<^
>«=>
UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
Farrand 's Premium Edition.
THE
PRACTICE
OF THE
COURT OF KING'S BENCH
IN PERSONAL ACTIONS:
WITH
REFERENCES TO CASES OF PRACTICE
IN THE
COURT OF COMMON PLEAS.
IN TWO VOLUMES.
VOL. IL
first american,
:fuom the corrected and enlarged londod edition-
By WILLIAM TIDD, Es(^.
OF THE inner TEMPLE.
PHILADELPHIA:
PUBLISHED BY WILLIAM P. FARRAND.
1807.
TO THE PUBLIC.
In order to insure correctness the publisher of this book has
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[ 665 ]
CHAPTER XXXI.
O/MAKiyiG UP, and entering the Issue.
A N issue is defined to be a single, certain, and
material point, issuing out of the allegations or
pleadings of the plaintiff and defendant ^; but it more
commonly signifies, the entry of the allegations or
pleadings themselves : And it is either in iaWj upon
a demurrer, or in fact, which is triable by the court,
upon nul del record, or by a jur}^, upon pleadings
concluding to the country.
An issue in fact triable by a jury, is either such
as arises in the course of an adverse suit, or is
directed by some court of law or equity, or framed
under the authority of an act of parliament, for the
trial of a disputed question; which latter is called a
feigned issue ^ Two or more issiles are sometimes
joined in the same cause ; as where the defendant de-
murs and pleads to different counts of a declaration,
or the plaintiff demurs and replies to different pleas,
or where, in an action against two or more defen-
dants, they appear by different attornies, and sever in
pleading.
The
«
» Co. Lit. 1 26. a. «> Append. Chap. XXXL $ 37
Vol IL B
666 OF MAKING UF, AND
The issue, as dependent on the pleadings, \% gene-
ral or special. In every action, wherein the defendant
pleads the general issue, or demurs generally to the
declaration ; on a plea oiplene administramt by an ex-
ecutor or administrator ; in debt^ where the defendant
pleads a special non est factum^ comperuit ad diem to a
bail-bond, or nul tiel record to an action on a j udgment
or recognisance ; in coiienantj where hisplea concludes
to the country ; and in trespass^ where he pleads son
assault demesne^ liherwn tenementum^ or not guilty to
a new assignment ; the issue is made up, on treble-
penny stamped paper, by theattornies; who likewise
make up all issues and demurrers upon writs of error,
scire facias, ^ax^auditaquerda^ and repleaders, or other
matters formerly entered of record '^. In all other
cases, both by bill and original, the issue, or as it is
commonly termed, the paper-hook, or upon an issue
in law, the demurrer-hook, is made up by the clerk
of the papers '^; who charges the plaintiff's attorney
eight pence per sheet for the whole book, zn^-four
pence per sheet for all the pleadings subsequent to
the declaration, (which the plaintiff's attorney fur-
nishes him with a copy of,) besides stamps.
Formerly,
-- R. T. 12 W. III. a. d Say. Rep. 97. but see 2 Str.1266.
ENTERING THE ISSUE. 667
Formerly, when the plaintiff in his replication con-
cluded to the country, or demurred, the issue could
not have been made up, till a four-day rule had been
given and expired, to rejoin, or join in demurrer; but
the practice in that respect is now altered, it being a
rule, that in all special pleadings, where the plaintiff
t^kes issue upon the defendant's pleading,or traverses
the same, or demurs, so as the defendant is not let in
to allege any new matter, the plaintiff may make up
the paper-book, without giving a rule to rejoin "": but
otherwise a rule must be given for that purpose, un-
less the defendant be bound, by a judge's order, to
rejoin gratis.
The issue contains an entry or transcript of the
declaration, and other subsequent pleadings *";
and in actions by bi//y should be made up of the
term in which it is joined^: And it is prefaced
with a memorandum, stating the exhibiting of the
bill, and that there are pledges for the prosecu-
tion of it ''. The reason for a memorandum \s,
that proceedings by bill were formerly considered
as the bye-business of the court ': And it varies
in four cases: first, when the issue is of the same
term in which the cause of action accrued; se-
condly, when it is of a term subsequent to the
cause
e R.T. 1 G. II. a. ^ Append. Chap. XXXI. $
f Append. Chap. XXXI. § J, &c.
1, Sec. i Oilb. C.P. 47.
K 3 East, 204.
I
668 or MAKING UP, AND
cause of action, but of the same term with the decla-
ration ; thirdly, when it is of a term subsequent to
the declaration, and within four terms after; fourthly,
when it is more than four terms after the declaration.
In the first case, the memorandum is specialj^stating
the bill to have been exhibited on a particular day in
term, after the cause of action accrued : In the se-
cond case, it states the bill to have been exhibited on
the first day of the term in which the declaration was
delivered : In the third and fourth cases, it pursues
the fact, but with this difference, that in the third case,
the term of exhibiting the bill is referred to as last
past, and in the fourth, as in a certain year of the
king^s reign.
The bill or declaration then follows ; and afterwards,
if the plea be of a term subsequent to the declaration,
the issue by bill contains the entry of an imparlance ^ ;
which, we have seen, is general or special. Where a
special imparlance is necessary, to enable the defen-
dant to plead any particular plea, it must be entered
in the issue ; but otherwise the entry of a general im-
parlance is sufficient : And it is not necessary to en-
ter more than one imparlance, though several terms
have intervened between the declaration and the
plea ^. When the replication is of a term subse-
quent to the plea, it is usual for the clerk of the
papers
J Append. Chap. XXXI. § 2. k Id, ibid.
ENTERING THE ISSUE. 669
papers to insert continuances in the paper-book ; but
this does not seem to be necessary ^
The pleadings are next copied, in their proper or-
der, beginning each with a new line ; and under them,
the clerk of the papers is directed to write the names
of the counsel by whom they are signed, as well on
the part of the plaintiff, as of the defendant "". For-
merly, if there had been a plea in abatement, upon
which a respondeas ouster was awarded, and after-
wards the defendant had pleaded in chief, it was ne-
cessary to enter the plea in abatement, and judgment
of respondeas ouster, in making up the issue, as well
as the plea in chief"; and where they were entered
in the plea-roll, but omitted in the record of Nisi
PriuSj the court on that ground arrested the judg-
ment, the record of Nisi Prius not appearing to be
in the same cause ". Afterwards a rule was made,
that for the future, a copy of the plea in chief only
should be delivered and paid for p; and agrecably
thcreto, where the plea in abatement, and judgment
of respondeas ouster^ were omitted in the plea-roll, the
court held rfie omission to be immaterial; particu-
larly, as the defendant had accepted and paid for the
issue '^.
An issue in fact by bill, Avhen triable by the
country, concludes with the award of the 'venire
facias,
1 5 Co. 75. 447. 5 Mod. 399. 12 Mod.
■n R. E. 18 Car. II. 119.S. C.
" 7 Mod. 51. 1 Salk. 5. p 7 Mod. 51. 1 Salk. 5.
« 4 Ld. Raym. 329. Carth. i 3 Bur. 1.682.
670 OF MAKING UP, AND
facias^ or process to bring in the jury, as follows:
" Therefore let a jury thereupon come^ before our lord
'* the king at Westminster, on (the return of the writ,
" being a day certain), by whom^ £sV. and ixiho nei-
" ther^ %sc. to recognise ^ ^c. because as 'mell^ £s?c. *";
" the same day is given to the parties aforesaid,
" at the same place ""^ If there are several issues
in fact, triable by the country, the conclusion is as
follows " Therefore as well to try this issue, as the
*' said other issue, or issues, above joined between the
" parties aforesaid, let a jury thereupon come, £s?c*.'*
Or if there are several defendants, who pleads sepa-
rately, the award of the venire facias states between
whom the different issues are joined, thus: " There-
^^ fore as well as to try this issue, as the said other
*' issue, or issues, above joined between the said A. B.
*' and C. D. ^c. let a jury thereupon come, £?*^","
Where there are several defendants, some of
whom plead, and others let judgment go by de-
fault, the venire facias is awarded specially, as
well to try the issues, as to assess the damages
against the latter defendants. In this case, as it
is a rule that tlie jury who try the issues, shall
assess
"■ For the explanation of * Apend. Chap. XXXI.
these et cetera, see the writ of § 1-
■venire facias, fiost. Chap. ^ ld.% S,
XXXV. ^Id.^7.
ENTERING THE ISSUE. 671
assess the whole of the damages ' , there is an en-
try of an iinica taxatio as follows: " And because it
" is coni}e7iient and necessary that there be but one
" taxation of damages in this suitj therefore let the
'■^ gimng of judgment in this behalf against the said
" CD. (the defendant who let judgment go by de>
" fault) be stayed^ until the trial and determination of
" the said issue., or issues, above joined between the
" said A. JB. and the said E. jp." (the other defen-
dants ").
If there be several issues, in fact and in law, the
award of the 'venire is, as well to try the former, as
to assess the damages upon the latter; absolutely , if
the issues in law have been already determined in fa-
vour of the plaintiff, or othtrwist conditionally, in case
judgment shall be thereupon given for him". In these
cases, if the issues in law are first determined, and
the plaintiff is in consequence entitled to damages
upon part of the declaration, or against one of seve-
ral defendants, there is an entry of an unica taxatio,
to postpone the assessment of such damages, until
the trial of the issues in fact : But if the issues in
fact are first tried, an unica taxatio is unnecessary;
for in such case, the jury who try the issues in fact
will of course assess the damages.
In
V II Co. 5, 8cc. w Append. Chap. XXXT. M- " ^d. § 6.
672 OF MAKING Vt, AND
In actions by original^ the issue is entitled of the
same term as the declaration y ; and begins with a
copy of the declaration, without a inemorandum'^:
And it is not necessary to enter imparlances % if the
pleadings are of a subsequent term ^.This however is
sometimes done ; and imparlances are commonly en-
tered by the clerk of the papers, between the plea and
replication '', where they are of different terms, in
making up the issue by original, as well as by bill.
The award of the 'venire facias by original, is as fol-
lows: " Therefore it is commanded to the sheriff ^ that
" he cause to come before our lord the king^ on (a gene-
" ral return day,) wheresoever he shall then be in Eng-
" land, twelve J ^c. by whom, ^c. and who neither,
*' l^c. to recognise, ^c. because as well, £5?^/" But
where the sheriff is a party, or interested in the cause,
the venire is awarded to the coroner^; or if there are
two sheriffs, and one of them is interested, to the
other *; and if the coroner, as well as the sheriflp, is in-
terested, th^venire is awarded to two persons, appoint-
ed by the court, called elisors K Where the venire is
laid
y Imp. K. B. 541. Or it = Id. § 3.
may be entitled of the term d 2 Lil. P. R. 124. Append,
issue is joined, as in actions Chap. XXXI. § 16, 17.
by bill. Id. 398. e Append. Chap. XXXI.
^ Append. Chap. XXXI. § 14, 15.
§3. f 3 East, 141. Barnes, 465.
^ Id. ibid. Append. Chap. XXI. § 18.
*> Id. § 4.
ENTERING THE ISSUE. 673
laid in a county -palatine, instead of the common
award of a 'venire facias, there is a special award of
a mittimus to the justices there, commanding them
to issue the jury-process, and when the cause is
tried, to send the record back again, to the court
above '^. At what time the practice originated, of
sending records by mittimus into counties- palatine,
is not quite clear; but so late as the 11 W. III. the
court expressly said, they could not order a trial in
the county- palatine of Lancaster, and therefore they
sent the record to be tried in Yorkshire, as being the
next county ^.
When a fair and impartial, or at least a satis-
factory trial cannot be had, in the county where
the action is laid, the court must be moved, on
an affidavit of the circumstances, for leave to enter
a suggestion on the roll, with a nient dedire, in or-
der to have the trial in the next adjoining county ' :
And as the suggestion in such case is not travers-
able, the court will see that it is necessary, before
they give leave to enter it ^ The cause in that case
must be tried in the next adjoining county, though
it be a county-palatine'. And by the statute 38
Geo.
g Append. Chap. XXXI. § ^ 3 Bur. 1333. By Ld.
9, 10. Mansjidd and the court. E.
h 12 Mod. 313. and see Say. 23 G. III.
Rep. 47. 1 T. R 368. 1 7 T. R.735. 1 T. R. 363
• Append. Chap. XXXI. § contra.
19.
Vol. XL C
674 OF MAKING UP, AND
Geo. III. c. 52. § 1. it is enacted, that " in every
" action, whether the same be transitorj'^ or local,
*' which shall be prosecuted or depending in any of
*' his Majesty's courts of record at Westminster, if
" the venue in such action be laid in the county of
*' any city or town corporate in England, the court
*' in which such action shall be depending may, at
" the prayer and instance of any plaintiff or defendant,
" direct the issues joined in such action to be tried
*' by a jury of the county next adjoining to the
" county of such city or town corporate, and award
'' proper writs of venire and distringas accordingly,
" if the court shall think proper." The cities of
London and IVestminster, Bristol and Chester, and
the borough of Soiithwark, are excepted out of this
statute'". When the action is laid in a place where
the king's UTit of venire does not run, as in Wales "
and Berwick upon Tweed'', &c. it is awarded to the
sheriff of the next English county, upon a sugges-
tion that the issue ought to be tried there. In Sir Pe-
ter Delme''s case p, it was settled, and has ever since
been the practice of the court, that if either party
would suggest any special matter, about awarding
the venire out of the common course, he should
give
«n § 10. 1036. and see Append. Chap,
n Append. Chap. XXXI. § XXXI. §21.
20. PlO Mod. 198
o 2 Bur. 855. 2 Blac. Rep.
ENTERING THE ISSUE. 675
give a copy of it to the adverse party, and allow
him a reasonable time to consider it, before a merit
dedire is entered*^. And where there are several
plaintiffs or defendants in a personal action, and one
of them dies before issue joined, his death should
be suggested, in making up the issue ; but other-
wise it need not be suggested, till the judgment-roll
is made up^
An issue in fact^ triable by the record, may con-
elude by praying an inspection of it, if the record be
of the same court '; or whether it be of the same, or
of a different court, the issue may conclude by giv-
ing the party pleading a day to produce it '. And on
an issue in /^w, the demurrer-book concludes as
follows: " But because the court of our lord the king
" now here is notyet admsed, what judgment, to ghe
" of and upon the premises^ a day is given to the par -
" ties aforesaid y before our said lord the king at
" Westminster, (if by bill^ or if by original where-
" soever, fee.) on (the day appointed for argument),
" to hear judgment thereon, for that the court of our
" said lord the king now here is not yet advised tliere-
" of, &c."
The
q 1 Str. 235. Append. Chap. &:c. 35.
XXXI. § 11, &c. And for the ^ Append. Chap. XXXI. ^
nature and effect of a nient 22. 24.
dedire, see 1 Str. 183. t Id. § 23. 25.
«• 1 Bur. 363. and see Ap- «» Id. % 26.
pend. Chap. XXXI. § 11,
676 07 MAKING UP, AND
The general issue or paper-book being made up,
is delivered to the defendant's attorney or agent; and
if there are several defendants, who appear by differ-
ent attornies, a copy should be delivered to each of
them. In the margin of the paper- book, a condition-
al rule is given by the clerk of the papers, signify-
ing, that unless the defendant receive the paper-book,
and return it by a particular day, to be enrolled, a
writ of inquiry will issue, or rule for judgment be
entered "". If a paper-book be made up and delivered
in term-time, or within Jour days exclusive after
term, with a rule given thereon, by the clerk of the
papers, for bringing the same to be inrolled, and
the defendant's attorney do not, within four days
after the delivery thereof, bring it back, and join
with the plaintiff in the special issue or demurrer,
or waive his special plea, and give the general issue,
or demurrer to any special issue tendered, judg-
ment may be entered and signed, as if no plea
had been pleaded. And the clerk of the papers has
no discretion to give a rule to return the paper-
book in less than four days, even though the defen-
dant be under terms to take short notice of trial '^.
But where a plea is not put in in time, so that a
paper-book may be made up and delivered in term,
or within four days after, yet if it be made up and
delivered within eight days after the term, the
defendant's
V Append. Chap. XXXI. § ^ Hale v. Smallwoodj E. 35
27. G.III.
ENTERING THE ISSUE. 677
defendant's attorney is obliged to take it, and re-
turn it again in four days after the delivery, or judg-
ment may be signed ''.
If a plea be pleaded in term, or in time after term,
and the paper-book be not made up and delivered
within eight days exclusive after term, if it be an
issue to be tried in London or Middlesex^ or a de-
murrer, the other pai ty is not bound to deliver back
the book, till within the first four days of the next
term ; but if it be an issue to be tried at the assizes y
the defendant's attorney should deliver back the book
within four days after the delivery thereof, and join
in the special issue, or give the general issue, and
take notice of trial; or else the plaintiff's attorney
may sign judgment by default, as if the defendant
had not pleaded '. If the paper-book be of an issue
in fact^ the four days for keeping it are reckoned
exclusive; if of a demurrer, or issue in la'w, they are
inclusi'ue '■. And when a paper- book is not returned
within the four days, the plaintiff's attorney may
afterwards refuse to accept it, and sigii judgment ^;
but judgment cannot be signed after the paper-
book is accepted, though it be not returned in due
time.
Within
" R. T. 1 G. II. (c). a Dou£?. 197. 4 T. R. 195.
y Id. ibid. but see DoUg. 67. 1 T. R. 16.
^ R. T. 1 Geo. II. (a); but scmb. contra.
see Imp. K. B. 294.
678 OF MAKING UP, AND
Within the time limited for that purpose, the de-
fendant's attorney or agent either returns the paper-
book, or not; and if returned, he either returns it
in the state it was delivered to him; or if he has not
been ruled to abide by his plea, he may waive the
special pleadings, and give the general issue ^; or if
the similiter to the replication has been added by the
plaintiff, he may strike it out and demur ^ In the
latter case, the plaintiff having joined in demurrer, a
demurrer-book is made up by the clerk of the pa-
pers, and delivered over to the defendant's attor-
ney; who must return it in twenty-four hours,
unless the demurrer be special, and the defendant
has not been ruled to abide by his plea, in which
case he may still waive his special plea and demur-
rer, and give the general issue. If the paper-book
be returned with the general issue, the plaintiff's at-
torney makes up and delivers the issue afresh, . in
the common form.
On the delivery of the issue ^, or returning
the paper-book ^, the defendant was formerly
obliged to pay for copies of the pleadings, ex-
cept in actions by a pauper*^, or against an at-
torney
b2Salk. 515. «» R. T. 12 W. III. 7 Mod.
«= For the form of the notice 51. Say. Rep. 19. Wenhams.
of having struck out the re- Tristram^ H. 21 G, III.
joinder, &c. see Append. «■ 5 T. R. 400.
Chap. XXXI. § 28. i Id 509.
ENTERING THE ISSUE. 679
tomey^ or prisoner^; and in a qui tarn action, he
paid double '. This was called issue- money ; on non-
payment of which, the plaintiff might have signed
judgment ^. But by a late rule of court ^, no judg-
ment shall be signed for non-payment of issue-mo-
ney; but the same shall remain to be taxed, as part
of the costs in the cause : Which rule is construed
to extend, not only to general issues, but also to all
special issues, and the paper and demurrer-books
made up therein '".
By accepting the issue, or returning the paper-
book, the defendant's attorney admits it to be pro-
perly made up " : And therefore if there be any
variance therein from the pleadings delivered, or
other irregularity in making it up, the defendant's
attorney or agent, instead of accepting it, should
take out a judge's summons, and obtain an order
for setting it right, as he cannot otherwise take ad-
vantage of the irregularity, on a motion in arrest of
judgment, or for a new trial.
When the issue is accepted, or the paper-book
returned, the plaintiff should enter it on record,
and proceed to argument, if an issue in law, or to
trial,
g Say. Rep. 77. R. 218.
h 2 Wils. 11. m 6 T. R. 477. R. M. 36
i But see 3 T. R. 137. G. IIL and see I Bos. & Pul.
k Barnes, 263. 275. 2 Blac. 292.
Rep. 1098. "2 Str. 1131. 1266. Say.
» R. H. 35 Geo. III. 6 T. Rep. 154. 3 Bur. 1682.
680 OF MAKING UP, AND
trial, if an issue in fact: And if he neglect to do so,
the defendant may compel him, by obtaining a rule
from the master ", on the back of the issue, entering
it with the clerk of the rules, and serving a copy
on the plaintiff's attorney. But the defendant cannot
give a rule to reply, and enter the issue, in the same
term : And if the action be laid in London or Mid-
dlesex^ the defendant ought not to give a rule for the
plaintiff to enter his issue, the same term it is join-
ed, unless notice of trial has been given: And in a
country cause, the plaintiff is no ways bound to en-
ter his issue, the same term ''.
The plaintiff being ruled to enter the issue, must
enter it, if in London or Middlesex^ and bring the
record into the office, within four days after notice
of the rule: If in (he country, before the continuance-
day of that term: Otherwise, a non pros may be
signed, and the defendant shall have his costs '^ But
a judgment of non pros cannot be regularly signed,
after the issue is entered, though it be not entered
within the time allowed by the rule '. And where it
appeared by affidavit, that the plaintiff's attorney had
mislaid the papers, the court ordered the defendant's
attorney to give him a copy of the issue, the better
to enable him to enter it '.
In
o Append. Chap. XXXI. Ann. (c).
§ 29, 30. r 1 T. R. 16. but see 4 T.
P R. M. 4 Ann. (c). R. \95.semb. contra.
ii Lil. P. R. 87. R. M. 4 si Str, 414.
