Batchelder v. White

After the filing of the opinion in this case, November 6r 1907, the plaintiff’s counsel moves for leave to file a petition for re-argument, on the ground that the defendant had waived its right to object to the failure of the plaintiff to give legal notice of the claim. The application assumes that the giving of the notice in cases like the present is the commencement of the suit, and hence may be waived like any irregularity in process.

Under our system of practice this assumption is erroneous. As stated in the recent opinion, the giving of the notice is no part of the suit, but is a…