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![handle is hein.slavery/ssactsengr0251 and id is 1 raw text is: WILSON V. UPFILI8
[245] WILSON V. UPFILL. Nov. 25, 1847.
Al order staying all further proceedings in the cause until the further order of the
court, cannot be waived by a notice of abandonment of such order from the defen-
dant, so as to enable him to move for judgment as in case of a nonsuit.
Issue was joined in this cause oil the 20th of July, 1846, and notice of trial was
given for the then next summer assizes at Gloucester. On the 26th of May, 1847, the
defendant obtained a rule nisi for judgment as in case of a nonsuit, which was dis-
charged, by consent, on the 12th of June, the motion appearing to have been made
prematurely, inasmuch as the defendant had never notified to the plaintiff his abandon-
ment of an order made on the 7th of August, 1846, whereby it was ordered that all
further proceedings in this cause should be stayed until the further order of the court.
On the 25th of June, 1847, the defendant gave the plaintiff a formal notice that he
abandoned the order of the 7th of August, 1846, and, early in the present term, he
again obtained a rule nisi for judgment as in case of a nonsuit, against which
Willes now shewed cause. This not being an order exclusively for the benefit of
the defendant, he was not at liberty thus to abandon it, at his election. At all events,
the present motion is prematurely made. There has been no fresh default since the
plaintiff's hands were loosed (if loosed they were) by the notice of the 25th of June,
1847.
Pashley, in support of the rule. The defendant was at liberty to waive the order
by which the proceedings were stayed; and, having done so, the plaintiff was bound
to proceed according to the practice of the [246] court. In Maunder v. 'ollett (ante,
vol. iii. p. 554), it was held that a defendant who has obtained an order for particulars
of the plaintiff's demand, with a stay of proceedings until they are delivered, may
waive the delivery of such particulars, and plead or demur to the declaration.
Wilde, C. J., there says : It is idle to say that the defendant cannot waive an order,
or take any step in a cause, without obtaining a fresh order to rescind it.
WILDE, C. J. It seems to me that such an order as the present does not fall
within the rule, that an order operating exclusively for the benefit of one side may be
abandoned. It continued to be a binding order until rescinded by the authority by
which it was made.
The rest of the court concurring,
Rule discharged, with costs.
End of Michaelmas Term.
[247] CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, AND
UPON WRITS OF ERROR FROM THAT COURT TO THE EXCHEQUER CHAMBER,
IN MICHAELIAS VACATION, IN THE ELEVENTH YEAR OF THE REIGN OF
VICTORIA.
HARTLEY AND ANOTHER v. CUMMINGS. HARTLEY v. SAME. Dec. 6,1847.
[S. C. 17 L. J. C. P. 84; 12 Jur. 57: at Nisi Prius, 2 Car. & K. 433. Adopted,
Evans v. Walton, 1867, L. R 2 C. P. 620. Applied, Robinson v. Heuer, [1898]
2 Ch. 458.]
A. contracted to serve B. and his partner or partners for the time being, for seven
years, in his business of a glass and alkali manufacturer, and at all times during the
term to do his best endeavours, and use his utmost care and diligence in the works;
and, further, that he would not, at any time during the term, neglect or absent
himself from the said service, without the consent in writing of B. or his partner
or partners for the time being, or either or such of them as should carry on the
business; nor would work for or serve any other person or persons, without such
consent :-in consideration of which service, B. agreed to pay A. 24s. per week for
a certain amount of work, and to find him some other description of work, provided
he should not require that quantity of the specified work, so that A.'s wages should
not be less than 24s. per week, except when a furnace should be out, when A. agreed
5 C. B. 245.
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