ENTERING THE ISSUE. 681
In order to enter the issue, a roll must be obtain-
ed, of the term it is joined, from the person ap-
pointed to dehver out the rolls of the court'^ ; which
is called the issue-roW'^. This roll begins with an
entry of the warrants of attorney for the plaintiff and
defendant, which is said to have been introduced by
JVright Chief-Justice, in the reign of. James the
Second''; previous to which time, the warrants of
attorney were entered on a separate roll ". The de-
claration and subsequent pleadings are then entered,
as in the issue or paper- book; and the entry of
them should be made in a full fair hand, with a
margin of an inch at least, and a convenient distance
at the top, for binding up the same ; and at the bot^
torn, that the writing be not rubbed out ''. The
issue being thus entered on the roll, a number should
be got for it, from tlie clerk of the judgments, if it
be an issue of the same term, or otherwise from the
clerk of the treasury; and the roll being numbered,
is carried to and docketed^ with the clerk of the
judgments, who takes for the entries, after which it
\% filed in the treasury of the court.
In
t R. T. 11 8c Geo. II. Salk. 88.
" Append. Chap. XXXI. § " R. H. 1657.
3 1 , &c- y For the form of the dock-
V R. E. 4 Jac. II. et-paper, see Append. Chap.
w 1 Ld. Raym. 509. 2 Ld. XXXI. § 36.
Raym. 895. Carth. 517. 1
Vol. II. D
682 OF MAKING UP, AND
In practice, it is not usual to enter the issue at
full length, if triable by the countr}'^, until after the
trial, unless the plaintiff be ruled to enter it; but
only to make an incipitur on the roll, at the time of
passing the record of Nisi Prius. An incipitur how-
ever is necessary; it being declared, by rule of
court % that no record of Nisi Prius shall be sealed,
or passed at the Nisi Prius office, before the issue
is fairly entered on record, or an incipitur thereof;
and such entry, Avith the record of Nisi Prius, first
brought to be signed by the secondary.
Hitherto we have spoken only of issues made
up and entered by the plaintiff: But in actions
of replevin, prohibition, and quare impedit, wherein
the defendant is considered as an actor, the issue
may be made up and entered by the defendant, as
well as the plaintiff. And there is a rule of court %
that if the plaintiff demur in law to the defendant's
plea, rejoinder or rebutter, and the defendant join
in demurrer, the plaintiff's attorney shall enter the
demurrer of record ; and in default thereof, upon a
rule given by the secondary **, it may be entered of
record by the defendant's attorney. Accordingly,
if the plaintiff demur, or take issue on the defen-
dant's plea, rejoinder or rebutter, and the defen-
dant, in case of a demurrer, join therein, and the
plaintifl"
^ R. M. 5 Ann. reg. I. *> Append. Chap. XXXI
^ R. E. 11 W. III. §30.
s
ENTERING THE ISSUE. 683
plaintiff will not make up the book, and enter it on
record, the defendant may, pursuant to this rule,
make up the book, and deliver it to the plaintiff,
who has a right to enter the issue, at any time be-
fore the expiration of the rule given by the secon-
dary ; which rule ought to be served on the plaintiff,
at the same time the book is delivered to him. If
the plaintiff do not enter the issue, the defendant
may, at the expiration of the rule, and give notice
f)f trial by proviso ".
*■■ R. E. 1 1 W. III. (a).
CHAP,
[ 6S4 ]
CHAPTER XXXII.
Of ARGUING Demurrers.
X^ 711 EN the issue in law, upon a demurrer, has
been entered on record by the plaintiff, or in
his default by the defendant, either party may move
the court for a concilium^ and proceed to argument *.
Where there are several issues, in law and in
fact, there has been great diversity of opinion upon
the question, which of them should be first tried
or determined. According to the earlier authori-
ties, if a man demur to part, and take issue on
other part, or if the declaration be against two de-
fendants, and one demur and the other take issue,
the court shall determine which they please first'';
though it was reckoned the more orderly way to
give judgment first on the demurrer". In another
book it is said, that the issue in fact ought to be
first tried; because if this be found for the plaintiff",
the jury who try it may assess conditional damages,
as to the demurrer '^. But according to the later
cases, where there are several issues, in law and in
fact,
^ R. T. 1 Geo. II. (a). c Co. Lit. 72. a.
f* Co. Lit. 72. a. Gilb. C. "^ Say. Z)aw. 11 5. cites Lutw-
P. 57. 875.
OF ARGUING DEMURRERS. 685
fact, the determination of the issue in law may be ei-
ther before or after the trial of the other, at the elec-
tion of the plaintiff ^ In practice, it is usual and ad-
^'isable to determine the issue in law first, for the fol-
lowing reasons; first, that the determination of an
issue in law is generally more expeditious, and less
expensive, than the trial of an issue in fact: second-
ly, that if the issue in law go to the whole cause of
action, and be determined against the plaintiff, it is
conclusive, and there is no occasion afterwards to try
the issue in fact; whereas, if the issue in fact be first
tried, and found for the plaintiff, he must still pro-
ceed to the determination of the issue in law, and
if that be found against him, he will not be allowed
his costs of the trial of the issue in fact: And
lastly, that whether the demurrer go to the whole or
part of the cause of action, if the plaintiff proceed to
argue it first, and the court are of opinion against
him, he may amend as at common law; but after the
cause has been carried down to trial, he cannot amend
any farther than is allowable by the statutes of amend-
ments.
The concilium^ dies concilii, or day to hear the
counsel of both parties \ was formerly moved for,
upon reading the record in court ^'; but now it is
a motion of course, which only requires a coun-
sel's signature: Still however the record is taken
to
e 2 Lil. p. R. 85, R. E. 23 f R. E. 2 Jac. II.
Car. LB. R. g /f/. 2 I,il. P. R. 421
686 OF ARGUING DEMURRERS.
to the clerk of the papers, who marks it read^ and
signs the initials of his name on the brief or motion-
paper; which being carried to the clerk of the rules,
he draws up the rule thereon, which is a four-day rule,
and then the cause is entered for argument with the
clerk of the papers ''. It is not necessary, though
usual, for the plaintiff to serve the rule for the conci-
lium upon a demurrer, or to give notice of putting it
in the paper; it being in strictness the defendant's
duty to search '. Signing a concilium is considered
as a step in the cause, so as to make it unnecessary
ro give a term's notice K
Previous to the day appointed for argument,
copies of the demurrer- books should be delivered
by the plaintiff or his attorney, on unstamped paper,
to the chief-justice and senior judge, and by the de-
fendant or his attorney, to the two other judges ''; in
which should be inserted the names of the counsel
who signed the pleadings ' : and the exceptions
intended to be insisted upon in argument,
should be marked in the margin "". In causes en-
tered for argument on Tuesday, the books, we
have seen, are to be delivered to the chief-justice,
and the rest of the judges, on the Saturday pre-
ceding;
h R. T. I G. II. (a). 1 R. E. 18 Car. II.
i 2 Str. 1242. -ii R. E. 2 Jac. II. revived
J 3 T. R. 530. by R. H. 38 G. Ill
k R. M. 17 Car. I.
OF ARGUING DEMURRERS. 687
ceding; and in those entered for argument on. Fri-
day , they are to be delivered on the Tuesday preced-
ing ". If either party neglect to deliver the books,
they ought to be delivered by the other ; and the par-
ty neglecting shall not be heard, until he have paid
for them °.
The judgment for the plaintiff, or demurrer to a
plea or replication in abatement, is not final, but only
a respondeas ouster '' : In other cases, it is interlocu-
tory or final, according to the nature of the action: If
the action be for damages in assumpsit^ &:c. it is in-
terlocutory, and should be signed, on treble-penny
stamped paper, with the clerk of the judgments, af-
ter which the damages should be assessed, on a writ
of inquiry 'J, or reference to the master; but in debt,
&c. for a sum certain, the judgment is final, except
where it is necessary to proceed on the statute 8 &.
9 W. III. c. 11. \ 8. ■■; and there being no neces-
sity for a rule for judgment % the plaintiff may imme-
diately tax his costs, and take out execution.
" R. T. 40 G. III. I East, of inquiry, after judgment ou
131. and see R. E. 2 Jac. II. demurrer, it is not competent
(a). Ante., 460. to the defendant to controvert
o R. M. 17 Car. I: any thing but the amount of the
p Gilb. C. P. 53^ 1 Ld. sum in demand. IBos. ScPul.
Raym. 351. Say. Rep. 46. 2 3 68.
Wils. 367. Ante, 588, 9. ' Ante., 508, 9, 10.
<i On the execution of a writ ^ 1 Sfr. 4?^.
CHAP.
[ 688 ]
CHAPTER XXXIII.
Of the Issue, <^«</ Trial by the Record.
npHE issue we are now treating of, arises upon a
plea or replication oinul tiel record. The plea of
nul tiel record is always concluded with an averment,
and prayer of judgment si actio ^ &c. ^; and if it de-
ny the existence of a record of the same court, the
replication thereto may conclude with a prayer that
it he viewed and inspected by the court ^ : but where
the record is of another court, the plaintiff shall have
a day given him to bring it in ".
Where a judgment, or other matter of record, in
the same court is pleaded, and the plaintiff replies nul
tiel record^ the replication may conclude as follows,
*' and this he is ready to verify^ Sec. and because the
" court of our lord the ki?ig now here will admse them-
*' sehes^ upon i?ispection and examination of the record,
" by the said (defendant) abo'ue cdleged, a day is given
" to the parties aforesaid, before our said lord the king
' ' at Westminster, until, &c. '' : " or, instead of replying,
the
^ 2 Wils. 114, 330, 31.'
''Herne,2r8.2Lutw. 1514. d Dyer, 227, 8. 2 Lutw.
Barnes, 336. 1514. 2 Salk. 566. Carth. 517
^ 2 Salk. 566. 3 Blac. Com. 1 Ld. Raym. 550. S. C
OF THE ISSUE, &C. ' 689
the plaintiff may crave oyer of the record, or at least
a note in writing of the term and number-roll, and
if it be not given him in convenient time, he may sign
judgment. This practice was originally confined to
pleas in abatement^; but was afterwards extended
to pleas in bar ^'. and accordingly it is now settled,
that \\ herever a judgment or matter of record in the
same court is pleaded, the party pleading it must, on
demand, give a note in writing of the term and num-
ber-roll, whereon such judgment or matter of record
is entered and filed, or in default thereof, the plea is
not to be received '. Where the record is of another
court, the plaintiff may either conclude his replica-
tion of nul tiel record^ by giving the defendant a day
to bring it in, or with an averment and prayer of the
debt and damages '' : In the former case, the issue is
complete upon the replication '; but in the latter,
there ought to be a rejoinder, that there is such a re-
cord J, &c.
This issue is triable by the record itself, if it be
of the same court; or by the tenor of the record, if
it be of a different court ^. Where the record is
of
e Keilw. 95, 6. Carth. 453. • Cas. Pr. C. P. 56. Pr.
5ir. 1 Ld. Raym. 347. 550. Ret^. 227, 8. Barnes, 16 1. 335,
2 Ld. Raym. 1179. 6. Com. Rep. 533. 2 Bos. 8t
fSStr. 823. Pul. 302.
E R. T. 5 8c 6 Geo. II. {b\ J 1 Ld. Raym. 550.
Ante, 529. k Eui. aV. Pri. 230. GLlb=
h Barnes, 161. 2 Wils. 113. Evid. 26. 2 Bur. 1031.
Vol. II. E
690 or THE ISSUE, ANi)
of the same court, and the plaintiff avers its existence^
notice is given to the defendant's attorney, that he will
produce it on a particular day ; being a general re-
tuni-day, or day certain, according to the nature of
the proceedings : And if he be not then ready, it
seems that he may continue the day for bringing in
the record '. But where the existence of the record is
averred by the defendant, the plaintiff's attorney gives
him a four- day rule to produce it, which he obtains
from the master, on the paper-book ; and having en-
tered it with the clerk of the rules, serves a copy on
the defendant's attorne}'.
On the day appointed for producing the record,
the issue being previously entered, is brought into
court; and proclamation being made by the crier,
for producing the record, it is or is not produced.
If produced, the party producing it is entitled to
judgment, that he hath perfected the record; but
otherwise the judgment is given for the adverse
I)arty, that he hath failed in producing it "". If
the defendant plead in abatement, another action
depending for the same cause, and the plaintiff
afterwards discontinue such action, the issue on
7iul tiel record must be found against him ; because
the plea was true at the time of pleading it: but
jf a recovery be pleaded in bar, and the judgment
afterwards
i Barnes, 85. ™ 3 Salk. 1 5 1 . and see 7 T. R. 447. {d).
TRIAL BY THE RECOilD. 691
afterwards reversed, before the day given to bring in
the record, there, upon mil tiel record, the issue
must be found for the plaintiff; because by the re-
versal, the record is avoided ab initio ".
Where the record is of a different court, the mode
of proceeding for bringing in the tenor of it, is by
certiorari; which, we have seen °, is a writ issuing
sometimes out of Chancery^ and sometimes out of
the King^s Bench. And where nul tiel record is
pleaded, to the record of a superior court, or court
of equal jurisdiction, there is no way to have it, but
by certiorari and mittimus out of Chancer}'-''; for
one court is not bounded by the other, in point of
jurisdiction, nor can they write to each other to cer-
tify their records : But the Chancery may, by its
original constitution, award a certiorari, for bringing
up the tenor of the record of a superior court, and
afterwards send it by mittimus to another; and the cer-
tifying such tenor does not hinder the court where
the record is, from proceeding upon it: And this me-
thod was contrived, to communicate evidence of the
record from one superior court to another, without
the actual removal of the record itself'.
If
n 1 Lord Raym. 274. 2 Ld. p 2 Burr. 1034. and ^ee Cro.
Raym. 1014. 1 Salk. :^29 Car. 297.
S. C. '1 Gilb. Exec. 145. 153.
o Ante, 329. i69. and see Gilb. Evid. 1.1.
692 OF THE ISSUE, hc.
If a recovery in an inferior court be declared on, or
pleaded in a superior one, and denied, the certiorari
may be issued out of the superior court % as well as
from the court of Chancery '. And on this writ,
where the superior court doth not send for the record
of an inferior one, to see whether they keep within
the limits of their jurisdiction, but merely, onnultiel
recordy to know whether there be such a record or
not, it is sufficient to certify the tenor of the record '';
and in Chancery they seldom certify any thing more,
for that court does not in general send for the record
of the inferior one, to bound their jurisdiction, but to
send it to other courts by mittimus '': But where the
record is to be proceeded upon in a superior court,
the record itself must be returned ''.
On a replication oinul tiel record X.o a plea in abate-
ment, the judgment for the plaintiff is not final, but
only a respondeat ouster; for failure of record in this
case is not peremptory ". In other cases, the judg-
ment is interlocutory or final, as upon demurrer;
and if it be final, a rule for judgment must be given,
which expires in four days exclusive, but otherwise
the rule for judgment is not given till the return of
the inquiry ''.
' Cro. Eliz. 821. V 2 Atk. 317. Jnte, 334, 5.
«Gilb. Exec. 148, 9. 170. ^Carth. 517. 1 Ld. Raym.
^ Id. 143. Dyer, 187. 3 550. .^«/f, 5 88, 9. 687.
Salk. 296. 2 Atk. 317, 18. ^ Imp. K. B. 290. Barnes,
" Gilb. Exec. 145. 264.
CHAP--
[ 693 J
CHAPTER XXXIV.
Of Proceedings upon an Issue, triable by the
Country.
"PREVIOUS to the sitting or assizes, at which
the cause is intended to be tried, the plaintiff
should give due notice of trial ; and if he proceed to
trial, without giving such notice, the verdict may be
set aside for irregularity. Every notice of trial ought
to be in writing '; and given to the defendant, if he
appear in person, or odierwise to his attorney or
agent in town, if his place of abode be known ; but
if it be unknown, the notice may be given to the de-
fendant himself: And where the defendant is a
prisoner, notice of trial may be given to the turnkey ",
Upon the delivery of a paper-book, wherein
issue is joined, and notice of trial given, (as it
may be,) on the back of the book, if the special
pleadings be afterwards waived, and the general
issue given, the notice which was given for the
trial of the special issue, shall serve for notice of
trial upon the general issue ^. And so where the
plaintiff, upon any pleading of the defendant,
tenders
a R. M. 4 Ann. (c), c i Str. 248. Antc^ 319.
«» Say. Rep. 13? d R. H. 8 Geo. I. (o).
694 or NOTICE of irial, &c.
tenders an issue, and the paper-book is made up and
delivered with notice of trial, and the defendant
strikes out the similiter, and returns the book with
a demurrer, if judgment be given thereon for the
plaintiff, and a writ of inquiry be necessary to ascer-
tain the damages, the same notice that was given for
the trial of the issue, shall serve for executing the
writ of inquiry ""t but then, the plaintiff ought to
give notice of the hour and place of executing it ^.
Notice of trial may be, and is usually given on the
back of the issue or paper- book; or it may be given
on a separate paper ^. In the former case, it need not
be so particular as in the latter: and therefore, where
the issue was indorsed as follows, " Take notice of
trial at the next assizes," this was held to be a suf-
ficient notice, without any mention of the date,
county, or attorney's name; though it would have
been otherwise, if given on a separate paper ^. Where
there are several defendants, and one of them pleads,
and the other lets judgment go by default, the notice
should express that the issue joined with the former
will be tried, and that the jury will at the same time
assess the damages against the latter '.
If
«■ Same rule, jlnte,, 520. ^ 2 Str. 1237.
i Idem (a). i Append. Chap. XXXIV.
g Append. Chap. XXXIV. § 4.
or NOTICE OF TRIAL, &C. 695
If the venue be laid in London or Middlesex, and
die defendant live within forty compuied ^ miles of
London, there must be eig/it days notice of trial, ex-
clusive of the day it is given, but inclusive of that
on which the trial is to be had; and if the defen-
dant live above forty computed miles from London,
then fourteen days notice must be given ^. In country-
causes, eight days notice of trial seems to have been
formerly sufficient; but now, by statute 14 Geo. IL
c. 17. § 4. " where the defendant resides above for-
" ty miles from town, no cause shall be tried at Nisi
" FriiiSy either at the assizes or sittings in I^ondon
*' or JVestminster, unless notice of trial in writing has
*' been given, at least ten days before such intended
"trial:'* and hence ?(?;/ days notice of trial is re-
quired, in all cases, at the assizes. But as this statute
has no negative words, it is still necessary to give
fourteen days notice of trial, for the sittings in London
or Westminster^ where the defendant lives above for-
ty computed miles from London. And where a de-
fendant, residing in town at the issuing of the
writ, changes his residence permanently to the
country, at the distance of above forty miles
from town, before the delivery of the issue, he is
entitled to fourteen days notice of trial '. If there
be several defendants, and one of them reside
within
) 2 Str. 954. 1216. » 1 East, 688.
k R. M. 4 Ann. fey
696 01- NOTICE OF TRIAL, &C.
within forty miles of London, so long a notice is said
not to be necessary '". The venue was laid in Lon-
don, and the defendant residing m India, a verdict for
the plaintiff was set aside, because only eight days
notice of trial had been given '.
Upon an old issue, or in other words, where there
have been no proceedings for four terms exclusive
after issue joined, a term's notice is requisite °; which
notice must be given before the essoign-day ot the
fifth, or other subsequent term ^ : And a judge's sum-
mons, if no order has been made upon it, is not a
proceeding within the meaning of this rule ; nor the
suing out of a 'uenire facias or distringas, in the va-
cation of the fourth term, though it be tested and en-
tered as of that term "^ : But a notice of trial, though
countermanded, or notice that the plaintiff will pro-
ceed in the cause, which has not been acted under,
is such a proceeding, as will prevent the necessity of
giving a term's notice \ The rule requiring a term's
notice does not extend to a motion for judgment as in
case of a nonsuit ' ; and being confined to voluntary de-
lays, it does not apply, where the cause has been stay-
ed by injunction or privilege , or where there has been
an agreement to stay proceedings for a limited time,
to
^ Per Ashburst, Just. 4 T. Pi Str. 211. 2 Str. 1164.
R. 520. q 2 Salk. 457. 650.
■1 4 T. R. 552. r 1 Str. 531. 3 East, 1.
o 2 Salk. 645. 650. R. s 5 T. R. 634.
M.4 Ann. (r); and see Ap- ^ 1 Sid. 92. R. M. 4 Ann.
pend. Chap. XXXIV. § 6, (c). Doug. 71.
OF NOTICE OF TRIAL, &C. 697
to enable the defendant to pay the debt, in default
of which the plaintiff is to be at liberty to proceed ".
Short notice of trial, in country causes, must be
given four days at least before the commission- day,
one exclusive and the other inclusive^: In town
causes, two days notice seems to be sufficient"''; but
it is usual to give as much more, as the time will
admit of. And Sunday is to be accounted a day in
these notices, unless it be the day on which the
notice is given''.
If the plaintiflp be not ready to proceed to trial,
pursuant to notice, he may countermand or in some
cases continue it. Notice of countermand, like notice
of trial, ought to be in writing ^^ and may be given
to the attorney in the country, as well as the agent
in town ^ Before the statute 14 Geo. II. c. 17. two
days notice of countermand appears to have been
sufficient in all cases, unless it was for a trial at the
assizes, and the countermand was given to the agent
in town; in which case it was required to be given,
four days before the commission-day '. But now,
by that statute, ^ 5. the countermand of notice
of
" 2 Bur. 650. 2 Blac. Rep. y Id. ibid.
762. 784. ^ 2 Str. 1073. ; and see Ap-
y R. E. 30 Geo. III. 3 T. pend. Chap. XXXIV. § 8.
R. 660. a R. M. 4 Ann. (c). 2 S*-.
« Pr. Reg. 390. 849. 1073.
" R. M. 4 Ann. (c).
