the like summonses, and make such and the like orders, in all actions and prosecutions depending in any of his majesty's courts of record at Westminster, in which the issue, if brought to trial, would be to be tried upon such their respective circuits, as if such justices of the courts of King's Bench, &c., were respectively judges of the court in which such actions or prosecutions are depending, although such respective justices of the courts of King's Bench, &c., may not be judges of the court in which such actions or prosecutions are depending; and such summonses and order shall be of the same force and effect, as if such justices of the courts of King's Bench, &c. were respectively judges of the courts in which such actions or prosecutions are depending: And, for the purposes of this act, the counties palatine of Lancaster, Durham and Chester, shall be taken to be counties on the circuits of the respective justices of the courts of King's Bench, (c) &c." judges of the courts of Great Sessions in Wales, are also authorized, by statute 5 Geo. IV. c. 106, § 11, 12, to make rules and orders, in all cases at law, when the said courts shall be sitting in any county within their jurisdiction; and also in all cases, both at law and in equity, when the said courts shall not be sitting in Wales, to hear motions and petitions, and make rules and orders thereon, in vacation, and out of the jurisdiction of the said courts. The The order of a judge is sometimes absolute in the first instance; as to hold to bail, (d) to charge a person in custody on a criminal account with a civil action, or to docket a roll after the lapse of a year, &c. And where a rule is drawn up in term time, as a matter of course, on a motion paper signed by counsel, as to bring money into court, to change the venue, to plead several matters, as for a special jury, or view, &c. a judge's order may be had in the first instance, in the King's Bench, for the clerk of the rules to draw it up in vacation, on producing a motion paper so signed. So, in the Common Pleas, a judge's order may be obtained in the first (n) R. M. 11 Geo. I. K. B.; and see R. T. 14 Car. II. reg. 2, K. B. R. H. 17 Geo. II. C. P. (0) R. M. 2 Geo. IV. K. B. 5 Barn. & Ald. 217. (a) 5 Barn. & Ald. 217. Notice, M. 3 Geo. IV. C. P. & Excheq. 7 Moore, 460. 11 Price, 422. (b) 1 Geo. IV. c. 55, 5; and see 1 Car. & P. 138, n. (d) Append. Chap. X. 2 87. (c) & 6. instance, for the secondaries to draw up a rule in vacation, to bring money into court, or for a special jury, on producing a motion paper signed by a sergeant; for in these cases, a sergeant's hand would be sufficient in term time: but in the other cases, of changing the venue, &c. where an application must be made to the court in term, a summons must first be served in vacation, for the secondaries to be at liberty to draw up the rule. An order, however, is in general preceded by a summons, for the at[*511] tendance *of the attorney or agent of the opposite party, before a judge at chambers, to show cause against it: And where a judge has upon hearing a party on summons, refused an order, an appeal can only be made to the court.(a) In some cases, a judge's order is drawn up, in default of appearance, on the first summons; as for a supersedeas to discharge the defendant out of custody in the King's Bench, for not declaring against him in due time: but in general, there must be three summonses, and an affidavit of attendance thereon, (b) before the judge will make an order for non-attendance.(cc) And in vacation, when the court is not sitting, some things are allowed to be done by a judge at chambers, which in term time must be moved in court; as to enter up judgment on a warrant of attorney, above one and under ten years old, or to refer it to the master, or prothonotary, to compute principal and interest on bills of exchange, or promissory notes, &c.:(dd) in the former case, the order is granted in the first instance; but in the latter, it is preceded by three summonses. A judge at chambers will not set aside an execution, or other act of the court; but where the justice of the case requires it, he will stay the proceedings thereon in vacation, to give the party an opportunity of applying to the court in the ensuing term. A judge's order for a stay of proceedings, must be drawn up and served forthwith; otherwise it will be considered as waived by the party, by whom it has been obtained. (e) The order obtained upon a summons is, however, subject to an appeal, and the validity of it may be impeached in two ways; either by moving the court to set it aside, (f) or, if made in vacation, by applying, in the next term, to set aside the proceedings that have been had under it.(g) But if the order be acquiesced under, it is as valid as any act of the court:(h) And, in the King's Bench, a judge's order for a prisoner's discharge under the Lord's act, made out of term, has been held to be final.(2) Indeed, if it become necessary to enforce a judge's order by attachment, or other act of the court, there must be a previous motion to make it a rule of court.(k) (g) 4 Bur. 2569. (cc) Ante, 369. (f) 1 Chit. Rep. 246. (h) 1 Taunt 47. (i) Doug. 68. Webster v. Wilkinson, H. 26 Geo. III. K. B. 3 Moore, 64. Jameson v. Raper, id. 65, (a). Ante, 382. (k) 4 Bur. 2569. Per Ld. Kenyon, in Curtis v. Taylor, E. 35 Geo. III. K. B. OF SETTING ASIDE, AND STAYING PROCEEDINGS. *512 *CHAPTER XX. Of SETTING ASIDE, and STAYING PROCEEDINGS. HAVING stated, in the preceding chapters, the various modes of commencing actions, and the proceedings therein to the declaration, on behalf of the plaintiff, with the time allowed for pleading in ordinary cases, and whatever is peculiar to the proceedings in actions by or against attorneys, and against prisoners in custody of the sheriff, &c. or of the marshal or warden; and having taken a view of the means of removing actions from inferior courts, and of motions and rules in general, and the practice by summons and order at a judge's chambers, I shall next proceed to show what is to be done by the defendant, when an action is brought against him; and in so doing shall consider first, in what