If error is pending, the court may sometimes stay proceedings in an action on the judgment.(1) 9. Effect of rule staying proceedings.]-The rule staying proceedings prevents the plaintiff enlarging any other rule in the cause, (2) or obtaining an order to hold to bail,(3) or taking out a rule to discontinue,() but not from countermanding a notice of trial. (5) The defendant does not waive a rule or order which stays all proceedings "until the further order of the court," by giving notice of abandoning it.(*) (1) Snook v Mallock, 5 A. & E. 248; Ribble v. Grantham Navigation Company, 16 M. & W. 882. See also ante, p. 530. As to staying proceedings against bail, see ante, p. 809. (2) Wyatt v. Prebell, 5 Dowl. 268. (3) Ball v. Stanley, 6 M. & W. 396; 8 Dowl. 344. Generally.]-The grounds on which the several proceedings in an action may be set aside have already been set forth in detail under the respective titles of this work. It is only necessary to notice here the subject, so far as it is founded on general principles. When the rules of practice governing the court have been departed from by either of the parties, the fault is technically described as either a nullity or an irregularity, the latter being only a lighter degree of the same thing. The chief distinction between them is that a nullity cannot be waived by the opposite party, whatever his conduct may be, and though at a considerable distance of time the objection is sought to be made available ;(1) while an irregularity always can be waived, but only if the application is made promptly. (2) Though, however, a nullity may be taken advantage of at a greater distance of time than an irregularity, it does not follow that the party can set up this nullity at any period, however remote, and irrespective of his own conduct in the interval. (3) An irregularity generally (1) Mortimer v. Piggott, 2 Dowl. 615; Cocks v. Edwards, 2 Dowl. N. S. 55; Graham v. Ingleby, 5 D. & L. 737. (2) See Holmes v. Russell, 9 Dowl. 487; Roberts v. Spurr, 3 Dowl. 551. (3) Thus, if he expressly agreed to a writ of summons being served after the time had expired for serving it, he may be prevented from afterwards objecting to the service, Coates v. Sandy, 2 M. & Gr. 313. Hence it is always safer to apply as soon as possible. consists in omitting some necessary proceeding, as a notice to plead previous to signing judgment for want of a plea, or a notice of trial previous to trying the cause, or in not taking some step within the necessary time, or in doing the thing in an informal manner. Sometimes the court will set aside a proceeding which has been taken contrary to good faith, though a step taken in such circumstances is not strictly an irregularity,(') and the application must be made promptly. (2) It is in general only the party or his representatives who can take advantage of any irregularity committed by his opponent, and not strangers to the proceedings. 2. Time for applying to set aside.]-The general rule is, that "no application to set aside process or proceedings for irregularity shall be allowed, unless made within a reasonable time, nor if the party applying has taken a fresh step after knowledge of the irregularity;"(3) and the rule must be complied with, though the party is in prison,() or is dead and his representatives apply.(5) The application must, in the long vacation, be made to a judge. (6) What is a reasonable time, necessarily depends on the circumstances of each case. Taking a fresh step is not the only mode of waiving the irregularity. If there have been several irregularities, and one only is taken advantage of, the others are waived. () An undertaking by an attorney to appear waives any irregularity in the writ or service. ($) But agreeing to terms is no waiver, if caused by a mistake of the judge in point of law; () nor is asking time to pay the debt of itself a waiver of the last proceeding.(1) The party applying cannot waive the irregularity unless he knows it, (") or has the means of (1) Smith v. Clarke, 2 Dowl. 218. (2) Saunders v. Jones, 3 D. & L. 770. (3) Rule Pr. 135, H. T. 1853. (4) Primrose v. Baddeley, 2 Dowl. 350; 2 Cr. & M. 468; Davies v. Watkins, 2 Dowl. N. S. 930; Claridge v. McKenzie, 5 M. & Gr. 251. (5) Weedon v. Garcia, 2 Dowl. N. S. 64. () Woodcock v. Kilby, 4 Dowl. 730; Doe d. Parr v. Roe, 1 Q. B. 700; Quilters v. Neely, 9 Dowl. 139. (7) Thorpe v. Beer, 2 B. & Ald. 373. (8) Anon. 1 Chitt. R. 129; Homfray v. Kenning, 2 Chitt. R. 236; id. 240; Coates v. Sandy, 9 Dowl. 381. () Whalley v. Barnett, 1 Dowl. 607; Woodcock v. Kilby, 1 M. & W. 41; 4 Dowl. 730. (10) Anon. 1 Dowl. 23; Rawes v. Knight, 1 Bing. 123. (1) Cox v. Tullock, 2 Dowl. 47; Anderdonv, Stirling, 2 Dowl. 267; Herbert v. Darley, 4 Dowl. 726. knowing it.