Vol. \}. F
698 OF NOTICE OF TRIAL, &C.
of trial at the assizes, or in a town-cause where the
defendant lives above forty miles from London^
must be given six days at least before the intended
trial: In other cases, Hvo days notice of counter-
mand is still sufficient, the day of countermand be-
ing one, exclusive of the commission-day, or day of
sittings.
If the plaintiff give notice of trial, and proceed not
accordingly, he cannot in general take the cause
down to trial again, without new notice, to be given
as before, unless by consent or rule of court ''. But if
notice of trial be given for a day certain in London
or Middlesex.^ and the plaintiff be not ready to pro-
ceed, the cause may be tried at the next sitting, upon
giving two days previous notice, one inclusive and
the other exclusive ; which is called a notice of trial
by continuance ". So, if the defendant enter a ne red-
piatur, and by that means hinder the plaintiff from
trying his cause at one sitting, the plaintiff may pro-
ceed to trial at the next, upon notice given before
the rising of the court at the first sitting ^. But the
plaintiff cannot continue his notice of trial, more
than once in a term ^ And in either of the before-
mentioned cases, if the cause be not tried at ,such
next
b R. M. 1654. § 18. d R. M. 4 Ann. 2 Salk.
c Append. Chap. XXXIV. 653.
§ 7. ^2 Su-. 1119.
OF NOTICE OF TRIAL, &C. 699
next sitting, notice is to be given as at first, unless
it be made a remanet ^, and then new notice of trial
is never given, for the defendant is bound to attend
till the cause be tried ^. But if the trial be put off by-
rule of court, there must be a fresh notice of trial '' :
and even when the plaintiff gives a peremptory un-
dertaking, to try at the next sittings or assizes, there
also a new notice of trial must be given ; because
notwithstanding such undertaking, the plaintiff" may
decline trying his cause '.
If the plaintiff do not proceed to trial pursuant
to notice, or countermand it in time, the defen-
dant, on a proper affidavit J, shall be allowed his
costs of the day ^ ; and if they are not paid, may
on an affidavit of demand and refusal ', have an
attachment: or, after the issue is entered, he may
proceed to trial by proviso^ as at common law,
or move the court for judgment as in case of a
nonsuit, upon the statute 14 Geo. II. c. 17. But
the defendant cannot move for judgment as in
case of a nonsuit, and costs for not proceed-
ing
f When a cause is made a ' Id. ibid. Monk v. Wade, T.
remanet, the costs of the first 29 G. III. K. B-
sittings or assizes abide the J Append. Chap. XXXIV.
event of the trial. Say. Rep. §9, 10.
272. 4 Bur. 1988. k r. ;m. 1554. § 18. R. M.
K R. M- 4 Ann. (c). 8 T. 4 Ann. (c).
R. 245, 6. 1 Append. Chap. XXXIV.
fc ST. R. 245, 6. § 11.
700 or TRIAL BY PROVISO.
ing to trial, at the same time""; though he may
move for either of them separately, and it is indif-
ferent which is first moved for. In practice, it is
usual for the defendant to move for judgment as in
a case of nonsuit; and then if the court, on shewing
the cause against the rule, grant further time to the
plaintiff, it is always on the condition of his paying
costs for not proceeding to trial.
The trial by proviso is so called, from a clause
in the distringas^ which provides, that if two writs
come to the sheriff, he shall only execute and re-
turn one of them ". And if both the plaintiff and
defendant happen to carry down the record, at the
same time, the trial shall be by the plaintiff's re-
cord, if he enter it with the marshal; but if he do
not enter it, the defendant may proceed on his re-
cord ®. This trial cannot be had in civil actions,
till there has been some laches or default in the
plaintiff, in not proceeding to ti'ial, after issue
joined; except in cases where the defendant is con-
sidered as an actor, as in replevin^ prohibition^ and
quare imp edit y which are to have a return, con-
sult"t!on, and writ to the bishop p. In criminal
cases, the defendant is never allowed to carry down
the
» Earl of Leicester \. Wood, ° R. M. 4 Ann. (c).
en^M. 21 Geo. II. p 2 Salk. 652. R. M. 4
" 2 Lil. P. R. 612. 617. 2 Ann. (c); but see 4 T, R.
East, 206. (g). 757.
OF TRIAL BY PROVISO. 701
the record to trial by promso; because no laches can
be imputed to the king '. But in indictments of trea-
son or felony, if the attorney-general will delay, the
court may give the defendant leave to bring on the
trial, as they see fit '^ : So in indictments for misde-
meanors, the defendant may, in the first instance,
by the consent of the prosecutor, and leave of the
attorney-general, carry down the cause to trial; but
it shall not be allowed by surprise on the attorney-
general, nor without consent of the prosecutor, or
some default in him \ And it is a rule, that when
an indictment is removed hither by the prosecutor,
the defendant shall not carry it down to trial, with-
out leave of the court on motion '.
Before the defendant can have a trial by promso^
the issue must be entered on record; and therefore,
unless this be done, the defendant must obtain a
rule from the master, and enter it with the clerk of
the rules, for the plaintiff to enter the issue ; and if
it be not entered, he may sign a non-pros ' : If it
be, and the plaintiff has been guilty of laches, the
defendant should procure from the master, and
enter with the clerk of the rules, a rule for a trial
by proviso " ; which he may do, after he has given
notice
q 2 Salk. 652. 6 Mod. 247. t 2 Lil. P. R. 84. 87. 612.
Willes, 535. 7 T. R. 661. 2 615. 617. 3 Salk. 362, 3. R.
East, 202. M. 4 Ann. (c).
^ 2 Salk. 652. a 2 Str. 1055. Append.
»/rf. 653. Chap. XXXIV. § 12.
702 GF JUDGMENT
notice of trial "", Of a trial by proviso, the defendant
must give the like notice to the plaintiff, as the
plaintiff would have been obliged to give to him ""' :
and if he do not proceed to trial according to notice,
or countermand it in time, the plaintiff shall have
his costs ''.
The delay and expence attending the trial by pro-
mso, gave rise to the statute 14 Geo. II. c. 17. by
which it is enacted, *' that where any issue is or
*' shall be joined, in any action or suit at law,
" in any of his majesty's courts of record at fVest-
*' m'uister, &c. and the plaintiff or plaintiffs in any
" such action or suit hath or have neglected, or
" shall neglect, to bring such issue on to be tried,
" according to the course and practice of the said
"^ courts respectmely^ it shall and may be lawful for
*' the judge or judges of the said courts respective-
*My, at any time after such neglect, upon motion
'"'■ made in open court, (due notice having been
*' given thereof,) to give the like judgment for the
" defendant or defendants in every such action or
*' suit, as in cases of nonsuit; unless the said judge
*' or judges shall, upon just cause, and reasonable
'^' terms, allow any further time for the trial of such
*' issue: And if the plaintiff or plaintiffs shall ne-
*' gleet to try such issue, within the time so allowed,
" then
V 1 T. R. 695. X R. M. 4 Ann. (c). 2 Str.
w R. M. 1651, 797.
AS IN CASE OF A NONSUIT. 703
■** then and in every such case, the said judge or
''judges shall proceed to give such judgment as
*' aforesaid. Provided always, That all judgments,
" given by virtue of this act, shall be of the like force
** and effect as judgments upon nonsuit, and of no
" other force or effect: Provided also, That the de-
" fendant or defendants shall, upon such judgment,
*' be awarded his, her or their costs, in any action or
" suit, where he, she or they would upon nonsuit he
" entitled to the same, and in no other action or suit
" whatsoever."
This statute has been held to extend to actions
brought by executors or administrators ^, and to qui
tarn actions % as well as others ; and also to the tra-
verse of the return of a mandamus ^ : but it does not
extend to actions of repleiiin ^, &c, in which the
defendant is considered as an actor, and may there-
fore' enter the issue, and carry down the cause to
trial himself: and where there are two defendants,
one of whom lets judgment go by default, the
other cannot have judgment as in case of a non-
suit ^ Also, where the cause has been once car-
ried
y Willes, 316, Barnes, 130. 317.
S. C. but without costs. Id. <= Say. Rep. 22. Say. Costs,
I 1 Wils. 325. Barnes, 315. 163. 1 Wils. 325. S. C. Say.
1 East, 554. Rep. 103. Say. Costs, 164. S.
a Say. Rep. 1 10. Say. Costs, C. 1 Bur. 358. Say. Costs,
166. S.C.4 T. R. 689. 168. S. C. Cowp, 483. 3 T.
*> 1 Blac. Rep. 375. Say. R. 662. Gosse v. J/acaw/rt/ and
Costs, 168. S. C. 3 T. R. 662. others, T. 42 Geo. III.
5 T. R. 400. but see Barnes,
704 OF JUDGMENT
ried down to trial, the defendant cannot have such
judgment, for not carrying it down again ^.
The course and practice of the court, referred to
by the statute, is that which before regulated the
trial by promso; and as the defendant could not have
had such trial, until the plaintiff had been guilty of
laches ^, nor until after the issue was entered on re-
cord, so neither till then, is he entitled to judgment
as in case of a nonsuit. We have seen ^, that if the
action be laid in London or Middlesex, the defendant
ought not to give a rule for the plaintiff to enter his
issue, the same term in which it is joined, unless no-
tice of trial hath been given ^ : And accordingly it is
held, that in a town cause, unless notice of trial has
been given, the defendant cannot move for judgment
as in c^se of a nonsuit, the next term after that in
which issue was joined, although it was joined early
enough, to enable the plaintiff to give notice of trial for
the sittings after that term ^ ; the plaintiff, in such case,
having the whole of the next term to enter the
issue, and no laches can be imputed to him till
the
d 1 T. R. 492. 3 T. R. 1. g But the defendant may
1 H. Blac. 101. rule the plaintiff to enter the
e For the time within which issue, and move for judgment
issues must have beew former- as in case of a nonsuit, the
ly tried, see R. H. 15, 16 Car. same term. 1 Bos. & Pul. 387.
II. Reg. 2. R. II. 20, 21 Car. ^ 4 t. R. 557. 1 H. Blac.
II. 65. contra; and see 1 H. Blac,
'■Jnie. 680. 123. 282.
AS IN CASE OF A NONSUIT. 70.5
the term after K But if notice of trial has been given,
in a town cause, for a sitting in or after term, the de-
fendant may move for judgment as in case of a non-
suit tlie next term, being the term after that in which
the issue ought to have been entered ^. To support
a rule for judgment as in case of a nonsuit, in the
next term after that in which the issue was joined,
the affidavit must state that notice of trial was given
for a sitting in or after the preceding term • ; but in
the third or other subsequent term, a general affida-
vit, stating the term when the issue was joined, is
deemed sufficient "". In a country cause, where notice
of trial is given to the assizes, the defendant may
move for judgment as in case of a nonsuit, the next
term : but the plaintiff is not bound to give notice of
trial, till the term succeeding that in which issue
was joined " ; and if he do not, the defendant cannot
move for judgment as in case of a nonsuit, till after
the next assizes. Where the plaintiff withdraws his
record, after entering it for trial, the defendant may
have judgment as in case of a nonsuit °.
The
' Issue was joined in Easter gerald v. Smith, T. 36 G. III.
term, and notice of trial ^ Harman v, Gilbert, M.
given for the first sittings in 36 Geo. III. C. B.
Trinity; and the plaintiff ' Append. Chap. XXXIV.
having contiimed it till tlie § 14.
sittings after that term, the '" Id. ibid. 1 H. Blac. 282
defendant in the same term, "2 T. R. 734.
moved for judgment as in » Read v. Stone, E. 36 G-
case of a nonsuit, which was III. 1 East, 346.
refused by the court. Fitz-
Vol. II. G
706 OF JUDGMENT
The rule for judgment as in case of a nonsuit ^ is
a rule to shew cause, founded on an affidavit of the
state of the proceedings, and of the plaintiff's default
in not proceeding to trial ; which rule has been held
to be sufficient notice of motion within the act "^ : and
the roll must be in court, at the time the motion is
made. This rule is made absolute of course, on an
affidavit of service, unless the plaintiff shew a good
cause for not proceeding to trial, as the absence of a
material ^vitness, &:c. but a slight cause is in general
deemed sufficient, even in a qui tarn action \ if the
plaintiff will wnd^rtakt peremptorily to try at the next
sittings or assizes. The plaintiff having become
insolvent after issue joined, this was allowed as
good cause against judgment as in case of a non-
suit; and the court would not bind him down to
a peremptory undertaking, it being alleged, that
his creditors were about to decide, whether they
would prosecute or abandon the cause \ So the
insolvency of the defendant ^ after the action brought,
is good cause against judgment as in case of a
nonsuit*; but unless the plaintiff will consent to
stay all further proceedings, and to enter a cesset
processus^
p Append. Chap. XXXIV. XXXIV. § 13.
§15. r7 T. R. 178. I East, 554.
q Lofft, 265. 1 H. Blac. s Fisher v. Hancocky H. 36
527. C. P. contra. And for Geo.III.
the form of the notice of *■ Doug. 671.
motioA, see Append. Chap.
AS IN CASE OF A NONSUIT. 707
processus^ the court will bind him down to a peremp-
tory undertaking. The plaintiff in a qui tarn action on
the statute 7 Geo. II. c. 8. withdrew his record, be-
cause the broker who negotiated the illegal bargain for
stock, refused to give evidence, least he should sub-
ject himself to a penalty on the same statute ; and the
court held this a sufficient reason to discharge a rule
for judgment as in case of a nonsuit, for not proceed-
ing to trial; although the witness's liability to be su-
ed would not be removed, till after the end of three
succeeding terms ^ Where the rule to shew cause
was discharged, on an affidavit which contained an
answer false in itself, the court would not afterwards
open the matter, on an affidavit which disproved the
contents of the former one ' .
If the rule be made absolute, the defendant
having drawn it up with the clerk of the rules, and
got it stamped with a double half-crown stamp,
may sign judgment as in case of a nonsuit, and tax
his costs, &:c. But if further time be given, on a
peremptory undertaking, the plaintiff must draw
up the rule, and serve a copy of it on the defend-
ant's attorney; after which, if he do not proceed
to trial pursuant to his undertaking, the defend-
ant, having obtained an office-copy of the rule,
should move the court for judgment, on an affida-
vit
■i 7 T. R. 178 V 3T. R 405.
708 OF PUTTING OFT THE TRIAL.
vit of the circumstances ^. And a mistake in the de-
claration is not a good excuse for not proceeding to
trial, pursuant to an undertaking ''. The statute only
gives costs to the defendant, where he would have
been entitled to them upon a nonsuit : And therefore
the tenant is not entitled to costs, in a writ of right 5";
nor are they allowed as against an executor, who
merely sues en miter droit ^.
If the defendant be unable to proceed to trial, on
account of the absence of a material witness, he may
move the court in term-time, or apply to a judge in
vacation, on an affidavit of the facts, to put it off till
the next term \ The application for this purpose
should in general be made two days at least before
the day of trial '', if the necessity for it was at that
time known to the defendant ; if not, it may be made
afterwards, even when the cause is called on at nisi
prius ". In that case however, notice should first be
given, with a copy of the affidavit to be produced ^.
In other cases also, it is usual, though not necessary,
to
* Append, Chap. XXXIV. as mentioned above: But
§ 16. where there is no probabiHty
^ Say. Rep. 74. Say. Costs, of the defendant's being pre-
166. S. C. pared to try till a more dis-
y 2 Blac. Rep. 1093. tant time, he may apply to
z 4 Bur. 1928. Willes, 316. put off the trial till that time.
Barnes, 130, S. C. 2 H. i^ Barnes, 437.
Biac. 277. c Peak, Cas. M. Pri. 97.
*Itis usual to put off the <^ Cas. tern/}. Hardw. 128.
trial only till the next term,
i
OF PUTTING OFF THE TRIAL. 709
to give previous notice of the intended motion *". The
affidavit should regularly be made by the defendant
himself *^, unless he be abroad, or out of the way; in
which case it may be made by his attorney ^, or a third
person : and it in general states, that the person ab-
sent is a material witness, without whose testimony
the defendant cannot safely proceed to trial ; that he
has endeavoured, withouteffect, to get him subpoenaed,
but that he is in hopes of procuring his future attend-
ance ''. An affidavit in the common form is sufficient,
^where no cause of suspicion appears; and it is not ne-
cessary to swear to merits in such cases ': But if there
be any cause of suspicion, the court should be satis-
fied from circumstances, first, that the person absent
is a material witness ; secondly, that the party apply,
ing has not been guilty of any laches or neglect; and
thirdly, that he is in reasonable expectation of being
able to procure his attendance, at the time to which
the trial is prayed to be deferred ''.
There
«■ Append. Chap. XXXIV. state particularly in his affida-
§ 17, vit, in what respect his evi-
f Barnes, 437. dence is material. Corbin v.
g Peakc, Cas. JVi. Pri. 97. Dawson, E. 36 Geo. III. C.B.
^ Append. Chap. XXXIV. ^ Duncan v. Thomasin, IM.
§ 18. In the common pleas, if 38 Geo. III.
the ground of the application ^ 3 Bur. 15 Ik 1 Blac. Rep.
be the absence of a material 514. S. C. and see 1 Blac.
witness, the defendant must Rep. 436.
710 OF PUTTING OFF THE TRIAL.
There are other causes for putting off the trial;
such as the iUness of the defendant's attorney *, or on
account of a paper published with intent to influence
the jury •", &c. : And when any of these occur, the
affidavit should be framed accordingly. But the court
will not put off a trial, pending a suit relating to the
same matter, in a spiritual court " : And in an action
on a penal statute, they will not put it off, in favour of
the plaintiffs upon the absence of a material witness °.
' Say. Rep. 63. common pleas, the court would
^ 1 Bur. 512. 4 T. R. 285. not put off the trial, on ac-
" 2 Salk. 646. 649. count of the absence of a raa-
" Per Lord Kenyan, as for- terial witness, by whose evi-
merly ruled by Lord Mans- dence the defence of slavery
field, in a Chester case; M. was intended to be established.
;^8 Geo. III. And in the ! Bos. & Pul. 454.
CHAP-
[ 711 3
CHAPTER XXXV.
6yM(? Record o/T^isi Prius, Jury, Evidence,
and Witnesses.
TT AVING, in the preceding chapter, shewn what
is to be done, where the parties are not ready
or willing to proceed to trial ; I shall next consider,
when they are, the preparatory steps to be taken,
with regard to the record of nisi prius ^ jury, evidence ,
and witnesses.
The record of nisi prius, which is supposed to be
transcribed from the issue- roll, contains an entry of
the declaration and pleadings, and the issue or issues
joined thereon, with the award of the venire facias,
as in the issue or paper-book ; and is in nature of a
commission to the judges at nisi prius, for the trial
of the cause ^. It begins with the placita, or style of
the court, of the term issue was joined ; and after the
award of the venire facias, there is a second placita ^
of the term in or after which the cause is tried; and
the record then concludes with an entry, called the
jurata, as follows:
to
» Append. Chap. XXXV. in the Common Pleas, where
§ 1 . the parties do not go to trial,
^ For the reason of a se- the same term issue is joined,
cond t^latita in the King's- see Gilb. C. P. 80, 81. 1
Bench, and why jt is omitted Cromp. 234,
or THE llE<iORD
■ to wit. The jury betwee?i A. B. by his attorney
plaintiff, and CD. defendant, of a plea of ^c. (ac-
cording to the nature of the action,) is respited before
our lord the king at fFestminster, (or, by original,
wheresoever, &c.) until (the return of .the dis-
tringas,) unless the king''s right trusty and well-beloved
Edward Lord Ellenborough, his majesty'' s chief -jus-
tice, assigned to hold pleas before the king himself, (if
in London or Middlesex; or, if at the assizes, unless
his majesty'' s justices assigiied to take the assizes, in
and for the county of ,) shall first come on (the
day of trial,) at the Guildhall in the said city, (if in
London; or if in Middlesex, at Westminster-hall, or,
if at the assizes, at the place of trial, in the said coun-
ty) according to the form of the statute in such case
made and provided, for default of the jurors, because
none of them did appear: Therefore let the sheriff
have the bodies of the said jurors, to make the said ju-
ry, between the parties aforesaid, of the plea aforesaid,
accordifigly; the same day is given to the parties afore-
said, at the same place.
At the assizes, the jurata concludes with what is
called the sciendum, as follows : And be it kfiown, that
the king''s writ on record was delivered to the deputy
sheriff of the said county, on the day of
in the same term, (the last day of term preced-
ing die trial,) before our lord the king at Westminster ,
to be executed according to law, at his peril.
The
OF NISI PRIUS. 713
The record of nisi prius was formerly made out;
by the clerks of the chief-clerk "; but it is now done
by the attomies, and is to be fairly engrossed, on a
press or skin of parchment, stamped with a double
half-crown stamp ''. The record being engrossed, is
carried to the nisi prius office, where it is sealed and
passed; for which is paid seven shiUings and six-
pence for the first eight sheets, seven shillings for
every eight sheets after, and sixpence to the sealer ^.
In London and Middlesex^ all records of nisi prius
are to be sealed, on or before the respective days ap-
pointed by the lord chief-justice, in the sittings-
paper, for their trial ^ And there is an old rule of
court, that no record of nisi prius ^ for the trial of an
issue at the assizes, shall be sealed after the end of
three weeks next after the end of the term ^ : But by
obtaining a judge's order, for which the clerk is paid
two shillings, and which he will procure at his
leisure, the record may now be sealed at any time
before the assizes'". In causes which stand over
from one sitting to another, the records should be
regularly resealed, previous to the sitting to which
they
'^ R. T. 1 Jac. II. R. M. former rules of T. 15 Car. II.
