Peterson and Another v Davis
| Jurisdiction | England & Wales |
| Judgment Date | 06 June 1848 |
| Date | 06 June 1848 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 1241
IN THE COURT OF COMMON PLEAS
peterson and another v. davis. June 6, 1848, To entitle a defendant to enter a suggestion to deprive the plaintiff of costs, under the 10 & 11 Viet. c. Ixxi. (the London local court act), it must be shewn distinctly that the plaintiff, at the time of commencing the action, dwelt within twenty miles of the defendant's place of abode.-A suggestion that the plaintiffs did not dwell more than twenty miles from the place where the defendant carried on his business, -was held bad, on demurrer.-A previous application for such a purpose to a judge at chambers, does not preclude the defendant from afterwards applying to the court, upon the same or upon amended affidavits. This was an action of debt for goods sold and delivered, in which the sum sought to be recovered, and ultimately recovered by the plaintiff, was 121. 3s. 6d. Lush, on a former day, obtained a rule calling upon the plaintiff to shew cause why so much of the final judgment as related to costs should not be set aside; or [236] why the plaintiff should not be restrained from taking out execution for more than the amount of the debt recovered at the trial; or why, upon payment by the defendant of the taxed costs of the judgment, the judgment should not be set aside, and why the plaintiff should not carry in the record, and the defendant be at liberty to enter a suggestion thereon to deprive the plaintiff of his costs, the verdict recovered being for a sum not exceeding 201., for the recovery of which a plaint might have been entered in the sheriff's court of the city of London, pursuant to the local act 10 & 11 Viet. c. Ixxi. The affidavits upon which the rule was obtained,-sworn by the managing clerk of the defendant's attorney,-stated that the action was commenced on the 14th of March, 1848; that the cause was tried before the sheriffs of London on the 12th of May, when a verdict was returned for the plaintiffs for 121. 3s. 6d.; that the plaintiffs are boot and shoe-makers carrying on business and having a shop and premises at No. 3 Poultry, in the city of London, where they have for many years carried on their said business, and from which said place of business the said goods were ordered and supplied; that the defendant is a merchant carrying on his business at No. 133 Fenchurch Street, in the city of London, where the writ of summons was directed and served; that the defendant, before and at the time of the issuing of the said writ of summons, dwelt and carried on his business in the city of London aforesaid, of which the plaintiffs were well aware; that, in pursuance and by virtue of the statute 10 & 11 Viet. c. Ixxi., a court was, before the issuing of the said writ of summons, established in and for the city of London, and the liberties thereof, to which court the defendant was liable to be summoned by plaint; that the plaintiffs ought to have entered their plaint in the local court, both parties being [237] at the time the action was brought, resident within the jurisdiction of the said local court; that the plaintiffs, at the time of the commencement of this suit, did not dwell more than twenty miles from the defendant, but, on the contrary, did dwell within the distance of one mile from the defendant; that this action was not an action of ejectment, nor an action in which, although the debt and damages claimed did not exceed 201., the title to any corporeal or incorporeal hereditaments, or any toll, fair, market, or franchise could or might come, or was, in question, nor in which the validity of any devise, bequest, or limitation under any will or settlement was in dispute or could be disputed, nor an action of libel or slander, or for Criminal conversation, or for seduction, or for breach of promise of marriage; that the plaintiffs, at the time of the commencement of this suit, dwelt and carried on their business at No. 33 Poultry, in 1242 PETEESONò V. DAVIS 6 C. B. 238, the city of London, and not more than twenty miles from the defendant; that the defendant also dwelt and carried on his business as a merchant within the city of London for upwards of six calendar months then next before the time of the commencement of this action, and that he has continued to carry on his said business there, and that the cause of action arose in the said city of London; that the plaintiffs were not, nor was either of them, at the time of the commencement of this action, nor are they, nor is either of them, officers or an officer of the said court holden under the provisions of the said act, nor was the defendant at the time of the commencement of this suit, nor is he, an officer of the said court, nor did the judge who tried the cause, or any judge of this court, certify on the back of the record, or in any other manner, that the action was fit to be brought in the superior court; that, on the 12th of May, immediately after the trial of the cause, a summons was taken out, calling upon the plain tiffs to shew cause before a judge [238] at chambers why a suggestion should not be entered, to deprive them of costs, or why the proceedings should not be stayed, in order to enable the defendant to apply to the court;, that it was on that occasion objected, on the part of the plaintiffs, that the application could only be made to the court, and that the affidavit was defective, inasmuch as it did not negative the plaintiffs, or either of them, being officers or an officer of the local court; that a second application was made upon an amended affidavit, but that the learned judge declined to entertain the matter again, and also declined to stay the proceedings ; and that the plaintiffs' attorney immediately after the said summonses were dismissed, proceeded to tax the costs of the action, and on the 17th of May instant signed judgment, and threatened to issue an execution ; whereupon the defendant's attorney gave him notice of the present motion. Paterson now shewed cause, upon an affidavit stating that the house No. 133 Fenchurch Street, was not the place of residence of the defendant, but was entirely occupied as offices, no person whatever sleeping therein; and that the deponent had not been able to discover the defendant's place of abode. The matter having already been heard and adjudicated upon before a competent tribunal, the court will not allow it to be re-agitated either upon the same or upon amended materials. In The Queen v. The Great-Western Eailway Company (5 Q. B. 597, 1 D. & L. 874), the general rule of practice was held to be, that a party failing in a motion, by reason of a defect in his affidavit, shall not repeat his application on an amended affidavit, shewing no ground of application which might not have been presented before. The only exceptions which the court will generally [239] admit, are, where the amendment consists merely in correcting an error in the title or jurat of the affidavit. In Sherry v. Oke (3 Dowl. P. C. 349), which is there cited, Patteson, J., adopted a more liberal view; but, in The Queen v. The Great-western Railway Company, he admitted that he had been wrong. In The King v. The Sheriff of Devon (2 Ad. & E. 296), the court of...
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