Fry v Whittle
| Jurisdiction | England & Wales |
| Judgment Date | 13 May 1851 |
| Date | 13 May 1851 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 603
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
[411] (before alderson, B , sitting alone ) fry v whittle May 13, 1851 -An affidavit foi a suggestion to deprive the plazntifi of costs, uudei the 9 & 10 Viet c 95, stated, "that the plaintiff now dwells, and at the time of the commencement of this action dwelt, at Birmingham, which rs within twenty miles from Bilston, the place where the defendant now dwells, and also within twenty miles from Wolverhampton, the place where the defendant dwelt and carried on his business at the time this action was commenced ' -Held, insufficient, as riot shewing that the plaintiff s residence was within twenty miles of the defendant's This was a rule calling on the plaintiff to shew cause why the judgment signed in this case should not be set aside, and the plea-roll brought in and filed, in order to enable the defendant to entei a suggestion to deprive the plaintiff of costs, under the County Courts Act, 9 & 10 Viet c 95 The rule was obtained on the affidavit of the defendant, which stated, " that the plaintiff now dwells, and, at the time of the commencement of this actron, dwelt at Birmingham, in the county of Warwick, which is within twenty miles from Bilston, the place whete this deponent now dwells, and also within twenty miles ftom Wolverhampton in the county of Stafford, the place where this deponent dwelt and earned on his business at the time this action was commenced " Joyce shewed cause The affidavit is insufficient By the 128th section of the County Courts Act, 9 & 10 Viet c 95, concurrent jurisdiction is guen to the superior Courts "where the plaintiff dwells moie than twenty miles from the defendant," but this affidavit fails to shew what was the distance between the lesidences of the plaintiff and defendant In order to entitle the defendant to entei a suggestion, it is not enough to follow the language of the statute, but it must be distinctly shewn that, at the time the action was commenced, the plaintiff dwelt within twenty miles from the defendant's place of abode Room v Cottani (5 Exch 820), Pete/sou v Daw* (6 C B 235), Johnson v Wmd (7 C B 868), Dud. v Burton (4 Exch 873), Knby v Hufaon (L L M & P 304) It is consistent with [412] every statement in the 664 BHKESL V. OWENS 6 EX 3 present affidavit, that the defendant did not iaside in that pait ot Bnminghani which was neatest to Wolveihampton, but in :i part of the town moie than twenty miles...
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