5 Ann. reg. 1. reg. 2. R. H. 15 & 16 Car.
JR. M. 5 Ann. reg. 1. (A). II. reg. 2. R. H. 20 & 2 1
e Same rule, (c). Car. II.
iR. E.7 Geo. I. ^rt. 31 Car. II. (a)
K R. T. 31 Car. II. anU see
Vol II. H
714 OF THE JURY-PROCESS.
they stand over; or in default thereof, the causes
cannot be tried '.
If the issue has not been previously entered of re-
cord, it must be so entered, or at least an mcipitur
made, before the passing of the record of nisi prius:
For it is a rule of court, that no record of nisi
prius shall be sealed, or passed at the nisi prius
office, by the custos brei}ium, or any clerk of that
office, before the issue in that cause be fairly entered
on record, or an incipitur thereof, and such entry,
with the record of nisi prius ^ be first brought to and
signed by the secondary ; for which no fee shall be
demanded or paid, but the usual and accustomed fee,
due to the chief clerk, for entry of such issue on re-
cord ^. In practice it is usual, when the record has
not been previously entered, to make an incipitur on
a roll of the term issue was joined, and to take the
roll, record of nisi prius^ and draft of the issue, to the
clerk of the judgments, who enters the issue, and
marks the roll, record and issue-paper, taking three
shillings and sixpence for the first ten sheets, and one
''shilling for every six more.
The first process for convening the jury^ is a
Deriire facias, which is a judicial writ, commanding
the sheriff, or other officer to whom it is directed,
to
i R. E. 33 G. III. E. 1657. and T. 1 Jac. II
k R. M. 5 Ann. reg. 1. See ante, 682,
also the rules of 11. 1649,
OF THE JU»Y-PROCESS.
715
to cause to come before the king at Westmi?ister^ (by
<^///, or by o/7^?«<^/ wheresoever, &c.) on a certam
day therein mentioned, twelve free and lawful men
of the body of the county ^, each of whom has ten
pounds a year of lands, tenements, or rents, at the
least ", by whom the truth of the matter may be the
better known, and who are in no wise of kin either
to the plaintiff or to the defendant, to make a jury of
the country between the parties in the action, be-
cause as well the plaintiff as the defendant, between
whom the matter in variance is, have put themsehes
upon that jury; and that he return the names of the
jurors", &c.
By the statute JVestm. 2. (13 Ediu. I.) c. 30. the
clause of nisi prius was directed to be inserted in the
venire facias ; and at first, the trial was had upon
that
1 Stat. 4 Ann. c. 16. § 6.
and see the 24 Geo. II. c. 18.
Willes, 597. 1 Wils. 125. S. C.
"» Stat. 4 8c 5 W. & M. c.
24. § 15. and by the 3 G. II.
c. 25. § 18. any leaseholder,
for the term of 500 years ab-
solute, or for any term deter-
minable upon life or lives, of
an estate in possession in his
own right, of the clear yearly
value of twenty pounds or up-
wards, over and above the
rent reserved, is qualified to
serve upon juries ; and in
Londoriy any person is qua-
lified, who is a householder
within the city, and has lands,
tenements, or personal estate,
to the value of one fnmdred
pounds. Stat. ult. § 19. Also,
by the 4 Geo. II. c. 7. §2. none
shall be returned to serve on
juries in Aliddlesexy who have
served within the two last
terms: and by § o. leaseholders
foi" any term, where the im-
proved rents amount to 50/.
/2er annum, are liable to serve
on juries in Middlesex.
" Append. Chap. XXXV.
§2, 8cc.
716 OF THE JURY-PIIOCESS.
that writ °, as it still is, in the case of a trial at bar.
This practice was attended with many inconvenient
cies : for in the first place, the jury were not obliged to
attend, under any penalty, on the day of nisi prius;
and ifthey did attend, the defendant might have cast
an essoig/i, and so the jury, after much expence and
trouble, were obliged to return, leaving the cause
untried p. Another inconvenience was, tliat the par-
ties, not seeing the panel beforehand, could not be
prepared to make their challenges '^. To obviate this
latter inconvenience, it was enacted, by the statute
42 Ediv. III. c. 11. that *' no inquests, except of
" assize and gaol- deli very, shall be taken by writ of
*' nisi pri'us, or otherwise, at the suit of any one,
*' before the names of all them that shall pass in the
*' inquests, shall be returned in court." From
thenceforward, the clause of nisi priiis could not be
inserted in the 'uenire facias^ as was directed by the
statute Westm.. 2. ; and therefore it was take.n out of
that writ, and placed in the distringas % as the prac-
tice continues to this day. The iienire too was made
returnable on a day before the trial, by which means
they got rid of the essoign at nisi prius: for by the
statute of Marlbridge, (52 Hen. III.) c. 13. " after
*' a man hath put himself upon any inquest, he shall
" have
o Gilb. C.P. 74. 2 Salk. 454. P Id. 76. 7.
2 Ld. Raym. 1143. S. C. ^ /^. 77. 2 Salk. 454. 2 Ld
P Gilb. C. P. 74, 5. 78. Raym. 1 143. S. C.
OF THE JURY-PROCESS. 717
*' have but one essoign, or one default;" and by the
statute Westm. 2. (13 Edw. I.) c. 27. the essoign
shall be allowed him at the next day, which is the
day of the return of the venire '. And though the de-
fendant never appears now, upon the return of the
"venire, yet heretofore he was demanded solemnly;
and if he made default, there went out a distringas
against the jury, with a clause in it to distrain the
defendant: And if after this, he made default again,
it was peremptory, because there was no process left
to bring him in ^ If a -venire be awarded, and the
parties do not go to trial for several terms, a new
i)e?iire is awarded from term to term, and the cause
continued by vicecomes non misit breiie"'-, but the
venire never in fact issues, till the term when the
cause is tried.
The distringas, upon which the trial is had, is a
judicial writ, commanding the sheriff, or other officer
to whom it is directed, to distrain the jurors, by all
their lands and chattels, &c. so that he may have
their bodies before the king at IVestniinster, or (by
original) wheresoever, &c. on [the first return-day
in term, after the trial], or before the chief-justice,
or
•^ Gilb. C. P. 74, 5. 77, 8. 925. S, C. •
iSalk. 216. 2 Ld.Raym.925. " Gilb. C. P. 83. and sec
S.C. 2 Salk. 454. 2 Ld. Raym. Append. Chap. XXXI. § 32,
1143.S. C. 34.
^ 1 Salk. 216. 2 Ld. Raym. .
718 or THE JUKY-PROCESS.
or judges of assize, if they shall first come on [the
day of trial"), at [the place where the cause is intend-
ed to be tried], to make a certain jury between the
said parties, of a plea of, &c. (according to the
nature of the action,) and to hear thereof their judg-
meat of many defaults ^', &c.
After a distringas had issued, with a clause of nisi
pi'ius, if the cause stood over, for default of jurors,
till a subsequent term, the plaintiff at common law
could not have had a 'venire de novo^, unless for some
fault in executing or returning the distringas "" ; but
he must have sued out an alias or pluries distringas,
for bringing in the same jury. And still, if after a
special jury has been struck, the cause goes off for
default of jurors, no new jury can be struck; but the
cause must be tried by the jury first appointed ^.
And the same jury shall serve for the trial of the
cause, notwithstanding an intermediate change of
sheriffs ^
But with regard to common juries, it is enacted,
by the statute' 7 & 8 /F". III. c. 32. \ I. '' that if
*^ any plaintiff or demandant, in any cause depend-
" ing in any of the courts at Westminster, which
*' shall be at issue, shall sue forth, or bring to any
" sheriff, any writ of 'oenire facias, upon which any
*' writ
••- Append. Chap. XXXV. ^ Id. 92, 5 T. R. 464.
§ 6. y 5 T. R. 453.
^' Gilb. C. P. S3. ■ z Cowp. 412.
I
OF THE JURY-PROCESS. 719
-*' writ of habeas corpora or distringas^ with a nisi
*' priuSj shall issue, in order to the trial of such issue
" at the assizes, and such plaintiff or demandant shall
" not proceed to the trial of the said issue, at the said
" first assizes after the teste of every such writ of
" habeas corpora or distringas y \v'i\h a 7iisi priuSs
" that then and in all such cases, (other than where
" iiieivs by jurors shall be directed '^,) the plaintiff or
" demandant, whensoever he shall think fit to try the
'* said issue at any other assizes, shall sue forth and
" prosecute a new writ of 'venire facias, directed to
*' the sheriff, in this form: That you cause to come
" anew ^, before, &:c. twelve free and lawful men of
*' the neighbourhood of j1. [now, of the body of your
*' county,] each of whom has ten pounds a year, of
" lands, tenements or rents, at the least, by whom,
" &c. and who neither, &c. and the residue of the
*' said writ shall be after the ancient manner; which
" writ being duly returned and filed, a writ of habeas
*' corpora or distringas, with a nisi prius, shall issue
" thereupon, (for whicli the ancient and accustomed
" fees shall be taken, and no more, as in the case of
" the pluries habeas corpora or distringas, with a nisi
" prius,) upon which the plaintiff or demandant shall
" and may proceed to trial, as if no former writ of
'venire
^ Com. Rep. 248. »> Append. Chap. XXXV. § 5.
720 OF THE JURY-PROCESS.
" "venire facias had been prosecuted or filed in that
" cause, and so tones quot'ies as the case shall require.
'' And if any defendant or tenant, in any action de-
'' pending in any of the said courts, shall be minded
" to bring to trial any issue joined against him, when
" by the course in any of the said courts, he may
" lawfully do the same by proviso^ such defendant or
' ' tenant shall or may, of the issuable term next pre-
" ceding such intended trial, to be had at the ne:^t
*' assizes, sue out a new ijemre facias to the sheriff,
'' in form aforesaid, by proi^iso; and prosecute the
'^ same by writ o^ habeas corpora or distringas^ with
" a nisi prius^ as though there had not been any for-
*' mer 'uenire facias sued out or returned in that
" cause, and so toties quoties as the matter shall re-
" quire."
Tlie "uenire and distringas are directed, according
to the award of these writs % to the sheriff of the
county in which the action is laid, or of an adjoin-
ing county: but where the sheriff is a party, or
interested in the cause, they are directed to the
coroner^; or if there are two sheriffs, and one of
them is interested, to the other: and if the coro-
ner, as well as the sheriff, is interested, the 'venire
and distringas are directed to elisors ". In a county-
palatincy the record is sent by mittimus to the
justices
«: Ante, 672.
-OF THE JURY-PROCESS. 721
justices there, commanding them to issue the jury-
process, and when the cause is tried, to send the
record back again to the court above '^.
In point of form, the venire and distringas are
general, or special. Where only one issue is to be
tried, or there are several issues of the same nature,
the venire and distringas are general, to make a jury
of the countr}'', between the parties, of the plea or
action, whatever it may be: But where there are
several issues, in fact and in law, or several defen-
dants, and some of them plead and others let judg-
ment go by default, the writs are special, as well to
try the issues in fact, as to assess the damages upon
the issues in law, or against the defendants who let
judgment go by default. If the defendant carry
down the cause by proviso, the following clause is
inserted in the distringas: Provided always, that if
two writs shall come to the sheriff, he shall only exe-
cute and 7-etur?i one of them ^
The venire facias is tested on the first day of the
term, in or after which the cause is to be tried;
and is made returnable on some day before the trial,
being a general return-day, or day certain, accord-
ing to the previous proceedings ^ : If in a country
cause,
d Jnte, 672, 3, and see Ap- Ent. 676. and see Append,
pend. Chap. XXXV. § 12, Sec. Chap. XXXV. § 7.
e 2 Lil. P. R. 636. ^7i(e, s On the traverse of an in-
680, 81. and see Append, quisition out of chancery, the
Chap. XXXV. § 3, 4. venire is returnable on a gene-
f 2 Lil. P. R. 612. 617. Lil. ral return-day. I Wils.77.
Vol. II. I
722 OF COMMON JURIES.
cause, the 'venire by original is made returnable oa
the last general retuni-day, or if by bill^ on the last
day of the term, before the assizes : And the distrin-
gas is tested on the quarto die post of the return by
original^ or by billon the return of the venire; and
made returnable on the first general return-day, or
day certain, in term-time, after the trial. It is not
necessary by origitial, that there should be fifteen
days between the teste and return of the jury-pro-
cess ^. The venire facias and distringas are sued out
together; and after being sealed, (for they do not re-
quire signing,) are taken to the sheriff's office, to be
returned. In causes which stand over from one sit-
ting to another, the writ of distri?igas should be
regularly altered and rcsealed, previous to the sit-
ting to which they stand over; or in default thereof,
the causes cannot be tried '.
The jury returned by the sheriff, on the venire
facias^ is common or special. A common jury is
nominated, summoned, and returned by the sheriff,
pursuant to the balloting act, (3 Geo. II. c. 25.
§ 8.) by which it is enacted, " that every sheriff
'*^ or other officer, to whom the return of the ve-
'■'■ nire facias jiiratores, or other process for the trial
" of causes, before justices of assize or nisi prius,
" in any county in England^ doth or shall belong,
" shall
^ Stcit. 13 Car. n. Stat. 2. c. 2. § 6. i R. E. 33 G. IIL
OF COMMON JURIES. /2a
*' shall upon his return of every such writ of 'vewre
*^ facias J (unless in causes intended to be tried at
'' bar, or in cases where a special jury shall be
" struck by order or rule of court,) annex a panel
" to the said writ, containing the christian and sur-
" names, additions and places of abode, of a com-
*' petent number of jurors, named in the lists men-
*' tioned in the act, as qualified to serve on juries,
" (the names of the same persons to be inserted in
" the panel, annexed to every veriire facias^) for the
" trial of all issues at the same assizes, in each re-
*' spective county; which number of jurors shall be
" not less than forty-eight in any county, nor more
" than seventy-two, without direction of the judges
** appointed to go the circuit, and sit as judges of as-
" size or iiisi prius in such county, or one of them,
" who are thereby respectively empowered and re-
** quired, if he or they see cause, by order under
'' his or their respective hand or hands, to direct a
*' greater or lesser number, and tli'en such number
" as shall be so directed shall be the number to
'* serve on such jury; and that the writs of habeas
'* corpora juratorum^ or distringas^ subsequent to
" such Avrit o^ "venire facias jurator'es, need not havQ
*' inserted in the bodies of such respective writs, the
'* names of all the persons contained in such panel,
" but it shall be sufficient to insert in the mandatory
" part of such writs respectively, the bodies of the
" several
724 or COMMON juries.
sei)eral persons named in the panel to this writ an-
?iexed, or words of the like import, and to annex
to such writs respectively, panels, containing the
same names as were returned in the panel to such
venire Jacias, with their additions and places of
abode, that the parties concerned in any such
trials may have timely notice of the jurors who
are to serve at the next assizes, in order to make
their challenges to them, if there be cause; and
that for making the returns and panels aforesaid,
and annexing the same to the respective writs, no
other fee or fees shall be taken, than what were
then allowed by law to be taken for the return of
the like writs, and panels annexed to the same;
and that the persons named in such panels shall
be summoned to serve on juries, at the then next
assizes or sessions of nisi prius, for the respective
counties to be named in such writs, and no
other •"."
And by § llv " the name of each and ever)'
person who shall be summoned and impaneled
as aforesaid, with his addition and the place of
his abode, shall be Avritten in several and distinct
pieces of parchment or paper, being all as near
as may be of equal size and bigness, and shall
be delivered unto the marshal of such judge of
assize or nisi prius^ &c. who is to try the cause in
"the
kSeeR. E. 1651.
OF SPECIAL JURIES. 725
*' the said county, by the under-sheriff of the said
" county, or some agent of his; and shall, by di-
*' rection and care of such marshal, be rolled up, all
" as near as may be in the same manner, and put
'* together in a box or glass, to be provided for that
" purpose."
Upon the execution of a writ of inquiry, the plain-
tiff, we may recollect, sometimes moves the court
for a rule to have a good ]ury \ which is a better sort
of common jury"': And before the introduction of
special juries, this rule appears to have been fre-
quently granted, for the trial of causes at nisiprms "*.
A special jury is nominated, in the presence of
the attomies on both sides, by the secondary, or
master of the King's Bench-office, who makes out
a list of forty-eight jurors, from the freeholders'
book, or book kept by the sheriff, of persons quali-
fied to serve on juries, out of whom each party is
at liberty to strike twelve, and the remaining twen-
ty-four are summoned and returned by the sheriff.
Special juries appear to have been first introduced
upon trials at bar, in causes of great consequence;
wherein the court would anciently make a rule,
upon motion and affidavit, for the secondary to
name forty-eight freeholders, and that each party
should
1 Mte^ 513, 19. "» 5 T, R. 460. " 1 Str. 265.
726 OF SPECIAL JURIES.
should strike out twelve, by one at a time, (the
plaintiff or his attorney beginning first,) and that the
remaining twenty-four should be the jury, to be re-
turned for the trial of the cause °. A rule having
been made accordingly, the plaintiff's attorney at-
tended the secondary, but the defendant's attorney
^vould not attend, and thereupon the secondary
nominated forty-eight, in the presence of the plain-
tiff's attorney only : Upon a motion to set aside this
nomination, the court thought fit to order a new jury
to be struck ; but made it a standing rule for the
future, that when the secondary is to strike a jury,
he shall give notice to the attornies on both sides to
be present, and if one comes and the other does not,
he that appeal's shall, according to the ancient
course, strike out twelve, and the master shall
strike out the other twelve, for him that is absent p.
If, by rule of court, the secondary is ordered to
strike a jury, in case it be not expressed in the rule
that he shall strike forty-eight, and each of the par-
ties shall strike out twelve, the secondary is to strike
twenty-four, and the parties have no liberty to strik*
out any ''.
Analogous to the practice upon trials at bar, it
was sometimes usual, in other cases, where it was
conceived an indifferent jury would not be return^
ed,
« 2 Lil. P. R. 123. T. 8 W. III. reg. 2.
p Id. 127. 1 Salk. 405. R, <» 1 Salk. 405.
OF SPECIAL JURIES. 727
ed, for the court upon motion to order the sheriff to
attend the secondary, with the freeholders' book,
and the secondary, in the presence of the attornies
on both sides, to strike a jury '. But probable mat-
ter must have been shewn to the court, to induce
them to grant this rule ' : and it being doubted,
whether it could be had without consent \ it was
declared and enacted by the statute 3 Geo. II. c. 25.
§ 15. " that it shall and may be lawful to and for his
" majesty's courts of King's Bench, &c. on the
*' motion of any plaintiff or plaintiffs, defendant or
" defendants, in any action, cause or suit what-
" soever, depending or to be brought and carried
" on in the said courts of King's Bench, &c. and
" the said courts are thereby authorised and re-
" quired, upon motion as aforesaid, to order and
*' appoint a jury to be struck, before the proper of-
" ficer of each respective court, for the trial of any
" issue joined in any of the said cases, and triable
*' by a jury of twelve men, in such manner as spe-
" cial juries have been and are usually struck in
" such courts respectively, upon trials at bar had in
*' the said courts; which said jury so struck as
" aforesaid, shall be the jury returned for the trial
" of the said issue."
Upon this statute it was holden, that the fees
for striking a special jury should be paid by the
party
^ 2 Lil. P. R. 123. Td. Ibid. • ],i. 12:.
728 OF SPECIAL JURIES.
party applying for it; but that the other expences of
the trial should abide the event of the suit ". This
being found inconvenient, gave rise to the statute
24 Geo. II. c. 18. § 1- by which it is enacted, " that
" the party who shall apply for a special jury, shall
^' not only bear and pay the fees for striking such
" jury, but shall also pay and discharge all the ex-
" pences, occasioned by the trial of the cause by
" such special jury; and shall not have any further
'* or other allowance for the same, upon taxation of
" costs, than such party would have been entitled
*' unto, in case the cause had been tried by a com-
" mon jury, unless the judge before whom the
" cause is tried, shall immediately after the trial,
*' certify in open court, under his hand, upon the
*' back of the record, that the same was a cause
" proper to be tried by a special jury""." And by
the same statute, § 2. "no person who shall serve
" upon a special jury, shall be allowed or take, for
" serving on any such jur}', more than the judge
" who tries the cause shall think just and reason-
" able, not exceeding one pound one shilling, ex-
"=' cept in causes where a view hath been directed. '*
Since
u Say. Costs, 181, 2 Str. judge cannot certify for the
1080. Cas. Pr. C. B. 138. costs of a special jury. 1 Esp.
Barnes, 123. S. C. Cas. M. Pri. 229.
^ In criminal cases, the
OF SPECIAL JURIES. 729
Since the making of this statute, the motion for a
special jury is become a motion of course, requiring
only counsel's signature ; upon which a rule is drawn
up by the clerk of the rules, and an appointment ob-
tained tliereon from the master, to nominate the for-
ty-eight: Which rule should be drawn up in London
and Middlesex, before the adjournment-day after
each term '' . A copy of this rule and appointment is
served upon the opposite attorney, and also on the
under-sheriff, who attends the master, at the time ap-
pointed, with the freeholder's book; and the nomi-
nation being made, lists of the persons nominated
are made out for each party, by the master's clerk.
Another appointment is then obtained from the mas-
ter, to reduce the jury, and served on the opposite
attorney; upon which the attornies on both sides
should attend, and the master will strike out twelve
names for each of them, beginning with the plaintiff
first, or if either of the attornies does not attend, he
will strike out twelve names for him that is absent ''.
The plaintiff, it seems, ought in all cases to sue out
the jury-process, even though the special jury be
moved for by the defendant ^; and in London^ he
chuses his own officer to summon them.
The facility of obtaining a rule for a special
jury is attended with this inconvenience, that when
the
« R.T. 30 G. III. ^R.T. 8W. III. y Imp. K.B. 324.
