Ross v Green
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1855 |
| Date | 05 February 1855 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 702
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 3 C. L. R. 510; 24 L. J. Ex. 193; 1 Jur. (N. S.) 285; 3 W R. 239
Ross v. green. Feb 5, 1855.-The Reg. Gen., Hil. Term, 2 Will. 4, r 35, (repealed and re-enacted in terms by the 15 & 16 Viet. c. 76, s. 58), which provides, that "a plain tiff shall be deemed out of Court unless he declare within one year after It EX. 892. ROSS V. GREEN 703 the writ of summons is returnable," does not apply to the case of proceedings stayed for more than a year by an order for security for costs.-But if the security be given at any time within the year, the plaintiff must declare before its expiration. [S. C. 3 C. L. R. 510 24 L. J. Ex. 193 ; 1 Jur. (N. S.) 285 ; 3 W R. 239 ] In this case, a writ of summons issued on the 14th of March, 1849, and on the same day the defendant's attorney gave an undertaking to appear. On the 10th of April, 1849, and before declaration, the defendant obtained an order upon the plaintiff for security for costs, he being at that time resident in Canada. That order remained uncomplied with until the 19th of December, 1854, when the plaintiff applied to a judge to rescind the order, on the ground that he had returned to, and intended to reside in, this country The order was rescinded, and on the 1st of January, 1855, the plaintiB delivered a declaration. Maynard had obtained a rule nisi to set aside the declaration on the ground that the plaintiff was out of Court, he not having declared within a year after the writ of summons was returnable. [892] Asplaud shewed cause (Jan. 27). First, under the circumstances of this case, there was no period from which the yeai would begin to ruu. By Reg. Gen. Hil. Term, 2 Will. 4, r. 35, "a plaintiff shall be deemed out of Court unless he declare within one year after the process is returnable." The process is returnable on the day when it is served on the defendant Here there has been no actual service [Martin, B. The undertaking to appear must be considered for this purpose as actual service. Parke, B. Prima facie, the defendant ought to have appeared within a yeai after his undertaking.] Secondly, the application should have been to rescind the order of the 19th of December, which released the plaintiff'from the obligation to give security foe costs. That is an order made in the suit, and being in force, it shews that the suit is existing [Alderson, B. The only question is, as to the meaning of the...
To continue reading
Request your trial
-
Howard v Howard
...and HOLMES, JJ. HOWARD and HOWARD O'connor v. Sierra Nevada Co.ENR 24 Beav. 435. Mathews v. ChichesterENR 30 Beav. 135. Ross v. GreenENR 10 Ex. 891. Place v. campbell 6D. & L. 113. Palmer v. Lord Ashbrook 4 Ir. Jur.(O. S.) 193. Eyre v. BaldwinUNK 4 Ir. C. L. R. 270. Wetenberg v. MortimoreEL......
-
Doran v Chancellor
...v. DaleyUNK 7 Dowl. P. C. 25. Pollard v. Mƒ€™Dermott 1 Smyth, 1. Cannon v. Wellington 9 Ir. L. 138. Ross v. GreenENR 10 Ex. 891. Thompson v. Armstrong 1 Ir. Jur. N. S. 338. Garrat v. Thorpe Dowl. N. P. C. 23. Mortimer v. PigottUNK 2 Dowl. P. C. 615. Coates v. SandyUNK 2 M. &......