case, and upon what grounds, he may move the courts to set aside or stay the proceedings: secondly, what steps are to be taken by him, when he has no merits; and thirdly, if he has, in what manner he should prepare for and make his defence to the action, which will lead on to the consideration of pleas and pleading, &c. Upon a review of which it will appear, that the defendant, according to the circumstances of his case, either applies to the equitable jurisdiction of the court by motion, or relies on his legal ground of defence, by pleading it. In the defence of an action, one of the first things to be attended to, on the part of the defendant, is the regularity of the proceedings; for if they are irregular, the courts, on motion, (a) will set them aside. An irregularity may be defined to be, the want of adherence to some prescribed rule or mode of proceeding; and it consists, either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time, or improper manner. Thus, the want of notice is an irregularity, whether it be to process, upon a declaration, or of trial or inquiry: so, if the notice be not given in due time, or a proper manner. In general, an irregularity is either in mesne process, or the proceedings thereon before judgment, or in the judgment or execution. If there be any irregularity in the process, or notice to appear thereto, or in the delivery, filing or notice of declaration, or notice of trial or inquiry, the defendant, we have seen,(6) may move the court, on a proper affidavit, (c) to set aside the proceedings, and, if in custody, for [*513 ] his discharge on filing common bail, or entering a common appearance; or, if he has given bail to the sheriff, that the bail bond may be delivered up to be cancelled. A judgment by default is irregular, when the defendant, in an action not bailable, has not been served with a copy of process, or there has been no declaration regularly delivered or filed, and notice thereof given to the defendant;(aa) or when it is signed before the defendant's appearance, or without entering a rule to (a) For notices of motion, to set aside proceedings for irregularity, see Append. Chap. XX. 1, 2, 3, 4. Ante, 488. Append. Chap. XX. ? 5. And for the rule nisi thereon, see id. & 6, and the notice to plaintiff, not to make it absolute, id. ¿ 7. (aa) 4 Taunt. 818. plead, or demanding a plea, when necessary; before the time for pleading is expired; or after a plea has been regularly delivered or filed.(bb) And when an execution is irregular, the defendant may move to set it aside; and that he be discharged out of custody, or that the money levied may be restored to him.(cc) The application to set aside proceedings for irregularity, should be made as early as possible, or as it is commonly said, in the first instance; (d) and when there has been any irregularity, if the party overlook it, and take subsequent steps in the cause, he cannot afterwards revert back to the irregularity, and object to it. (e) If there be any defect or irregularity therefore in mesne process, or the notice subscribed thereto, or in the service of process, the defendant should take advantage of it before he has appeared:(f) And if the irregularity be in the delivery, filing or notice of declaration, the application should be made, if possible, two days at least before the time appointed for the execution of the writ of inquiry.(g) Irregularity in the service of process, however, is waived by the defendant's attorney having written to the plaintiff's attorney, after the process was served, undertaking to appear, receive a declaration, and give security for costs;(h) or by the defendant's paying the debt and part of the costs, (i) or admitting the debt subsequently to the service of the writ, and requesting time for the payment of it.(k) So, where the service of a writ is irregular, but the defendant, on receiving notice of declaration, says, "it is all right; I will call and settle the debt and costs;" the irregularity is waived; 1 Man. & Ryl. 320. And, by taking the declaration out of the office, or obtaining time to put in bail to the action, the defendant, we have seen, (1) waives all objections to the regularity of the process; the intent of which is only to bring him into court. But this it seems is only a waiver of irregularities in the process, and not in the declaration.(m) Yet, where the plaintiff declared by the bye, before he had declared in chief, it was holden, that taking the declaration by [*514] the bye out of the office, was a *waiver of the irregularity.(a) So, where the declaration was delivered at the same time as a bill of particulars which was insufficient, and another order was afterwards obtained for better particulars, the court of Common Pleas held, that as the defendant's attorney had not returned the declaration, with the insufficient particulars, he had waived the irregularity:(b) And if the plaintiff take a plea out of the office, and keep it, he waives any objection to the plea, on the ground of its having been pleaded by a new attorney, without an order to change the former one. (c) In proceeding against prisoners, an irregula (bb) Id. 545. (cc) Ante, 489. Append. Chap. XX. § 3, 4. (d) 3 Durnf. & East, 7. 1 East, 335, 8 Dowl. & Ryl. 450. 9 Price. 637. (e) 1 East, 77; and see 3 Durnf. & East, 10. 5 Durnf. & East, 254, 464. 1 East, 330. 2 Smith R. 391. 2 Chit. Rep. 236, 7. 6 Barn. & Cres. 76. 9 Dowl. & Ryl. 124, S. C. 6 Barn. & Cres. 77, (b). 9 Dowl. & Ryl. 18, K. B. 1 H. Blac. 251. 1 Bos. & Pul. 250, 344. 1 Taunt. 59. 2 Taunt. 244. 4 Taunt. 545. 6 Taunt. 6. 1 Marsh. 403, S. C. 6 Taunt. 185. 1 Moore, 299, C. P. 9 Price, 637. 11 Price, 122, Excheq. (f) Ante, 160, 61. (g) 2 Smith R. 391. 2 Chit. Rep. 237. Cas. Pr. C. P. 69, 145. Pr. Reg. 127, 242, S. C. Barnes, 255, 6. 2 New Rep. C. P. 75; and see N. M. 2 Geo. II. C. P. 6 Price, 15. (h) 1 Chit. Rep. 129; and see 2 Chit. Rep. 236. 1 Man. & Ryl. 320, 21, (b). (i) 11 Price, 122. (k) 7 Moore, 461. 1 Bing. 132, S. C. (m) 2 New Rep. C. P. 83; and see 4 Durnf. & East, 349. (a) 3 East, 342. Ante, 424, 5, (l). (b) 2 Moore, 90; and see id. 655. 8 Taunt 592, S. C. (c) 2 New Rep. C. P. 509. (1) Ante, 160. |