Vol. II. K
730 OF VIEWS.
the cause is to be tried at a sitting in term, the defen-
dant, by obtaining it, may put off the trial, till the sit-
tings after term, it not being usual to try special ju-
ry causes in term-time ; by which means, the plain-
tiff is delayed from getting judgment till the next
term, which may be at the distance of some months.
To obviate this inconvenience, it might be proper to
make the defendant, in such case, undertake to give
judgment, of the term in which the cause would
otherwise have been tried ^.
In actions oi waste, trespass quare clausum fregit^
and other actions, where it appears to the court to be
proper and necessary, that the jurors, whether com-
mon or special, who are to try the issues, should, for
the better understanding of the evidence, have a 'oieijj
of the messuages, lands, or place in question, the
court is authorised by the statute 4 Ann. c. 16. ^ 8.
*' to order special writs of distringas or habeas cor-
" pora to issue, by which the sheriff, or other officer
" to whom they are directed, shall be commanded
'' to
^ In the Common Pleas, cause to be tried in term, un-
when delay is suggested as the less such terms are submitted
true motive for the application to, as obviate the objection ;
for a special jury, and this is and giving judgment of the
not satisfactorily denied on the term, is not in all cases satis-
part of the person applying, factory,
the chief-justice directs the
OF VIEWS. 731
*' to have six out of the first twelve of the jurors
*' named in such writs, or some gi-eater number of
*' them, at the place in question, some convenient
" time before the trial, who then and there shall have
*' the matters in question shewn to them, by two per-
" sons in the said writs named, to be appointed by
" the court =*; and the said sheriff or other officer,
*' who is to execute the said writs, shall, by a special
*' return upon the same, certify that the view hath
*' been had, according to the command of the said
" writ," And by the 3 Geo. II. c. 25. ^ 14. "where
" a view shall be allowed in any cause, in such case
*' six of the jurors named in such panel, or more,
" who shall be mutually consented to by the parties,
*' or their agents on both sides, or if they cannot agree,
" shall be named by the proper officer of the re-
" spective courts of King's Bench, &:c. for the causes
" in their respective courts, or if need be, by a judge
" of the respective courts where the cause is depend-
*' ing, or by the judge or judges before whom the
" cause shall be brought on to trial respectively, shall
" have the view, and shall be first sworn upon the
" jury to try the cause."
Before the statute 4 Ann. c. 16. there could be
no view, till after the cause had been brought on
to
^^ Append. Chap. XXXV. § 10, &c.
732 OF VIEWS.
to trial; when, if the court saw the question involved
in any obseurit}^ which might be cleared up by a
view, the cause was put off, that the jurors might
have a view before it came on again ^. Upon this
statute, it had become the practice to grant a view of
course, upon the motion of eitlier party : And a no-
tion having prevailed, that six of the first twelve up-
on the panel must attend upon the view, and appear
at the trial, and that if they did not, the cause must
be put off, the judges thought it their duty to inter-
fere, and to take care that their ordering a view should
not obstruct the course of justice, and prevent the
cause from being tried: for they were all clearly of
opinion, that the act of parliament meant that a view
should not be granted, unless the court were satisfi-
ed that it was proper and necessary ; and they thought
it better, that a cause should be tried upon a view
had by any six, or by fewer than six, or even with-
out any view at all, than that the trial should be de-
layed for a great length of time. Accordingly
they resolved, not to order a view any more,
without a full examination into the propriety and
necessity of it, unless the party applying would come
into such terms, as might prevent an unfair use being
made of it "". Agreeabjy to this resolution, they re-
quired
b 1 Bur 253. 2 Salk. 665. c i Bur. 253.
OF VIEWS. 733
quired a consent, which has ever since been made a
part of the rule, that in case no view be had, or if a
view be had by any of the jurors, though not six of
the first twelve, yet the trial shall proceed, and no ob-
jection be made on either side, on account thereof,
or for want of a proper return to the writ '^.
In actions of waste, and trespass quare clausum
fregit, the necessity for a view appearing on the face
of the pleadings, the motion for it is a motion of
course, requiring only counsel's signature; upon
which a rule of court " is drawn up in term-time, or
a judge's order in vacation. But in other cases, a
special application must be made for the rule or or-
der, to the court or a judge, upon an affidavit of the
circumstances; and it is always made a part of the
rule or order, that the expences of taking the view
shall be equally borne by both parties, and that no
evidence shall be given on either side, at the time of
taking thereof ^ Before the rule or order is drawn
up, an application should be made to the opposite
attorney, for the name of his shewer; and the names
of both shewers must be inserted in the rule or order,
and also in the writ of distringas, with the time and
place of meeting for proceeding on the view. The
rule
d 1 Bur. 257. and see Ap- § 8, 9.
pend. Chap. XXXV. § 8. i Id. ibid.
e Append. Chap. XXXV.
734 OF EVIDENCE.
rule or order being drawn up, a copy of it must be
served on the opposite attorney, and the original left
ivith the sheriff, together with the names of the jurors,
if special, and he will summon them ; if common^ he
will summon ^uch as he thinks proper.
The next circumstance to be attended to is the
E'Didence; for unless the parties are prepared to
prove their allegations, it is needless for them to
go to trial : And herein, there are two things to be
principally considered in every action, first, what
is to be proved; and secondly, the manner of
proving it. The evidence, in all cases, is governed
by the pleadings ; it being necessary to prove every
thing that is put in issue, and no more. On the
general issue, the plaintiff must prove the whole
of his case; but on a special issue, it is only neces-
sary to prove the particular point referred to the
jury; for whatever is not expressly denied, is ad-
mitted by the pleadings. The manner of proof
depends on the nature of the evidence, which is
written or unwritten ^ : the former is of a public or
private nature, and is either found in the custody
of the parties, or of third persons; the latter arises
from the testimony of witnesses. In general, the
parties
?: Gilb. Evid. 5.. Bnl. A7. Pri. 221
OF WITNESSES. /3n
parties must come prepared with the best existing
evidence, the nature of the case admits of; and
the w^itnesses must be such, as are not interested in
the event of the suit ^. But when an objection is made
to a witness, that admits of any doubt, the courts, of
late years, have endeavoured as far as possible, con-
sistently with the old cases, to let the objection go
to his credity rather than his cornpetency \
The mode of procuring the attendance of wit-
nesses, is by subpoena ad testificandum ; which is a
judicial writ, commanding them to appear at the
trial, to testify what they know in the cause, on
the part of the plaintiff or defendant, as the case
is, under the penalty of one hundred pounds each ^.
Four witnesses only can be put in one writ of sub-
pxna ' ; and therefore it is frequently necessary to
have several writs, which are signed and sealed.
And if a cause appointed for one sitting be made
a remanct, the subpczna must be re-sealed and re-
served "\
If a witness have in his possession any deeds or
writings, which it is deemed necessary to produce
at the trial, there should be a special clause inserted
in
•» Cas. temjj. Hardw. 358. §16.
4 Burr. 2251. 3 T. R. 27. i Cowp. 846.
' Same cases; 1 T. R. 300. "> Imp. K. B. 367.
'' Append. Chap. XXXV,
736
OF WITNESSES.
in the subpoena, called a duces tecum, commanding
the witness to bring them with him " ; or if deeds,
&c. are in possession of the opposite party, his at-
torney or agent, a notice should be given to pro-
duce them°: And even in penal actions, it is not
necessary to give the notice to the defendant him-
self; notice to his attorney or agent being deemed
.sufficient p. In tronjer for a bill of exchange, the
defendant must have notice to produce it, or the
plaintiff cannot go into evidence of its being in the
defendant's possession '^. And the giving of notice
to produce deeds, &c. must be proved at the trial,
before the party can insist on the production of
them:
" Append. Chap. XXXV.
§ 18. But under a subfixna
duces tecum^ a witness is not
compellable to produce pri-
vate papers in his custody.
1 Esp. Cas. .A^z. Pri. 405.
" The subpoena., with a clause
of c?uce.? ;^cm77,and a n>ere no-
tice, ought not to be used indif-
ferently, as if both were calcu-
lated to answer the same end.
The former is the mandate of
the court, to compel a witness
to produce at the trial, any
written evidence he may be
in possession of; and is the
regular and proper process
for that purpose : But a notice
would be only a call upon his
candour, to produce such evi-
dence; and his omitting to do
so, would not be punishable as
a contempt of the court. The
use o{2L notice is, where written
evidence is in the hands of an
adverse party ; in which case,
though he is not perhaps, in
strictness of law, bound to
produce it against himself, yet
he may produce it; and
therefore the party who wants
it cannot be permitted to
supply its place by the
next best evidence, nor to
observe upon a refusal to
produce it, without proving
a notice to the adverse party
or his attorney, having first
shewn that it was in his pos-
session or power.
p 3 T. R. 306.
1 1 Esp. Cas. M. Pri. 50.
OF WITNESSES. 737
them: It is not sufficient that tlie attorney admits
the receipt of the notice ^ And where notice has
been given to produce books, if the party giving it
call for and inspect them, it does not make them evi-
dence for the other party, to whom they belong '.
The subposna being issued, a ticket should be
made out for each witness ', and personally delivered
to him ", a reasonable time before the day of trial ;
for witnesses ought to have a convenient time, to
put their own affairs in such order, as that their at-
tendance upon the court may be of as little prejudice
to themselves as possible '': And notice in London,
at two in the afternoon, for the witness to attend the
sittings at Wesiminster that evening, has been held to
be too short. Where the witness lives within the
weekly bills of mortality, it is usual to leave a shil-
ling with the subpoena ticket : but where he lives at a
greater distance, he is not obliged to attend, unless
his reasonable expences are paid or tendered him, not
only for going to, but also for returning from the
trial; and where less is offered, the witness is not
obliged to trust to the court's allowing him more,
when he comes to the book, for perhaps the party
may
•• Esp. Cas. M. Pri. 216. § 17.
' Id. 210. "2 Str. 1054.
^ Append. Chap. XXXV. v i str. 510.
Vol. II. L
738 OF WITNESSES.
may not call him, and then it may be difficult for
him to get home again '".
If the witness, not having a sufficient excuse,
neglect to attend upon the subpcena, he is liable to
be proceeded against three ways; first, by attach-
ment, for a contempt of the process of the court "^ ;
secondly, by a special action on the case for dama-
ges, at common law ''; and thirdly, by action on
the statute 5 Ellz. c. 9. \ 12. for the penalty of ten
pounds, and also for the further recompence given
by that statute, if it has been previously assessed
by the court out of which the process issued ^ An
attachment lies against an attorney in the cause, for
not attending upon a subpoena, to give evidence of
collateral facts "^; and it may be even had against a
peer of the realm ^ But in order to ground this
summary mode of proceeding, it is necessary to
prove that the witness was personally served ", and
that his reasonable expences were paid or tendered
him '. The motion for an attachment against a
person subpcena'd as a witness, for not attending,
should,
w 2 Str. 1150. 1 Blac. Rep. 1528. S. C. Cowp. 845. but
36. 1 H. Blac. 49. see 3 Bur. 1687.
'^ 1 Str. 510. 2 Str. 810. ^ Say. Rep. 50. 1 Wils.
1054. 1150. Cowp. 386. Doug. 332. S. C. but x;/a?e a72/e, 170,
561. 71.
y Doug. 561. c 2 Str. 1054.
•'» Id. ibid. ^ Id. 115Q. 1 Blac. Rep. 36
a 2 Str. 810. 2 Ld. Raym.
OF WITNESSES. 739
should, as in other cases of contempt, be brought
forward as soon as possible : and therefore the court
refused an attachment in Hilary term, for non-at-
tendance at the preceding summer assizes, and left
the party to his civil remedy *.
When the witness is detained in prison, a habeas
corpus ad testificandum ^ is necessary, to bring him
up; for which an application is made to the court
or a judge, upon an affidavit^, sworn to by the
party applying'', stating that he is a material wit-
ness, and willing to attend ". Upon this applica-
tion, the court in their discretion will make a rule,
or the judge, if he thinks proper, will grant his fiat
for the writ, which is then sued out, signed and
sealed. But a habeas corpus ad testificandum will
not lie, to bring up a prisoner of war " : And where
the application for it appeared to be a mere con-
trivance, to remove a prisoner in execution, the
court refused to grant it '. The writ being sued
out, should be left with the sheriff, or other officer
in whose custody the witness is detained, who will
bring him up, on being paid his reasonable charges '.
When
e V. St, Leger, H. 37 ^ Dous.419.; and see 6 T.
G. III. R. 497. 7 T. R. 745.
f Append. Chap. XXXV. i 3 Bur. 1440.
§21. >" 1 Cromp. 248, 9. Qu.
E Id. ^ 19. whether the officer may not
^ Fortes. 396. require an indcmnitxj^ against
' Cowp. 672. Per Cur. Hil. the prisoner's escape? /c/. ibid.
1780.
740 OF EXAMINING WITNESSES
When a material witness is going, or resides
abroad, so that he cannot attend at the trial, the par-
ty requiring his testimony may move the court in
term-time, or apply to a judge in vacation, for a rule
or order to have him examined on interrogatories
de bene esse, before one of the judges of the court,
if he reside in town, or if in the country or abroad,
before commissioners specially appointed, and ap-
proved of by the opposite party ''. The rule or order
for this purpose cannot be obtained without consent;
the depositions of witnesses upon interrogatories not
being the best existing evidence the nature of the
case admits of. The court however will do every
thing in their power to make the parties consent,
when necessary ; as by putting oft' the trial, at the
instance of the defendant, if the plaintift' will not
consent": And if the defendant refuse, the court
will not give him judgment as in case of a nonsuit.
The application, in the first instance, is for a
rule or summons to shew cause, upon an affidavit
stating that the witness is material, and going or
resident abroad: which being consented to, the
court will make the rule absolute, or the judge,
an order upon the summons. The interrogatories
should be then prepared p, which are signed by
counsel, and ought not to be too leading : this done,
a copy
'' I Cromp. 229. Pul. 210.
" Cowp. 174. Doug. 419. p Append. Chap. XXXV\
sed quxre; and see 1 Bo.s. 8c §22,3.
ON INTERROGATORIES. 74i
a copy of the interrogatories is given to the opposite
attorney, with notice of the time when the witness
is to be examined, in order that he may file cross
interrogatories '^, if he think proper. At the time ap-
pointed, the^ witness is taken, together with the inter
rogatories, to the judge's chambers, or before the
commissioners appointed by the rule or order, where
he is examined; and his depositions being sworn to,
copies are made out, and deUvered to the party re-
quiring them. And as the depositions are only taken
de bene esse, they cannot be made use of, if the wit-
ness should happen to be in this country, at the time
of the trial "". The party succeeding is not entitled to
the costs of examining witnesses on interrogatories,
or taking office-copies of depositions ; but each party
pays his own expence, unless it be otherwise ex-
pressed in the rule ^
By the statute 13 Geo. III. c. 63. \ 44. it is
enacted, " that when and as often as the East-In-
" d'la company, or any person or persons, shall
'' commence and prosecute any action or suit, in
*' law or equity, for which cause hath arisen in
'' India, against any other person or persons, in
*' any of his majesty's courts at Westminster, it shall
" and may be lawful for such court respective.
- "ly
H Append. Chap. XXXV. 493.; and see Bui. M. PH.
§ 24. 239.
«• 2 Salk. 691. 12 Mod. ' 2 East, 259.
742 OF EXAMINING WITNESSES, &C.
** ly, upon motion there to be made, to provide and
** award such writ or writs, in the nature of a man-
*' damns or commission, as therein mentioned, for
*' the examination of witnesses; and such examina-
" tion being duly returned, shall be allowed and
" read, and shall be deemed good and competent
" evidence, at any trial or hearing between the par-
" ties in such cause or action.'* These writs have
been accordingly issued in several cases * ; and in one
of them ", the motion being made on the last day of
the term, the court awarded such a writ, even before
issue joined.
t Mullick V. Luahington, M. Company^ M. 33 Geo. III.
26 G. III. East-India Com- « Sfialding v. Mure, T. 35
pany v. Lord Maiden^ E. 32 G. III.
G. III. Taylor v, East-India
CHAP-
[ 743 ]
CHAPTER XXXVL
Of Arbitration.
T^HE record of nisi prius being made up and
passed, the jur)^-process sued out, and the wit-
nesses subpoena^ d^ the cause is entered for trial. And
in this stage of the proceedings, or more frequently
at the trial, when one or other of the parties is com-
monly fearful of the event, the matter in dispute is
sometimes referred to arbitration ^.
Arbitrations are of two kinds, first, where there
is a cause depending in court, and secondly, where
no cause is depending. The submission, in the
former case, is either by rule of court before the
trial, or by order of nisi prius at the trial '', which is
afterwards made a rule of court; and upon a sub-
mission of this kind, the plaintiff usually takes a
verdict for his security, particularly when there is
special bail, who would not otherwise be liable for
the sum awarded. In the other case, the submis-
sion
a The subject of arbitration ment of the parties, to refer
is not necessarily connected them to the decision of one or
with a suit at law, as it fre- more indifferent persons as ar-
quently exists, where no suit bitrators.
is depending ; being a mode •> Append. Chap. XXXVI
of settling disputes by agree- § 1.
744 OF ARBITRATION.
sion is by agreement of the parties, which is either
in writing, or by parol; or by the positive direc-
tions of an act of parliament, as in the case of in-
closure acts.
References made by rule of court having been
found to contribute much to the ease of the subject,
in the determining of controversies, the parties be-
ing obliged thereby to submit to the award, under
the penalty of imprisonment, it was enacted, by the
statute 9 and 10 W. III. c. 15. \ 1. " that it shall
" and may be lawful for all merchants and traders,
" and others desiring to end any controversy, suit or
*' quarrel, for which there is no other remedy but by
" personal action or suit in equity, by arbitration,
" to agree that their submission of their suit to the
" award or umpirage of any person or persons,
" should be made a rule of any of his majesty's
*' courts of record, which the parties shall choose,
" and to insert such their agreement in their submis-
" sion, or the condition of the bond" or promise,
*' whereby they oblige themselves respectively, to
' ' submit to the award or umpirage of any person or
*' persons; which agreement being so made, and
' ' inserted in their submission or promise, or condi-
*' tion of their respective bonds, shall or may, upon
" producing an affidamt thereof made by the wit-
" nesses thereunto, or any one of them, in the court
" of
- Append, Chap. XXXVI. § 2.
OF ARBITRATION. 745
** of which the same is agreed to be made a rule, and
" reading and filing the said affidavit in court, be en-
'* tered of record in such court; and a rule shall
** thereupon be made by the said court, that the par-
*' ties shall submit to, and finally be concluded by
*' the arbitration or umpirage which shall be made
" concerning them, by the arbitrators or umpire,
" pursuant to such submission; and in case of dis-
" obedience to such arbitration or umpirage, the party
" neglecting or refusing to perform and execute the
" same, or any part thereof, shall be subject to all
" the penalties of contemning a rule of court, when
" he is a suitor or defendant in such court, and the
" court on motion shall issue process accordingly;
" which process shall not be stopped or delayed in
" its execution, by any order, rule, command, or
*' process of any other court, either of law or equity,
" unless it shall be made appear on oath to such
*' court, that the arbitrators or umpire misbehaved
" themselves, and that such award, arbitration, or
" umpirage was procured by corruption, or other
'■*■ undue means." The intent of this act was to put
submissions, where no cause was depending in court,
upon the same footing with those, where there was a
cause depending; and it is only declaratory of what
the law was before, in the latter case '^.
This
^ 2 Bur. 701.
Vol. II. M
746 OF ARBITRATION.
This statute is confined to the submission of dis-
putes of a chil nature : Therefore the court will not
make a submission to an award a rule of court, where
part of the matter agreed to be referred has been
made the subject of an indictment ^. And a parol
submission is not within the statute ^; nor a submis-
sion in wTiting, unless it is agreed to be made a rule
of court: But where there is such an agreement, it
seems that the court will enforce the execution of a
parol award by attachment °. A consent, in the ar-
bitration-bond, to make the award a rule of court,
instead of the submission^ \\'\X\ it seems warrant the
interposition of the court, under this act ^ : And
where a submission was by bond, and at the end of
the condition there was this clause; And if the obli-
gor shall consent^ that this submission be made a rule
of courts that thcn^ ^c. the court on motion held
these conditional words to be a sufficient indication
of consent, and made the submission a rule of court \
So where the agreement, to make the submission
a rule of court, was no part of the condition, but
was thereunder written, and not signed; it appear-
ing by affidavit, that the subscription was made
before the execution of the bond, it was taken by
* the
^ 8 T. R. 520. Bos. & Pul. 444. but see 2
'7 T. R. J. Str. 1178. contra,
t Barnes, 54. i 1 Salk. 72. \ Ld. Raym.
'■■^ Powell \. Philli/is, E. 30 674. S. C
G. III. 3 East, 603. K. B. 2 ;*
OF ARBITRATION. 747
the court to be part of the condition, as an in-
dorsement by way of defeazance is part of the
deed; and the submission was made a rule of
courts
A submission to arbitration, by iiile of court, of
all matters in difference between the parties in the
cause y is not confined to the subject-matter in the par-
ticular action then depending ; but will extend to
cross demands between the paities, though not plead-
ed by way of set-off; and the costs being to abide
the event, will make no difference ""r But a reference
of all matters in difference in tlie cause between the
parties^ is confined solely to the matters in dispute
in that particular action. A submission to an award
having been made a rule of court, between A. and B.
the parties on the record, which award not having
been made in time, the dispute was referred to a se-
cond arbitrator, by B. and C. who were the real par-
ties in the suit, the court would not grant an attach-
ment against B. for not obeying the award made by
the second arbitrator, because the reference should
have been made by the parties on the record; and
even if it had, there should have been another rule,
to make the second submission a rule of court: And
as the court had no jurisdiction in this case, they could
not
i Barnes, 55. »« 2 T. R. 645.