(1) If the delay has been caused by any peculiarity in the circumstances, these must be set forth in the affidavit.(2) Delay caused by changing the attorney is no excuse ;(3) nor if caused by illness of the deponent.(*) If the motion is made in the court, and a previous application had been made unsuccessfully to a judge at chambers, this fact should be stated in the affidavit.(5) A party is not prevented from applying, though the costs have been taxed and paid; thus, where a mistake had been made in the declaration and particulars, these were allowed to be set aside after the costs had been taxed and paid.(©) 3. How application made.]-In ordinary and clear cases, the application should be made to a judge instead of to the court; and even in more doubtful cases, especially if the 'reasonable' time must elapse, before the application can be made to the court.(') If the judge refuse the application, the party may then appeal to the court; and this should be done within the first four days of the ensuing term. The court will take for granted in such cases that the application was made to the judge in proper time,(*) and where otherwise the application to the court would be too late, the rule should be drawn up upon reading an affidavit of that fact,(9) it being insufficient for the judge to certify the same in court.(1) Though the judge refuses to give time to apply to the court, the party will not be held to waive any necessary steps that may be taken in the meantime.(1) The application must be directed at the first irregularity committed; thus, if a writ is irregular, but the service regular, the application should be to set aside the (') Esdaile v. Davis, 6 Dowl. 465; Farber v. French, 5 N. & M. 658. (2) Ibid.; Orton v. France, 4 Dowl. 598. (3) Golding v. Scarborough, 2 H. & W. 94. (4) Orton v. France, 4 Dowl. 598. (5) Sugars ▼ Concanen, 5 M. & W. 30; 7 Dowl. 391; Goren v. Tae, 7 M. & W. 142. (6) Emery v. Webster, 9 Exch. 242; Cannan v. Reynolds, 5 E. & B. 301. (7) Woodcock v. Kilby, 4 Dowl. 739; Doe d. Parr v. Roe, 1 Q. B. 700. (8) Lane v. Newman, 1 B. C. Rep. 93. () Sugars v. Concanen, 3 M. & W. 30; 7 Dowl. 391. (19) Goren v. Tute, 7 M. & W. 142. (1) Woodcock v. Kilby, 1 M. & W.41; Bellotti v. Barella, 4 Dowl. 719; Tory v. Stevens, 6 Dowl. 275. writ. (1) Hence the rule should correctly state the proceeding to be set aside, and it will be discharged, if it seek, for instance, to set aside the writ instead of the service, (2) or to set aside the copy instead of the copy and service. (3) "Where a summons is obtained to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated therein."(4) Also"where a rule to show cause is obtained to set aside an award or annuity, the several objections thereto intended to be insisted upon at the time of moving to make such rule absolute shall be stated in the rule to show cause."() The rule will not be a stay of proceedings, unless it so order, until it is made absolute; and if it so order, there must have been a two-days' notice previous to the application. (6) The rule should also ask for the costs. There should be an affidavit on making the application, annexing, if neces ary, a copy of the process or document stated to be irregular, in order to make the objection more distinct. Thus, an affidavit to set aside a judgment on a cognovit should state the error in the accounts; (7) to set aside an interlocutory judgment, it must state judgment has been signed; () to set aside proceedings for want of being served with process, it should show he is defendant, and that the process never came to his knowledge.() It seems the defendant in his affidavit need not swear to merits. (10) If the case is doubtful, the court may refuse the application and leave the party to bring error, if the irregularity form an error on the record;(1) and in some cases, as on setting aside a judgment, the court impose terms, so as to prevent the defendant bringing an action.(12) 4. Admitting the irregularity.]-Where the party committing the irregularity discovers it, and wishes to avoid the (1) Edwards v. Danks, 4 Dowl 357; Hardwicke v. Wardle, 4 D. & L. 739; Chapman v. Becke 3 D. & L. 350. (2) Huggitt v. Parkin, 1 Bing. 65. (3) Hall v. Reddington, 5 M. & W. 605; Crow v. Field, 8 Dowl. 231; Kenny v. Bishop, 9 Dowl. 57. (4) Rule Pr. 136, H. T. 1853. (8) Classey v. Drayton, 8 Dowl. 184. (9) Emerson v. Brown, 8 Sc. N. R. 219; Stevenson v. Thorn, 13 M. & W. 149. (10) Williams v. Williams, 2 C. M. R. 473; Claridge v. McKenzie, 5 M. & Gr. 251; 2 Dowl. N. S. 898. (1) Walker v. Needham, 1 Dowl. N. S. 220. |