Lloyd v Berkovitz
| Jurisdiction | England & Wales |
| Judgment Date | 20 November 1846 |
| Date | 20 November 1846 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 1086
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 16 L. J. Ex. 278.
lloyd v. berkovitz. Nov. 20, 1846.-Leave was given to a defendant to move for a new trial after the first four days of a term ; but the name of the case was not inserted in the "new-trial motion paper," nor was any notice of the circumstances given to the plaintiff. The plaintiff signed judgment on the 5th day of the term. A rule for a nonsuit or new trial was afterwards served on the plaintiffs attorney. A rule was granted to discharge that rule, but was ordered to stand over till the merits of the first granted rule should be disposed of. The defendant's proper course would have been to have moved to set aside the judgment. [S. C. 16 L. J. Ex. 278.] On the 10th of November, Kennedy obtained a rule for setting aside the verdict for the plaintiff', and entering a nonsuit, or for a new trial, which was served on the next day, being the ninth day of the term. The trial had been before the under-sherift of Middlesex, who gave leave to move as above. The writ of trial was returnable on the 17th of July, 1846. The plaintiff's attorney, after the expiration of the first four days of this term, searched the rule office, and examined the list of causes kept there, in which leave had been given to move after the four days. The cause was not entered in the list called the "New Motion Paper," at the rule office, and no notice was given to the plaintiffs attorney that leave had been given to the defendant to move after the four days. The plaintiff's attorney then obtained the writ of trial from the sheriff with its return, arid on the 7th of November signed judgment (see P'ierce v. Derry, 4 Q. B. 6.15, 641), giving the defendant's attorney notice of taxation for the [32] next day. On the llth, the defendant's attorney served a copy of the above rule on the plaintiff's attorney. No notice was given to the under-sheriff by the defendant to retain the writ of trial, without delivering it to the plaintiff's attorney after the said four days (see A'tigel v. Ihler, 7 Dowl. P. C. 846). On the 17th of November, Otter obtained a rule for discharging Kennedy's rule of the 10th of November. The affidavits used for shewing cause stilted, that, before the first four days of term had expired, the defendant's attorney informed the plaintiff's attorney that he had instructed counsel to move for a nonsuit; and that, if it could nob be moved in the...
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