748 OF ARBITRATION.
not go into the merits, though B. consented to waive
the objection '.
It was formerly holden, that a reference to arbitra-
tion was an implied stay of proceedings ". But in
the beginning of queen Anne'^s time, a rule was made,
that no reference whatsoever, of any cause depend-
ing in this court, should stay the proceedings; un-
less it was expressed, in the rule of reference, to be
agreed, that all proceedings in this court should be
stayed ". And it has been frequently decided, that an
agreement to refer all matters in difference to arbitra-
tion, is not sufficient to oust the courts of law or
equity of their jurisdiction °.
There are several ways, however, in which the
power of arbitrators may be legally determined; as
first, by the death of the parties to the submis-
sion ''; secondly, by the arbitrators not making an
award, within the time limited; thirdly, by their
disagreement, and refusal to act or intermeddle any-
further, or by their appointing an umpire to act
for them''; and fourthly, by the re'vocation of the
parties : Respecting which it is laid douTi, that al-
though a man be bound in a bond to stand to the
arbitrament
1 2 T. R. 643. q 1 Rol. Abr. 261, 2. 1 Sid.
»n 1 Mod. 24. 428. 2 Saund. 129. 1 Lev.
n 2 Ld. Raym. 789. 174. 285. 302. 3 Lev. 263. 2
• 8 T. R. 139. Vent. 1 13. 1 Salk. 70, 71, 72.
p But see Barnes, 2 10.
1
OF ARBITRATION. 749
arbitrament of another, yet he may countermand df
revoke the power of the arbitrator; for a man cannot,
by his own act, make an authority, power, or war-
tant not countermandable, which by the law and of
its own nature may be countermanded "^ : But by this
countermand, or revocation of the power of the ar-
bitrator, the bond is forfeited, and the obligee shall
take the benefit thereof % A matter was referred by
consent at nisiprius, to the three foremen of the jury,
and before the award was made, one of the parties
served the arbitrators with a subpoena out of Chan-
cery, which hindered their proceeding to make the
award; the court held this to be a breach of the rule,
and granted an attachment nisi \ So where the par-
ties, upon a reference, consented to abide by the
award, and not to bring any bill in equity, and their
submission was made a rule of court, and after an
award made, one of them filed a bill in Chancerv
against the other, the court made a rule absolute for
an attachment ".
When a cause is referred at the trial, it is usual
to get the witnesses sworn, before they leave the
court; otherwise (if required) they must be sworn
before a judge : And the order of nisi prius being
obtained, from the clerk of nisi prius in London or
Middlesex^
' 8 Co. 82. t 1 Salk. 73.
s Id. ibid. T. Jon. 134. « 3 Bur. 1256.
750 OF ARBITRATION.
■Middlesex, or from the judge's associate at the as-
sizes, the arbitrator will make an appointment in
writing, of a time and place for the parties and their
witnesses to attend him ; which appointment should
be subscribed to a copy of the order ofnisiprius, and
served therewith on the defendant's attorney. And,
previous to the meeting, the arbitrators should be
furnished with a state of the case, and the names of
the witnesses, &.c. A similar mode of proceeding is
to be observed, where the reference is by agreement
without suit.
The arbitration then proceeds : And it has been
holden that arbitrators, having power to choose an
umpire, may elect one before they enter upon the ex-
amination of the matter referred to them ". When
a cause is referred to three persons, and they or any
two of them are empowered to make an award,
an award made by two of them is good, if the third
had notice of the meetings, &c.; but otherwise,
such an award is bad '". If the arbitrators cannot
make their award, within the time limited by
the rule of court, or order of ?iisi priuSy a rule may
be obtained, by consent, for enlarging it; or
where the submission is by agreement without
suit, the time may be enlarged by consent of the
parties .
V 2 T. R. 644. w Willes, 215. Barnes, 57. S. C
OF ARBITRATION. 75i
parties. But where the submission is by bond '',
an agreement to enlarge the time for making an
award, must contain a consent that it shall be made
a rule of court; otherwise no attachment will be
granted, for not performing an award made under
it y. The rule, when necessary, is drawn up by the
clerk of the rules, on a brief or motion-paper
signed by the counsel on both sides, and a copy of
it served, with an appointment thereon; but be-
fore this rule can be obtained, a motion must be
made, for making the order of nisi prius or agree-
ment a rule of court.
It will next be proper to consider the award;
and the mode of enforcing it, by the party in whose
favour it is made, or of setting it aside, by the op-
posite party. The general requisites of an award
are, that it be certain, mutual, and final'': But
certainty to a common intent is sufficient ^. And
an award may be good in part and bad in part,
provided the latter be independent of, and uncon-
nected with the former^. Though the award be
final, as to all matters referred, and decided upon
by the arbitrators, yet upon a reference of all mat-
ters in difference between the parties, an award
does
" fitter, where the submis- trament; Kyd on Award; and
sion is by ov(\tT oi nisi firius . I Saund. 327 (2).
Per Cur. E.41 G. III. ■' 1 Bur. 274. and see 7 T.
VST. R. 87. R. 76.
^See Bac. Abr. tit. Jrhi- Ij Willes. 62. 66. 25"
752 ' OF ARBITRATION.
does not preclude the plaintiff from suing for a cause
of action, existing against the defendant at the time
of the reference, upon proof that the subject-matter
of such action was not laid before the arbitrators, nor
included in the matters referred ",
Where a cause is depending, the submission is
either silent with regard to costs, or they are directed
to abide the event of the award, or else to be in the
discretion of the arbitrator. The power of awarding
costs is necessarily consequent to the authority con-
ferred upon the arbitrator, of determining the cause;
and the reason why, in references of this sort, a pro-
vision is frequently inserted, that the costs shall abide
the event of the award, is that the arbitrator may not
have it in his power to withhold costs, from the par-
ty who is in the right : But that is to be considered
as the restriction of a power, which he would other-
wise necessarily have, of allowing costs at his elec-
tion '^.
Where the costs are directed to abide the e'uent,
that must be taken to mean the legal event : There-
fore, where an action of trespass was brought
for pulling down the plaintiff's gates, and assault-
ing him, and the defendants pleaded not guilty to
the whole declaration, and justified as to all the*
counts but one, under different rights of way; and
the
^ 4 T. R. 146. but see d 2 T. R. 644, 5. but see
Willes, 268. 7 Mod. 349. Willes, 62,
oct. ed. S. C,
OF ARBITRATION. 755
the arbitrator awarded a right of way to the defend-
ants, different from any of those set forth, and gave
five shillings damages to the plaintift' for the assault,
as having been committed when the defendants were
attempting to exercise a right of way, negatived by
the arbitrator; the court held, that the plaintiff could
recover no more costs than damages, the award of
the arbitrator not being tantamount to a judge's cer-
tificate, under the 22 & 23 Car. II. c. 9.^ So where
a cause is referred to arbitration, and the costs are di-
rected to abide the event of the suit, the plaintiff is
not entitled to them, if it appear by the award, that
his original demand was under forty shillings, and
he might have recovered it in a court of conscience ^.
If a cause be referred to arbitration, under an order
of nisi prius^ but a verdict be nevertheless taken for
the plaintiff, for a certain sum, as a security for what
shall be awarded to be paid to him, and costs , the ar-
bitrator cannot award a sum to be paid to the i^\i\\n-
tiW wit/iout costs; because, by the terms of the order,
he was precluded from entering at all into the ques-
tion concerning costs ^.
Where the costs are left to the discretion of the
arbitrator, he may either award a gross su?n to be
paid
3 T. R. 138. H. 30 Geo. III.
f Id. 139. Waston v. Gibaon^ s Say. Costs, 177.
Vol. II. N
754 OF ARBITRATION.
paid for costs''; or he may award, that one of the
parties shall pay to the other, costs to be taxed by the
master'; or he may award costs generally^ in which
case the master shall tax them ''. But he cannot award,
that one of the parties shall pay to the other such costs
as two persons named in the award, but not officers of
the court, shall appoint; for this is an improper dele-
gation of his authority '. If an arbitrator award costs,
to be taxed by the master, such costs shall be taxed
as between party and part}^ and not as between at-
torney and client "" : And it is settled, that an arbitra-
tor cannot award any other than the common costs, as
between party and party, unless he be expressly au-
thorised so to do ". Where a submission to arbitra-
tion is under an order of nisiprius, the arbitrator may
award costs, subsequent to the order; but whei'e the
submission is by bond, he cannot award subsequent
costs °. And if an arbitrator appointed under an
order of nisi prius, only aw ard costs to be taxed ge-
nerally,
'' Cas. temfi. llardw. 53. P. 69, 70, 2 Blac. Rep. 953.
i 1 Salk. 75. 6 Mod. 195. ° Pr. Reg. C. P. 45. Barnes,
S. C. 7 T. R. 77. 58. And if arbhrators award
k 2 Str. 737. Say. Rep. 240. the defendant to pay the plain-
Barnes, 56. 58. and see Hul- tiff his costs of suit, to be tax-
lock on Costs, 418, 19.Willes, ed by the proper officer before
62. a particular day, it is tl>e busi-
1 Cas. teinji. Hardw. 181. v\it?>?> oi t\vi defendaiit to have
2 Str. 1025. S.C. tliem taxed before that day-
'" Cas. tcm/i. Hardw. 161. Willes, 62.
'> Cowp. 127, Cas. Pr. C.
1
OF ARBITRATION. 755
iierally, the costs of the reference ought not to be al-
lowed on the taxation, but merely the costs of the
suit P : Neither will an award that one party shall pay
to the other, the costs by him sustained in the action,
include the costs of the reference '^. Where the cause
goes off upon an ineffectual arbitration, and is after-
wards tried, costs are allo^ved as upon a remanet \
The mode of enforcing an award, by the party in
whose favour it is made, is by action, or when the sub-
mission is made a rule of court, by attachment ' ; and
if a lierclict has been taken for the plaintiff's security,
by entering up judgment thereon, and taking out exe-
cution. Upon a submission being made a rule of
court, it was formerly holden, that the party might
proceed both by action and attachment at the same
time ' ; but a different doctrine has been since laid
down ".
Where the submission is by deed with a penalty,
and the award is made within ihe time limited, an
action of debt lies upon the deed, for the non-per-
formance of the award; and that, \^'hether the
award be for the payment of money, or the per-
formance
p Barnes, 123. 1 H. Blac. 71. 131. 144. 1 H. Blac.
223. I Bos. Ec Pul. 34. 639.
q 1 H. Blac. 223. « 1 Salk. 83.
' 5 Bur. 2694. Say. Costs, t Id. 7:!,.
179. S. C. but see Doug. " Andr. 299. Cas. tcmii.
437, 3 T. R. .507. 6 T. R. Harilw 106.
756 OF ARBITRATION.
formance of a collateral act. But where in an arbitra
tion-bond, a time was limited for the arbitrator to
make his award, and such time was afterwards en-
larged by mutual consent, it was held that no action
could be maintained on the bond, to recover the pe-
nalt}^ for not performing the award, made after the
time first limited " : In such case, the plaintiff should
have proceeded by action of debt or assumpsit^ on the ,
submission implied in the agreement, to enlarge the
time. An action of debt also lies upon a submission
by deed, without a penalty, or upon a submission in
writing Vv'ithout deed, or by parol, where the award
is. for the payment of money; but where it is for the
perlbrmance of a collateral act, the plaintiff should
proceed by action of coijenatit upon the deed, or if
the submission be without deed, by action of as-
sinnpsit "''. And when matters in dispute are refeiTed
to arbitration, without bond, and the arbitrators
award a certain sum to be due, it may be recover-
ed under a coimt on an insimul comput assent ". Two
several tenants of a farm agreed with the succeed-
ing tenant, to refer certain matters in difference re-
specting the farm to arbitration, and jointly and
severally promised to perform the award; the ar-
bitrator awarded each of the two to pay a certain
sum to the third ; and the court held, that they were
jointly
^3 T. R. 592. in nods. " 1 Esp. Cas. M. Pri. 194.
^ 2 Ld. Raym. 1040. but see id. 377.
OF ARBITRATION. 757
jointly responsible for the sum awarded to be paid
by each ^.
Where the submission is by rule of court origi-
nally, or by order of nisi prius or agreement, whicl;
is afterwards made a rule of court, the party disobey-
ing an award is not only liable to an action, but also
to an attachment, as for a contempt \ And where the
original award was lost, the court, on a proper affida-
vit, granted an attachment upon a copy of it ^. Bui
an attachment cannot be granted against a peer of the
realm, or member of the house of commons, for non-
payment of money pursuant to an award ''. If an ar-
bitrator award, among other things that each party
shall pay a moiety of the costs of the arbitration, and
of making the submission a rule of court; and one
party, in order to get the award out of the hands of
the arbitrator, pay the whole ; it seems that he may
have an attachment against the other party, if he re-
fuse to pay his moiety ".
The party having a remedy by action on the
award, it is discretionary in the court, whether or
not they will enforce it by attachment. And
therefore, where there was a contrariety of evi-
dence, they would not deterhiine it upon affida-
vits,
y 7 T. R. 352. h 7 T. R. 171. 448. Jnte,
'■ 1 Salk. 83. 170, 71.
^ 1 Str. 526. - 1 T^os. & Pul. 93.
758 OF ARBITRATION.
vits, in a summary way ^. So where the defendant
was a bankrupt, and incapable of paying the sum
awarded, the court refused an attachment for non-
payment of it '^ : And where a party was taken upon
an attachment for not performing an award, after
which he became bankrupt and obtained his cer-
tificate, the court ordered him to be discharged; for
this was a demand for which debi would lie, and the
act says, he shall not be arrested, /^ro^'^'cz//*?^ or im-
pleaded for any debt due before the bankruptcy : It
would therefore be hard to keep him in custody,
when the duty is discharged ^ A kmt-sole having
agreed to a reference, was awarded to deliver up two
notes, and pay a sum of money ; she married, and the
husband refusing to pay, it was doubted if the court
could grant an attachment, against both or either of
them ^.
The court will not grant an attachment against
an administrator, for not performing a rule of court
entered into by the intestate''. And a submission
to arbitration by an executor or administrator, is not
of itself holden to be an admission of assets; and
therefore, if upon such a submission, the arbitrator
simply awards a certain sum to be due from the tes-
tator
•i 1 Str. 695. g Jnon. 1 Cromp. 270. and
•^ Anon. K. B. 1 Crotnp. see 6 T. R. 161.
'270. ^ Willes, 315.
f 2 Str. 1152.
OF ARBITRATION. 759
tator or intestate's estate, without saying by whom it
is to be paid, the executor or administrator is not
personally liable to the payment ol" the sum awaided,
nor can be attached for the non-payment of it '. But
a submission to arbitration by an executor or admi-
nistrator, is considered as a reference not only of the
cause of action, but also of the question, whether or
not he has assets: And therefore if an arbitrator, un-
der a reference between A. and B. administrator
award that B. shall pay a certain sum as the amount
of A.'s demand, B. cannot afterwards object that he
had no assets; for this is equivalent to determining,
as between these parties, that he had, and therefore he
may be attached for non-payment ''. A foreign at-
tachment in London, if properly pleaded, is a good
bar to an action on an award ', or on a bond condi-
tioned for its performance '"; but where the submission
is made a rule of court, it is no answer to an attach-
ment in this court, for non-payment of the sum
awarded ".
Before any application is made for an attach-
ment, or to set aside an award", the submission
must
i 5 T. R. 6. And trustees, i 1 Sid. 327.
by submiting matters to ar- f" 1 Ld. Raym. 636. 3 Salk.
bitration, do not make them- 49. S.C.
selves personally liable. 3 Esp. ^^ Grant, v. Hwuxiing, 4 T.
Cas.A7.iV/. 101. R. 313. in notis. 1 Cromp
k 7 T. R. 453. and see 270.
1 T. R. 691. « ? Str. 1178.
760 OF ARBITRATION. ""
must be made a rule of court, if not one already;
which is done on an affidavit, by one of the wit-
nesses, of the due execution of the bond, or agree-
ment containing the submission p; and if he refuse to
make it, the court will compel him '^. But where a
matter is referred to arbitrators, by rule of court,
and they make their award, the court will compel a
performance of it, as much as if the award were part
of the rule ; so that a new rule is needless ^
In order to proceed by attachment, there must be
personal notice of the award, and a demand of the
money, or other thing awaided*; which demand
may be made by the party himself, or by a third per-
son under a power of attorney. And at the time of
demanding it, a copy of the rule must be served up-
on the opposite party, and of the master's allocatur
thereon, if the demand be of taxed costs, and also a
copy of the award, and of the power of attoiTiey, if the
demand be made by a third person "^ ; the original rule
and allocatur^ and also the award and power of attor-
ney, when required, being at the same time produced
and shewn. After a demand and refusal, the court
upon
p Append. Chap. XXXVI. 312. Per lord Kenyan, E. 35
53. G. III. 1 Bos. & Pul. 394.
1 1 Str. 1. Barnes, 58, ^ Per lord Ke?tuon, H. 38
^ 1 Salk. 71. Geo. III.
- Id. 83. 12 Mod. 257.
OF ARBITRATION. 761
Upon an affidavit of the due execution ot" the award ^,
and power of attorney, and another of the service of
a copy of the rule, and of the demand and refusal,
&.C. "' will grant a rule for an attachment ?iisiy which
they will afterwards make absolute, on an affidavit of
service, if no sufficient cause be shewn to the con-
trary. Where a submission to an award is made a
rule of court under the statute, there being no action,
the affidavit upon which to apply for an attachment,
for disobeying the award, need not be intitled in any
cause ; but the affidavits in answer must "" : And if
an affidavit be put into court, without any title, the
court cannot take notice of it, though the adverse
party is willing to waive the objection • . The affir-
mation of a ^laker has been holden not sufficient to
ground an attachment, for the non-performance of
award ^
Where a cause is referred at the trial, and a ver-
dict taken for the plaintiff's security, and an award is
afterwards made in his favour, the plaintifi" ma}' make
his
^ Append. Chap. XXXVI. Potvel v. Ward^ cited in Andr.
§ 4. 200. and Taylor v. Scott, cited
^v/rf. §5, 6. in Cowp. 394. 1 T. R. 266.
=^ 3 T. R. 601. Ante, 451. and the several cases referred
y 2 T. R. 643. to by Mr. Dumford, in a very
2 1 Str. 441. Willes, 291. copious note on Willes, 292.
S. P. but see the eases of scmb. centra.
Vol. II. O
762 OF ARBITRATION.
his election, either to proceed on the award, by ac-
tion or attachment, or on the verdict; and in the lat-
ter case, the plaintiff is entitled to sign judgment,
and take out execution for the money awarded,
without first applying to the court for leave ^. If in
such case the award be made before the term, the
dctendciut in the common pleas can only impeach it
within the four first days of term : And personal ser-
vice of the award is not necessary to warrant the
issuing of execution, if the attorney of the defendant
has been served with a copy of the award.*
The mode of setting aside an award is by applica-
tion to the court, founded on some objection to its
legality, appearing on the face of the award itself, or
from the reasons given by the arbitrators in support
of it '; or else on an afiidavit of some irregularity, as
want of notice of the meeting '^, or collusion or gross
misbehaviour of the arbitrators '^ : And upon such an
apjDiication, if made in due time, every ground of
relief in equity, against an award, is equally open in
tills court ". The usual practice is, to oblige the par-
ty who complains of the award, to move to set it
aside, unless the objections appear on the face of it;
and then both rules come on together: This gives
the other side an opportunity of answering the alle-
gations, on which the objections to the award are
founded. But the court on motion will not enter into
the merits at large; for if they did, no person, it is
said, would ever undertake to be an arbitrator ^. And
they
a 1 East, 401. I Bos. £c 529.
Pul. 97.480. SBos.&cPul. 244. d 3 Atk. 529. 2 Bur. 701,
but see 1 Salk. 8 ;. Barnes, 58. «= 3 Bur. 1258, 9.
contra. f 1 Salk. 71. 1 Str. 301. 3
b 3 East, 18. Atk. 529. 2 Bur. 701.
c 1 Salk. 7 1. but see 3 Atk. * 3 Bos. & Pul. 244.
OF ARBITRATION. 763
they will not set aside the award of an umpire, because
he received evidence from the arbitrators, without
examining the witnesses, unless he were required to
re-examine them, before the making of his umpi-
rage 5. If an award be made on an improper stamp,
and no application be made to enforce the award, the
court will not set it aside "": And if an objection to
the stamp be not alleged, as a ground for obtaining
a rule to shew cause to set aside an award, the court
will not suffer it to be relied upon afterwards, when
cause is shewn '. On a motion respecting an award of
commissioners, under an inclosure act, the court
said: *' We may punish upon this, if there be any
corruption; or enforce its execution by mandamus:
But we are not to interpret or set aside these awards,
upon complaint of their obscurity \ &.c."
By the statute 9 & 10 ^. III. c. 15. § 2. " any
*' arbitration or umpirage, procured by corruption or
" undue means, shall be judged and esteemed void
" and of none effect, and accordingly be set asidt* by
** any court of law or equity, so as complaint of such
" corruption or undue practice be made, in the court
" where the rule is made for submission to such
" arbitration or umpirage, before the last day of the
" next
g 4 T. R. 589. And see 1 38 G. III.
Bos. & Pul. 9 1 . 175. k OvtT'Kdlet Inclosure Act,
''7TR.95. H. 38 Geo. III.
* Liddell v. Johns toncy H.
764 or ARBITRATIOK.
