Finch v. Kemble — 1 Cole. & Cai. Cas. 112

Majority

p. 112

Finch ads. Kemble.

Headnote

A CASE was submitted without argument, consisting of the following facts : A declaration Was served on the tenant in possession, who, shortly afterwards, quitted, and another came in; then some person, acting as the agent of the plaintiff, caused a second declaration to be served upon the new tenant; this being done without the knowledge of the plaintiff’s attorney, he proceeded under the first declaration, and took judgment against the casual ejector; and now

Gephart, for the second tenant,

moved to set aside the judgment and all subsequent proceedings.

By the service of a new declaration by plaintiff’s agent, though without knowledge of his attorney, the first declaration and service was waived. The plaintiff may at any time stay or waive his own proceedings, and his acts shall bind him.

Let the proceedings in the first suit be set aside, and the lessor of the plaintiff pay the costs of this application.