Graham v Ingleby and Glover
| Jurisdiction | England & Wales |
| Judgment Date | 11 January 1848 |
| Date | 11 January 1848 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 277
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 5 D. & L. 737. Applied, Park Gate Iron Company v. Coates, 1870, L. R. 5 C. P. 637. Referred to, Deering v. Hyndman, 1886, L. R. 18; L. R. Ir. 340. See further, 2 Ex. 442.
[651] exchecjiteu. kepokts. hclaky teum, 11 Vurr.. graham v. inuleuy and glovek. Jan. 11, US48.-The 4 Anne, c. 10, s. 11, requiring pleas in abatement to be verified by affidavit, is an enactment for the sole benefit of plaintiffs, and may be waived by them.-Therefore, where a defendant delivered a plea in abatement, with a, defective affidavit of verification, and the plaintiff traversed the plea, and made up the issue, and the defendant struck out the similiter and demurred, and the plaintiff, after an unsuccessful application to set aside the demurrer as frivolous, obtained two several summonses for time to join in demurrer, and before the time expired signed judgment as for want of a plea:-Held, that the judgment was irregular. -An affidavit sworn before a commissioner, omitting in the jurat the words "before me," is bad. [S, C. 5 D. & L. 737. Applied, Park Gate Inn Company v. CoatÖ, 1870, L. R. 5 C. P. 637. Referred to, Dee.riny v. Hynduum, 188G, L. It. IS; L. It. Ir. .'J40. See further, ;-2 Ex. 442.] This was a rule, calling on the defendant Glover to shew cause why an order of Platt, B., should not be rescinded, and why the interlocutory judgment, thereby ordered to be set aside, should not be restored. It appeared from the affidavits, that, on the 26th of July, 1847, a declaration was delivered in the action, which was for goods sold and delivered. On the 30th of July, the defendant Glover pleaded in abatement thtit he was an attorney of the Court of Queen's Bench, and not an attorney of the Court of Exchequer. This plea was verified by an affidavit, the jurat of which was as follows:-"Sworn at Manchester, in the county of Lancaster, this twenty-ninth day of July, 1847. Ham. H. Buckley, a commissioner," (omitting the words " before me"). On the Hist of July, the plaintiff'replied by traversing the plea, made up the issue, and delivered it, with notice of trial for the ensuing Liverpool Assizes. On the 4th of August, the defendant struck out the similiter, and delivered a demurrer to the replication. On the Cth of [652] August, a summons was taken out to set aside the demurrer as frivolous, which summons was dismissed with costs. On the 10th of August, the plaintiff'obtained an order for time to join in demurrer until the fifth day of Michaelmas Term. On the 5th of November, the plaintiff obtained an order for four days' further time to join in demurrer. On the 8th of November, the pliiutiff signed interlocutory judgment as for want of a plea, treating the plea delivered as:a nullity, by reason of the defect in the jurat of the affidavit of verification. On the 17th of November, Platt, B., made an order setting aside that judgment for irregularity, with costs, which order the present rule sought to rescind. Martin shewed cause. The omission of the words " before me" in the jurat of the affidavit does not render the plea a nullity, but oidy an irregularity, which has been waived by the subsequent proceedings. En affidavits sworn at judges' chambers, the jurat is invariably in this form. EmpRi/ v. King (13 M. & \V. f)L9). [L'arke, B. In the case of Reijina v. The Inhabitant* of Bloxliam (0 Q. B. !~)28), the Court of Queen's Bqrieh considered that a similar defect, in an affidavit upon which a certiorari was granted, could not be waived.] That arose from the provisions of the 13 Geo. 2, c. 18, s. 5, which expressly prohibits a certiorari from issuing, unless it be duly proved on oath that the justices have had notice. The language of the 4 Ann. c. 10, s. 11, is different. It enacts, " that no dilatory plea shall be received in any court of record, unless the party offering such plea do by affidavit prove the truth thereof, or shew soiue probable matter to the Court to induce them to believe that the fact of such 278 GRAHAM 1 INGLEBY 1 EX 653 dilatory plea is tine" That 11 a provision foi the benefit of plaintiffs, and they may waive it by receiving the plea without affidavit [Platt, B [f the aigument on the other side be coirect, the plaintiff might go to trial, and [653] after veirhct foi defendant sign uiteilocutory judgment as for want of a plea] The piesent case is not distinguishable fiom Hoibjall v Matthenman (3 M & Sel 154), wheie it was held, that the plaintiff could not sign judgment after plea in abatement, because the affidavit of verification was sworn before the defendant's attorney Under the old law, a defendant could not plead in abatement aftei a...
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Johnson v Moreton
...law began to back-pedal. The maxim Quilibet [etc.] was held to be inapplicable to a matter in which the public had an interest ( Graham v. Ingleby and Glover (1848) 1.651, 655 Pollock C.B., 656-7 Parke B., 657 Alderson B.: "an individual cannot waive a matter in which the public have an int......
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