" next term after such arbitration or umpirage made
*' and published to the parties'." And where the
appHcation is to refer back an award to the same ar-
bitrator to reconsider it, on the ground that he had
not sufficient materials before him, it must be made
within the same time ; although the arbitrator be not
charged with corruption or undue practice °\ But
the 9 & 10 W. III. c. 15. \ 2. which limits the time
of complaining against awards, to the last day of the
next term after the award made, extends not to such
as are made in pursuance of an order of nisi pr'ius^
but only where the submission is by obligation ".
The court will not set aside an a^ ard, though for
defects appearing on the face of it, after the expira-
tion of the time limited by the statute ° : And a party
cannot, in shewing cause against an attachment, im-
peach die award for any extrinsic matter p. But upon
an application for an attachment, for non-perform-
ance of an award, it is competent to the parties to
object to the award, for any illegality apparent on the
face of it, although the time limited by the statute,
for applying to the court to set aside the award, is
expired '^ : The reason is, tliat upon a motion for an
attachment,
' Co\vp. 23. Barnes, 55. Barnes, 55.
m 2 T. R. 781. p 6 T. R. 161.
" 1 Str. 301. 2 Bur. 701. q 7 T. R. 73. and see Barnes,
o Per Powell, Just. Andr. 57.
i97. 1 East, 276. and see
OF ARBITRATION. 765
attachment, the party would be without remedy, if
the attachment were granted, notwithstanding the
illegality of the award ; whereas if the party were left
to his remedy, by bringing his action on the award,
it would be competent to the defendant to take advan-
tage of any illegality appearing upon the face of it "■.
The court, we may remember, will not, on the last
day of term, hear a motion for a rule nisi to set aside
an award *; nor can counsel be heard on that day, to
shew cause against such a rule, but the same must
be enlarged, and made peremptory for the next ensu-
ing term '.
«■ 1 East, 277, B.fier Lawrence, J. s Jnte, 452.
CHAP-
[ 766 ]
CHAPTER XXXVII.
0/^Trials ^^Ad" Country, and their In cibents.
'' I TRIALS by the country are at bar, or nisi prius.
-*- Before the statute JVestm. 2. (13 Ed. I.) c. 30.
civil causes were tried either at the bar, before all the
judges of the court, in term-time; or when of no
great moment, before the justices in Eyre: a practice
having very early obtained, of continuing the cause
from term to term, in the court above, provided the
justices in Eyre did not previously come into the
county where the cause of action arose; and if it
happened that they arrived there within that interval,
then the cause was removed from the jurisdiction of
the justices at Westminster, to that of the justices in
Eyre ^. Afterwards, when the justices in Eyre were
superseded, by the modern justices of assize, it was
enacted, by the above statute, " that inquisitions to
*' be taken of trespasses, pleaded before the justices
" of either be?ich ^ shall be determined before the
*' justices of assize, unless the trespass be so heinous,
" that
^ 3 Blac. Com. 352. the Exchequer, to be tried
b This statute, extending in the country, there is a par-
only to the courts of King's ticular commission, autho-
Bench and Common Pleas, rising the judges of assize to
whenever an issue is joined in try it. Bui. M. Fri. 304.
OF TRIALS AT BAR. 767
" that it requires great examination; and that inqui-
" sitions of other pleas, pleaded in either bench,
*' wherein the examination is easy, shall be also de-
*' termined before them; as when the entry or seisin
" of any one is denied, or in case a single point is to
*' be inquired into: But inquisitions of many and
*' weighty matters, which require great examination,
*' shall be taken before the justices of the benches %
*' &c. ; and when such inquests are taken, they shall
*' be returned into the benches, and there judgment
*' shall be given, and they shall be enrolled." Since
the making of this statute, causes in general are tried
at Tiisi prius; trials at bar being only allowed in causes
which require great examination '^.
When the crown is immediately concerned, the
Attorney -General has a right to demand a trial at
bar ^. In all other cases, it is entirely in the discre-
tion of the court ^, governed by the circumstances of
the case ^ : Even if the parties consent, such a mode
of trial cannot be had, without leave of the court ^.
The grounds on which this trial ought to be granted,
are the great value of the subject-matter in question,
the probable length of the inquiry, and the likelihood
that
<: 2 Salk. 648. f 1 T. R. 367.
d 1 Str. 52. 644. 2 Str. 816. f> 2 Lil. P. R. 608. 1 Str.
1 Barnard. K. B. 88. S.C- 696,
<: Say. Rep. 79.
768 OF TRIALS AT BAR.
that difficulties may arise in the course of it ^, In
ejectment, it is said, the rule has been not to allow a
trial at bar, except where the yearly value of the land
is one hundred pounds'; and value alone J, or the
probable length of the inquiry, is not a sufficient
ground for it: But difficulty must concur; and in
order to obtain it upon that ground, it is not sufficient
to say generally, in an affidavit, that the cause is ex-
pected to be difficult; but the particular difficulty,
which is expected to arise, ought to be pointed out,
tliat the court may judge whether it be sufficient ''.
And in a late instance, the court refused a trial at
bar, on the mere allegation of length, and proba-
ble questions of difficulty, in a cause respecting a
pedigree ^
If one of the justices of either bench, or a master
in Chancery, be concerned, it is a good cause for a
trial at bar, be the value what it may '" : And it
is said, that such trial was never denied to any
officer of the court, nor hardly to any gentleman
at the bai' ". The plaintiff may have a trial of this
nature, by the favour of the court, though he sue
in forma pauperis °: but where the plaintiff is poor,
the
^ Per Kenyon^ arg. Doug. ' JDoe ex deyn. Angell v
437. and see 1 T. R. 363. Jngell, T. 36 G. III.
■• 1 Barnard. K. B. 141. but ■" 1 Sid. 407.
see 1 Str. 479. " 2 Salk. 651. 6 Mod. 123.
J 2 Salk. 648. S. C. but see 2 Lil. P. R.
kSay.Rep.79. and see 2 Lil. 608.
P. R. 604. 1 Barnard. K. B. « 12 Mod, 318.
141.
OV TRIALS AT BAR.
769
the court will not grant it to the defendant, unless he
will agree to take nisi prius costs, if he succeed, and
if he fail, to pay bar costs ''. In London, it is said, a
cause cannot be tried at bar, by reason of the charter
of the citizens, which exempts them from serving
upon juries out of the city '^. And where the cause
of action arises in a county -pa/atine, it has been
doubted whether this court can compel the inhabi-
tants of the palatinate to attend as jurors "■.
A trial at bar is never granted before issue joined %
except in ejectment; in which, as issue is very
seldom joined till the term is over, it would after-
wards be too late to make the application \ This
sort of trial should regularly be moved for, in the
term preceding that in which it is intended to be
had; as in Hilary for Easter^ and in Trinity for
Michaelmas tenn ", except where lands lie in Mid-
dlesex "" : and it is never allowed in an issuable term '",
unless
P2 Salk. 648. Doug. 421.
but see 2 Barnard. K. B. 146.
1 2 Lil. P. R. 607. 2 Salk.
644. But notCy the great cause
oiLockyer against the East In-
dia Comfmny was tried at bar,
(M. 2 Geo. III.') by a special
jury of merchants of London.
2 Salk. 644. 1 T. R. 366. In
that case however, the jury
consented to be sworn, and
waive their privilege. 2 Wils.
136.
r Say. Rep. 47. and see 1
1 . R. 363.
Vol. II. I
s 2 Lil. P. R. 238. 608. 12
Mod. 331. 1 Str. 696. 2 Bar-
nard. K. B. 125. IT. R. 364,
in notis.
t Say. Rep. 155.
" 2 Lil. P. R. 603. 611.
V 2 Salk. 649.
^v Fitzgib. 267. Per Buller
Just, in Colemanv. City of Lon-
don, M. 21 Geo. III. But the
case of Goodiitle ex dern. Re-
vett v. Brafiam, (4 T. R. 497.)
was tried at bar, in Hillary
term, 32 G. III.
770 OF TRIALS AT BAR.
unless the crown be concerned in interest ^, or under
very particular and pressing circumstances^. In
Easter term, they did not formerly allow more than
ten trials at bar ^ ; and they must have been brought
on, a fortnight at least before the end of it ^, to allow
sufficient time for the other business of the court.
Anciently, there was no other notice given of such
trial, than the rule in the office; but now it is said,
there must be fifteen days notice ^. The plaintiff how-
ever, as in other cases, may countermand his notice,
and prevent the cause from being tried at the day ap-
pointed; after which, it cannot be brought to trial
again, unless some new day be appointed by the
court '^ : And it is said, that a second rule cannot be
made for a trial at bar, between the same parties, in
the same term ^. Previous to giving notice, the day
appointed for the trial must be entered with the clerk
of the papers ^; and it could not formerly have been
on a Saturday \ or the last paper-day in term, except
in the king's case ^.
A trial
" 2 Lil. p. R. 603. R. IVI. 4 that now there must be the
Ann. (c). 1 Str. 52. same notice of trials at bar as
y 2 Lil. P. R. 615. 1 Str. in other cases.
52. 1 Barnard. K. B. 370. <^ R. M. 4Ann . (c).
2 2 Lil. P. R. 607. ^ Fitzgib. 267.
^Id. 609. <^ 2 Lil. P. R. 608.
b Append. Chap. XXXIV. f/rf. 602.
§5.2 Salk. 649. but see Imp. g 2 Salk. 625
K. B. 353. where it is said,
OF TRIALS AT BAR. 771
A trial at bar is had upon the 'uenire facias or dis-
tringas, &c. as at common law, without any clause
oi nisi prius ; and it is mostly by a special jury of the
county where the action is laid ''. Six days notice at
least ought to be given to the jurors before the trial ';
and if a sufficient number do not attend to make a
jury, the trial must be adjourned, and a dece?7i or octo
tales awarded, as at common law ^ ; for the parties in
this case cannot pray a tales upon the statutes ^ And
no ^vrit of alias or pluries clistri?igas, with a tales , for
the trial of an issue at bar, shall be sued out, before
the precedent writ of distringas, with a panel of the
names of the jurors annexed, shall be delivered to the
secondary of this court, to the intent that the issues
forfeited by the jurors, for not appearing upon the
precedent writ, may be duly estreated '". After a trial
at bar, if either party be dissatisfied with the verdict,
he may move for a new trial, as in other cases ".
Trials
h 2 Lil. P. R. 123. 1 Salk. ^ 5 T. R. 457, 8. 462.
405. R. T. 8 W. III. 1 Bur. > 35 Hen. VIII. c. 6. 4 £c
292. but see Doug. 438. where 5 Ph. & M. c. 7. 5 El. c. 25.
the trial was had, by consent, 14 El. c. 9, 7 & 8 W. III. c.
by a jury of a different county ; 32. § 3.
and in Wales or Berwick \x\ion ■" R. H.*15 Car. II. 2 Lil.
Tweed, Sec. or where an im- P. R. 123.
partial trial cannot be had, the ■ Sty. Rep. 462. 466. 2 Ld.
jury must come from the next Raym. 1358. I Str. 584. S. C.
English or adjoining county. 2 Str. 110". 1 Bur. 395. S. P.
» Say. Rep. 30.
772 OF TRIALS AT NISI PRIUS.
Trials at nisiprius are always had in the county where
the venue is laid, and where the fact w^as, or is sup-
posed to have been committed °; except where the
venue is laid in fVaks, or Berwick upon Tweed '', &c
or in a county where an impartial trial cannot be had,
in which cases the cause shall be tried in the next
English or adjoining county '^.
The parties being prepared, and ready to proceed
to trial, the cause is entered with the clerk of the pa-
pers, on a trial at bar, or wdth the marshal at nisi pri-
us. The old rule for entering causes in London and
Middlesex was, that unless they were entered with
the chief-justice, two days before the sittings, upon
which they were to be tried, the marshal might enter
a ne recipiatur^ at the request of the defendant or his
attorney "" : And this rule still holds, with regard to
trials at the sittings in term. But if a cause was to be
tried at the sittings after term, a ne recipiatur could
not be entered, until after proclamation made, by or-
der of the chief-justice, for bringing in the record :
and then, if the lecord was not brought in, the de-
fendant's attorney might enter a ne recipiatur '.
At present, the practice with regard to entering
causes for trial, at the sittings after term, or assizes,
stands
03 Ear. 1354. » R. H. 15 & 16 Car. II
? 2 Bur. 859. reg- 2.
a Ante, 673. 4-. ' K. M. 4 Ann. {a).
OF ENTERING THE CAUSE FOll TRIAL. 77.3
stands thus : All causes to be tried at the sittings af-
ter term, must be entered, and the records delivered
to the marshal, at the times following ; viz. the causes
in Middlesex, the first day of the sitting after term
in Middlesex; and the causes for London^ two days
before the adjournment-day in London ^ At the as-
sizes , the writ and record are entered together " : And
no writ and record of nisi prius shall be received, in
any county in England, unless they shall be deliver-
ed to, and entered with the marshal, before the first
sitting of the court, after the commission-day, except
in the county of 2''ork, and there the writs and records
shall be delivered to and entered with the marshal,
before the first sitting of the court, on the second
day after the commission- day, others vise they shall
not be received ''. And both in London and Middle-
sex, as well as at the assizes, every cause shall be
tried in the order in ^\ hich it is entered,^ beginning
with remanets, unless it shall be made out to the sa-
tisfaction of the judge, in open court, that there is
reasonable cause to the contrary; who thereupon
may
^ R. H. 34 G. III. and see and entering writs and records
■notice, M. 17 Geo. II. oi nisi fir ins, at the assizes foi-
" R. T. 10 & 11 Geo. II. the county oi .Norfolk, or city
V R. H. 14 Geo. II. In this of Ac/?-7y/c/i, is the same as in
rule, there is an exception of other counties. And for the
the county of •A'bj/o/.t ; but by fees payable to the mai'shal,
R. H. 32 G. III. that excep- for putting in the record of n?-
tion is taken away, and the d firius vA the. assizes, see R.
time allowed for delivering K. 13 Jac, I.
774 OF PLEAS, ike.
may make such order for the trial of the cause, so to
be put off, as to him shall seem just ^\ Special jury
causes are appointed for particular days: And ia
London and Middlesex, no cause can be tried by a
special jury, unless the rule for such jury be drawn
up, and the cause marked as a special jury, in the
marshal's book of causes, before the adjournment-
day after each term ".
The cause being entered, stands ready for trial, at
the bar of the court, or before the judge at nisi prius :
And previous to its coming on, a brief should be
prepared for each party, and delivered to counsel;
containing a short abstract of the pleadings, a clear
statement of the case, and a proper arrangement of
the proofs, with the names of the witnesses. The
grand rule to be observed in drawing briefs, as it is
well expressed in a late useful publication '', consists
in conciseness with perspicuity.
When the cause is called on, the defendant
may plead any matter of defence, arising after
the last continuance, or as it is called in French,
puis darrein cotitinuance, or in Latin, post ulti-
matn continuationem: and such a plea may be
pleaded,
-^ R. H. 14 Geo. II. and ^ R. T. 30 Geo. III.
.notice, M. 17 Geo. II. v 1 Sel. 472.
PUIS DARREIN CONTINUANCE. 775
pleaded, after die jury are gone from the bar; but
not after they have given their verdict ^ The last con-
tinuance, previous to the sittings or assizes, is the day
of the return of the 'uenire facias, from whence the
plea is continued, by the award of the distringas, to
the next term, unless the chief-justice or judges of
assize shall first come on the day of?iisiprius ''i And
on this day, if any matter of defence has arisen after
the last continuance, it may be pleaded by the de-
fendant; as that the plaintiff has given him a release,
or is a bankrupt, outlawed, or excommunicated;
or that there has been an award made, on a refer-
ence after issue joined ''. So it may be pleaded,
that ^ifeme plaintiff is married, or in cledt by an ad-
ministrator, that the plaintiff's letters of administra-
tion are revoked, puis darrein continuance ".
These pleas are twofold, in abatement and in
bar ''. If any thing happen, pending the writ, to
abate it, this may be pleaded puis darrein continu-
ance, though there be a plea in bar ; for this only
waives all pleas in abatement, that were in being at
the time of the bar pleaded, and not subsequent
matter :
z Doc. fil- 177. Pearson v. ''2 Esp. Cas. M Pri. 504,
Parkins, H. 3 Geo. I. Bui. M. c Bui. M Pri. 309. and see
^".310. Com. Dig. lit. j^batetncnt, T.
^ Bui. M. Pri. 310. and see 24.
Dyer, 361.2 Lutw. 1143.1 'i Gilb. C. P. 105. Aleyn,
Blac. Rep. 497. for the time 66.
fo which the plea is continued
776 OF PLEAS
matter: but though it be pleaded in abatement, ytt
after a former bar pleaded, it is peremptory, as well
on demurrer as on trial; because after pleading in
bar, the defendant has answered in chief, and there-
fore can never have judgment to answer over ^. Af-
ter a plea in bar, if the defendant plead a plea puis
darrein continuance, this is a waiver of his bar, and no
advantage shall afterwards be taken of it \
The great requisite of these pleas is certainty ^ and
it is not good pleading to say generally, that after
the last continuance such a thing happened, but the
time and place must be precisely alleged ^. The
form of the plea, if at the assizes, is as follows : And
71010 at this day, that is to say, on ^c. comes the said
C. D. by S. S. his counsel, and says (if in bar) that
the said A. B. ought not further to maintain this
action against him the said CD. because he says, that
after the day of last past, from which day
imtil the day of in tertn next, fun-
less the justices of our lord the king, assigned to hold
the assizes of our lord the king, in and for the county
of should first come on the day of at
in the said county of ,) the action aforesaid
is continued, to ivit, on £s?c. at ^c. the said A. B. by
his deed, dated ^c. did release ^c. ; and so shew the
particular
'^ Gilb. C. P. 105. Aleyn. 261. Freem. 1 12. 2 Lutw.
66. Freem. 252. 1 143. 2 Salk. 519. 2 Wils.
f 1 Salk. 178. 139.
s Yelv. 141. Crn. Jar. h Bui. A7. Pri. 309.
PUIS DARREIN CONTINUANCE. 777
particular matter '. In abatement^ the plea concludes,
by praying judgment of the ivrit, and tliat the same
may be quashed^ \ or if the writ is abated de facto, by
praying judgment if the court will further proceed^:
In bar, the conclusion of the plea is, that the plaintiff
ought not further to maintain his action, and not, that
the former inquest should not be taken; because it is
a substantive bar of itself, and comes in place of the
former, and therefore must be pleaded to the action '.
There are likewise some pleas, which may be
pleaded at nisi prius, that cannot properly be termed
pleas j&«i5 darrein continuance, because the matter
pleaded need not be expressly mentioned to have hap-
pened after the last continuance ; as in trespass, that
the plaintiff was outlawed for felony °' : So the de-
fendant may plead, that in feme plaintiff was covert on
the day of the writ purchased; but he cannot plead,
that she took baron pending the writ, without pleading
it after the last continuance : the diversity seems to be,
between such things as disprove the writ in fact,
and such as disprove it in law ".
Pleas
ifiul. M. Pri. 310. 1143. Bui. A7. Pri. 310. but
J Gilb. C. p. 105. 2 Lutw. see Dyer, 361. in marg.
1143. "> Thel. Dig. 204.
k 3 Lev. 120. Bui. JVi. Pri. " Bro. Abr. tit. Continuance,
31 1. ill. 57. Bui. Xi. Pri. 310.
» Cro. Eliz. 49. 2 Lutw.
Vol. II. Q
778 OF PLEAS PUIS, &c.
Pleas after the last continuance being productive
of delay, are subject to the same sort of restraints as
pleas in abatement: They must be verified on oath,
before they are allowed °; and they cannot be amend-
ed, after the assizes are over ^ : There can be but one
plea puis darrem continuance '^ ; and such a plea can-
not be pleaded after a demun*er ^ But if a plea puis
darrein continuance be filed, and verified on oath, the
court cannot set it aside on motion, but are bound to
receive it '.
When a plea/?z/ij darrein continuance is put in at the
assizes, the plaintiff is not to reply to it there; for the
judge has no power to accept of a replication, nor to
try it, but ought to return the pica, as parcel of the
record of nisi prius ^ ; and if the plaintiff demur, it
cannot be argued there ". Where a plea is certified
on the back of the postea^ and the plaintiff de-
murs, if the defendant, on the expiration of a rule
given
° Freem. 252. 1 Str. 493. of the judge, whether he will
p Yelv, 181. Freem. 252. accept such plea or not, that
Bui. Alf.' Pri. 309. is, whether he will or will not
5 Bro. Abr. tit. Continuance^ proceed in the trial. And in
pi. 5. 41. Jenk. 160. Gilb. Say. Rep. 268. aplea/^M^■srfGr-
C. P. 105. rein continuance was set aside,
«■ 1 Str. 493. cites Mo. 871. because the matter of it arose
1 Ld. Raym. 266. but see before the last continuance.
Hob. 81. contra. t Yelv. ISO. Cro. Jac. 261.
^2 Wils. 137. 3T.R. 554. S. C. Freem. 252. 2 Mod. 307.
but see Jenk. 159. Yelv. 180. S. C.
and Bui. M. Pri. 309. where « 2 Mod. 307.
it is said to be in the breast
I
or CHALLENGING JURORS. 779
given for him to join in demurrer, refuses to do so,
the plaintiff may sign judgment ''.
Previous to swearing the jury, the plaintiff may
withdra\v the record, and by that means prevent the
cause from being tried : But otherwise the trial pro-
ceeds; and as the jury are called, they may be chal-
lenged.
Challenges are of two sorts; first, to the array; and
secondly, to the polls. Challenges to the array are at
once an exception to the whole panel, in which the
jury are arrayed, or set in order by the sheriff in his
return ; and they may be made upon account of par-
tiality, or some default in the sheriff, or his under-
officer who arrayed the panel "\ And generally
speaking, the same reasons that before awarding the
venire, w-ere sufficient to have directed it to the co-
roners or elisors, will be also sufficient to quash the
array, when made by an officer, of whose partiality
there is any good ground of suspicion. Also, though
there be no personal objection against the sheriff, yet
if he arrays the panel at the nomination, or under
the direction of either party, this is good cause of
challenge to the array.
Challenges to the polls, in capita, are excep-
tions to particular jurors; and according to Sir
Edward
^ Freem. 252 . BuJ. M. Pri. 311. ^ Cowp. 112.
780 OF CHALLENGING JURORS.
EdiMard Coke^, they are of four kinds ; first, propter
honoris respectum^ as if a lord of parliament be im-
panneled on a jury, in which case he may challenge
himself, or be challenged by either party. Secondly,
propter defectum^ as if a jurj- man be an alien bom, or
a slave or bondman ; so if he be not resident in the
county, or have not the necessary qualification of
estate. All incapable persons, as infants, idiots, and
persons of non-sane memory, are likewise excluded
upon this ground y. Thirdly propter affectum^ as that
a juror is of kin to either party, within the ninth de-
gree^; that he has been arbitrator, or declared his
opinion on either side ; that he has an interest in the
cause *; that there is an action depending between
him and the party ; that he has taken money for his
verdict, or even eat and drank at either party's ex-
pence ; that he has formerly been a juror in the same
cause; that he is the party's master, servant, tenant ^,
counsellor, steward, or attorney, or of the same so-
ciety or corporation with him. All these are prin-
cipal causes of challenge: Besides which, there
are challenges to the faiiour, where the party ob-
jects only on account of some probable grounds of
suspicion, as acquaintance, and the like; the va-
lidity of which must be left to the determination of
triers,
X 1 Inst. 156. a 3 Bur. 1856.
y Gilb. C. P. 95. «»Gilb.C. P. 95.
^ Finch. L. 401.
OF SWEARING JURORS. 781
irierSf who, in case the first man called be challenged,
are two indifferent persons named by the court; and
if they try one man and find him indifferent, he shall
be sworn ; and then he and the tv\^o triei's shall try
the next; and when another is found indifferent and
sworn, the two triers shall be superseded, and the two
first sworn on the jury shall try the rest "". Fourthly,
a juror may be challenged propter delictum, as for a
conviction of treason, felony, perjury, or conspiracy;
or if, for some infamous offence, he has received
judgment of the pilloiy, tumbrel, or the like, or to
be branded, whipped or stigmatized; or if he be
outlawed or excommunicated, or hath been attainted
of false verdict, pnpjmmire, or forgery. A juror may
himself be examined on his voire dire, with regard to
such causes of challenge, as are not to his dishonour
or discredit; but not with regard to any crime, or
any thing which tends to his disgrace or disadvan-
tage*^.
By the balloting act, we may remember, the
names and additions of the jurors are to be written
on pieces of parchment or paper, of equal size,
and delivered to the marshal, by the under-sheriff
or his agent; and are to be rolled up, by the di-
rection and care of the marshal, all as near as may
be
= Co. Lit. 158. C. P. Chap. 8. Bac. Abr. tit.
^ For more of challenges, Juries, (E). 3 Blac. Com =
see Co. Lit. 156, &c. Gilb. 358, &c.
782 OF SWEARING JURORS.
be ill the same manner, and put together in a box or
glass, to be provided for the purpose *. And by the
same act ^, *' when any cause shall be brought on to
" be tried, some indifferent person, by direction of
*' the court, may and shall, in open court, draw out
" twelve of the said parchments or papers, one after
*' another J and if any of the persons whose names
" shall be so drawn, shall not appear, or be challeng-
" ed and set aside, then such further number, until
" twelve persons be drawn who shall appear, and af-
" ter all causes of challenge, shall be allowed as fair
" and indifferent; and the said twelve persons so first
*' drawn and appearing, and approved as indifferent,
" their names being marked in the panel, and they
" being sworn, shall be the jury to try the said cause;
" and the names of the persons so drawn and sworn,
" shall be kept apart by themselves, in some other
" box or glass to be kept for that purpose, till such
*' jury shall have given in their verdict, and the same
" is recorded, or until such jury shall, by consent of
*' the parties, or leave of the court, be discharged;
*' and then the same names shall be rolled up again,
" and returned to the former box or glass, there to
" be kept, with the other names remaining at that
*' time undrawn, and so toties qiiotiesy as long as any
*' cause remains then to be tried."
Where
^Jinte,724,, 5. f 3 Geo, IT. c. 25. $ 1 1.
i
• OF TALES-MEN. 785
Where a 'oiew is allowed in any cause, it is pro-
vided by the same statute s, that the jurors who took
the view, or such of them as shall appear, shall be
first sworn upon the jury to try the cause, before any
drawing as aforesaid; and so many only shall be
drawn, to be added to the viewers who appear, as
shall, after all defaulters and challenges allowed, make
up the number of twelve, to be sworn for the trial of
the cause.
At common law, if a sufficient number of jury-
men did not appear at the trial, or so many of them
were challenged and set aside, as that the remainder
would not make up a full jury, there issued a writ to
the sheriff, ofundecim, decetij^ or octo tales, according
to the number that was deficient, in order to com-
plete the jury '': And this is still necessary, on trials
at bar '. But now, by the statute 3^ Men. VIII. c. 6.
§ 6, 7, 8. (extended to qui tarn actions, by the 4 & 5
Ph. & M. c. 7.) " the justices of assize or nisiprius>,
*' upon request made by the plaintiif or defendant, are
'' authorized to command the sheriff', or other minis-
'' ter to whom the making of the return shall apper-
" tain, to name and appoint, as often as need shall re-
'* quire, so many of such other able persons of the
" said county, then present at the said assizes or
^' TusipriuSy as shall make up a full jury; which per-
" sons
x^U. '^ Gilb. C. P. 73. ^ 5 T. R. 457, 8. 462.
"784 OF TALES-MEN.
*' sons shall be added to the former panel, and their
" names annexed to the same; and that the parties
" shall have their challenges to the jurors so named,
" added and annexed to the said former panel, as if
" they had been impannelcd upon the 'oenire facias ;
" and that the said justices shall and may proceed to
" the trial of every such issue, with those persons
*' that were before impanneled and returned, and
" with those newly added and annexed to the said
" former panel, in such wise as they might or ought
*' to have done, if all the said jurors had been return-
*' ed upon the writ of venire facias; and that every
" such trial shall be as good and effectual in the law,
*' to all intents and purposes, as if such trial had been
" had by twelve of the jurors impanneled and re-
'* turned upon the writ of venire facias.''^
The qualification of a tales-many in point of estate,
is only^T;*? pounds per annum K And, by the 7 & 8
l^F. III. c. 32. § 3. the sheriff is directed to return
such persons, to serve upon the tales, as shall be re-
turned upon some other panel, and then attending the
court. Hence it is usual to draw their names out of
the box ; though where it is desired by the gentlemen
of the panel who appear, and consented to by the par-
ties, the sheriff may return such other gentlemen as
can be procured to attend ''. The pl^tiff may avoid a
nonsuit,
J Stat. 4 & 5 W. & M. c. 24. § 18. k Bui. M. Pri. 305.
OF BILLS OP EXCEPTIONS. 785
nonsuit, by refusing to pray a tales * : And after a
juror has been challenged on the principal panel, he
ought not to be sworn as a tales-man ™.
After the jury are sworn, the cause is opened, and
the trial proceeds, unless the parties agree to imth-
draw a juror "; which is frequently done, at the re-
commendation of the judge, where it is doubtful
whether the action will lie; and in such case the
consequence is, that each party pays his own costs.
In the progress of the trial, either party, if there
be occasion, may tender a bill of exceptions, or de-
mur to the evidence. To understand the nature of
these proceedings, it should be observed, that in
the first stage of that process under which facts are
ascertained, the judge decides whether the evidence
offered conduces to the proof of the fact, which is to
be ascertained; and there is an appeal from his judg-
ment, by a bill of exceptions. The admissibility of
the evidence being established, the question how far
it conduces to the proof of the fact which is to be
ascertained, is not for the judge to decide, but for
the jury exclusively ; with which the judges interfere
in
' 1 Str. .707. where a juror is withdrawn,
'" Id. 640. 2 Ld. Raym. see Append. Chap. XXXVI 1.
1410. S.C. §26.
" For the form of the fiostea.
Vol. II. R
786 OF BILLS OF EXCEPTIONS.
in no case, but where they have in some sort sub-
stituted themselves in the place of the jury in at-
taint ^ upon motions for new trials. When the jury
ha^e ascertained the fact, if a question arises whether
the fact thus ascertained, maintains the issue joined
between the parties, or in other words, whether the
law arising upon the fact (the question of law in-
volved in the issue depending upon the true state of
the fact,) is in favour of one or other of the parties,
that question is for the judge to decide. Ordinarily
he declares to the jury, what the law is upon the
fact which they find, and then they compound their
verdict of the law and fact thus ascertained. But if
the party wishes to withdraw from the jury, the ap-
plication of the law to the fact, and all consideration
of what the law is upon the fact, he then demurs in
law upon the evidence; and the precise operation
of that demurrer is, to take from the jury, and refer
to the court, the application of the law to the fact °,
A bill of exceptions is founded upon some objec-
tion in point of law, to the opinion and direction
of the court, upon a trial at bar, or of the judge at
nisi prills^ either as to the competency of witnesses ^ ,
the admissibility of evidence '^, or the legal effect
of
« 2 H. Blac. 205, 6. P 3 T. R. 27. q 1 Salk. 284.
OF BILLS OF EXCEPTIONS. 787
of it % or for over-ruling a challenge, or refusing a
demurrer to evidence % &:c. In these cases it is en-
acted, by the statute fFestm. 2. (13 Edw, I.) c. 31.
that " if the party write the exception, and pray that
" the justices may put their seals to it for a testimo-
" ny, the justices shall put their seals; and if one
" will not, another shall: And if the king, on com-
*' plaint made of the justices, cause the record to
" come before him, and the exception be not found
*• in the roll, and the party shew the exception writ-
" ten, wirii the seal of the justice affixed, the justice
'* shall be commanded that he appear at a certain
" day, to confess or deny his seal; and if the justice
*' cannot deny his seal, judgment shall be given,
*' according to the exception, as it may be allowed
" or disallowed." This statute extends to trials at
bar, as well as those at nisi prius; but it has been
doubted, whether the statute extends to criminal
cases '. If a judge allow the matter to be evidence,
but not conclusive, and so refer it to the jury no
bill of exceptions will lie; as if a man produce
the probate of a will, to prove the devise of a term
for years, and the judge leave it to the jury; be-
cause
f T. Raym. 404. T. Jon. Show. P. C. 120. Append.
146. S. C. 1 Blac. Rep. 555. Chap. XXXVII. § 46.
3 Bur. 1693. S. C. Cowp. ' See the cases referred lo
161. 2 Blac. Rep. 929. S. C. in 1 Bac. Abr. 325. Wiiles,
■^ Cro. Car. 341. and see 535. Bui. AV. P;-f. 316.
788 OF BILLS OF EXCEPTIONS-
cause though the evidence be conclusive, yet the
jury may hazard an attaint^ if they please, and the
proper ^vay had been, to have demurred to the evi-
dence ".
The bill of exceptions must be tendered at the
trial: for if the party then acquiesce, he waives it,
and shall not resort back to his exception, after a
verdict against him, when perhaps, if he had stood
upon his exception, the other party had more evi-
dence, and need not have put the cause on that
point. The statute indeed appoints no time ; but the
nature and reason of the thing require, that the ex-
ception should be reduced to writing, when taken
and disallowed, like a special verdict, or demurrer
to evidence : not that it need be drawn up in form,
but the substance must be reduced to writing, while
the thing is transacting, because it is to become a
record ".
The bill of exceptions is either tacked to the
record, or not: If it be not tacked to the record,
it is necessary to set out the whole of the proceed-
ings, previous to the trial; but otherwise, it be-
gins with the proceedings after issue joined ". And
in either case, it goes on to state, according to the
circumstances, that a witness was produced "^ to
prove certain facts; the particular evidence offer-
ed,
■^ T. Raym. 404, a. T. Jon. ^" Bui. Az. Pri. 317.
146. S.C. -3T.R. 27.
V 1 Salk. 283, 9.
OF BILLS Of liXCEPriOKS. VS9
ed -, or given to the jury, in support of the whole or
a part of the case; or that a challenge was made, or
demurrer to evidence tendered; the allegations of
counsel, respecting the competency of the witness,
the admissibility of the evidence, or the legal effect
of it, &c. ; the opinion and direction of the court or
judge thereon; the verdict of the jury; and the ex-
ception of the counsel, to the opinion given ^ And
where the bill of exceptions respects the legal effect
of evidence, the conclusion is as follows: " And
' inasmuch as the said several matters, so produced
' and given in evidence for the party objecting, and
' by his counsel objected and insisted on, do not ap-
' pear by the record of the verdict aforesaid, the said
' counsel did then and there propose their aforesaid
' exception to the opinion of the judge, and request-
' ed him to put his seal to this bill of exceptions,
' containing the said several matters so produced
' and given in evidence for the party objecting as
' aforesaid, according to the form of the statute in
' such case made and provided; and thereupon the
' aforesaid judge, at the request of the said coimsel
" for
y 1 Lutw. 984. 1 Salk. 284. Mostyn, XL Stat. Tri. 187, 8.
^ For precedents of bills of And for precedents of a bill of
exceptions, as to the legal ef- exceptions, as to the legal ef-
fect of the ivhfjle of the evi- feet of evidence in support of
dcnce, see Brownl. 129. il/oney di particular fact, see Brownl.
and others v. Z-cacA, Bui. A7. 131. Append. Chap. XXXVII.
Pri. 317. and Fabri^as v. § 46.
790 OF BILLS OF EXCEPTIONS.
'* for the party objecting, did put his seal to this bill
" of exceptions, pursuant to the aforesaid statute in
'* such case made and provided, on the day
'' of in the year of the reign, &c/"
On tendering the bill, if the exceptions therein
are truly stated, the judges ought to set their seals,
in testimony that such exceptions were taken at the
trial: but if the bill contain matters false, or untruly
stated, or matters wherein the party was not over-
ruled, the judges are not obliged to affix their seals;
for that would be to command them to attest a falsi-
ty ^. If the judges refuse to sign the bill of excep-
tions, the party grieved may have a writ, grounded
upon the statute, commanding them to put their
sGcds, juxlajhrfnam statuti'^^ &c. This writ contains
a surmise of an exception taken and over-ruled, and
commands the justices, that if it be so, they put their
seals '^ ; upon which, if it be returned quod non ita
est, an action lies for a false return, and thereupon
the surmise will be tiied, and if found to be so,
damages will be given; and upon such recovery,
there issues a peremptory writ *=.
When the bill of exceptions is sealed, the truth
of the facts contained in it can never afterwards be
disputed ^ And judgment being entered, a writ
of
^ Bui. jYi. Pri. Sir. d Reg, Brcv. 182.
^ Show. P. C. 120. e 2 Inst. 427.
c 2 Inst. 427. Bui. M. Pri. f Show. P. C. 120.
516.
OF DEMURRERS TO EVIDENCE. 791
of error is brought, to remove the proceedings into
the court above; for a bill of exceptions is only to
be made use of upon a writ of error : And therefore,
where a writ of error will not lie, there can be no
bill of exceptions ^. Upon the return of the writ of
error, the judge is called upon by writ, either to
confess or deny his seal*"; and if he confess it, the
proceedings being entered of record, the party as-
signs error': If the judge deny his seal, the plain-
tiff in the writ of error may take issue thereupon,
and prove it by witnesses *".
The judgment on the wTit of error, as in other
cases, is either that the former judgment be affirmed,
or reversed. If it be reversed, a vefiire de novo is-
sues; which shall be made returnable in this court,
although the judgment was given in the Common
Pleas'.
A demurrer to evidence is a proceeding, by
which the judges of the court in which the action
is depending, are called upon to declare what the
law is, upon the facts shewn in evidence, analo-
gous to the demurrer upon facts alleged in plead-
ing '". The reason for demurring to evidence is,
that
g 1 Salk. 284. Rex v. Inha- k 2 Inst. 428.
bitanta of Preston^ Bui. jYi.Pri. i 3 T. R. ZQ.
316. 1 Blac. Rep. 679. Cowp. «" 2 H. Blac. 205. and see
501. but see 2 Lev. 236. 3 Salk. 122. 4 Bac. Abr. 136.
^ Rast. Ent. 293. b. 3 Bur. 3 Blac. Com. 372. and see
1693. 1 Blac. Rep. 556. S.C. Append. Chap. XXXVII. ^
' 2 Lutw. 905, 6. 42, gcc.
792 OF DEMURRERS TO EVIDENCE.
that the jury, if they please, may refuse to find a
special verdict, and then the facts never appear on
the record " : And the question upon a demurrer to
evidence being, whether the evidence offered be suf-
licient to maintain the issue, the party, on such de-
murrer, cannot take advantage of any objection to
the pleadings °. A demurrer to evidence is not al-
lowed in the king's case ; and therefore if a doubt
arise, upon the effect of the evidence, the judge
must direct the jury to find the matter specially ''.
If a matter of record^ or other matter in writing,
be offered in evidence, to maintain an issue joined
between the parties, all the books agree, that the ad-
verse party may insist upon the jury being discharged
from giving a verdict, by demurring to the evidence,
and obliging the party offering the same to join in
demurrer, or waive the evidence '^ : And the reason
given for it is, that there cannot be any variance of
matter in writing'. The books also agree, that if
parol evidence be offered, and the adverse party de-
mur, he who offers the evidence may join in demur-
rer, if he will. But the languiige of the old books is
very indistinct upon the question, whether t|ie party
offering
" Per BuUer, Just. Doug,-. <\ 2 H. Blac. 206.
134. -Cro.Eliz. 7.'?.'?. h Co. 104
o 7^.218. S. C.
V Co. Lit. 72, 5 Co. 104.
OF DEMURRERS TO EVIDENCE. 79S
offering jf;^/(7/ evidence shall be obliged to join in
demurrer. In a late case % which came before the
House of Lords, it was observed, in delivering" the
opinion of the judges, that /?^ro/ evidence is some-
times certain, and no more admitting of any variance,
than a matter in writing; but it is also often loose
and indeterminate, often circumstantial. The reason
for obliging the party offering evidence in writing, to
join in demurrer, applies to the first sort of parol evi-
dence ; but it does not apply to parol evidence that is
loose and indeterminate, which may be urged with
more or less effect to a jurj^ ; and least of all, will it ap-
ply to evidence of circumstances, which evidence is
meant to operate beyond the proof of the existence
of those circumstances, and to conduce to the proof
of the existence of other facts. In such cases how-
ever, if the party who demurs will admit the evidence
of the fact, which evidence is loose and indetermi-
nate, or in the case of circumstantial evidence, if he
will admit the existence of the fact, which the cir-
cumstances offered in evidence conduce to prove,
there will then be no more variance in this parol evi-
dence, than in a matter in writing; and in such case,
the party shall be allowed to demur, and his adver-
sary must join in demurrer. But on a demurrer to
circu7nstantial evidence, unless the party demurring
will
"5 Gibnon andJo/imon v. Hunter, 2 II. Blac 187.
Vol. II. S
^94 OF DEMURRERS TO EVIDENCE.
\
will distinctly admit upon the record, every fact and
every conclusion which the evidence offered con-
duces to prove, it is not competent for him to insist
upon the jury being discharged from giving a ver-
dict, by demurring to the evidence, and obliging the
party offering it to join in demurrer ^ : though, if the
party offering the evidence consent to waive the ob-
jection, and join in demurrer, every fact is to be con-
sidered by the court as admitted, which the jury
could infer in his favour, from the evidence demur-
red to'': And the court will, if they can, give judg-
ment upon such evidence '' ; but otherwise a venh-e
de 1101)0 must be awarded '"^
The whole operation of entering the matter upon
record, and conducting a demurrer to evidence, is
and ought to be under the direction and control of
the court, upon a trial at bar, or of the judge at 7iisi
pr'ius "■ ; subject however to an appeal, by a bill of ex-
ceptions, if the demurrer be refused ■ . And where a
demurrer to evidence is admitted, it is usual for the
court or judge to give orders to the associate, to take
a note of the testimony; which is signed by the
counsel on both sides, and the demurrer is affixed to
the postal ^ Upon a demurrer to evidence, we have
seen.
t Gibson ^x\dL Johnson v. Hun- ^ 2 H. Blac. 209.
ttr, 2 H. Blac. 187. and see -^ /J. 268.
Alfvn, 18. Sty. Rep. 22. 34, y /rf. z/^irf. Cro. Car. 341.
S. C. '^ Bui. ^'V. PH. 313. and see
u Doug. 119. Append. Chap. XXXVII. C
V Id. ibid. 42.
OF THE jury's WITHDRAWING. 795
seen, the damages may be assessed conditionally by
the principal jury, before they are discharged; or
they may be assessed by another jur}^, upon a writ of
inquiry, after the demurrer is determined*: And it
is said to be the most usual course, when there is a
demurrer to evidence, to discharge the jury without
further inquiry ''.
The evidence being gone through, and summed
up by the judge, the jury, if they think proper, may
ivithdraiv from the bar, to dehberate on tlieir verdict.
And they are allowed to take with them, by leave of
the court, letters patent and deeds under seal, and
the exemplification of witnesses in Chancery, if dead;
but wi'itings or books which are not under seal, ought
not to be delivered to the jurors, without the assent
of both parties", nor any evidence but what was
shewn to the court''. If the jury take with them
patents, deeds, &c. without leave of the court, or
writings not under seal, books, &c. which have been
given in evidence, without the assent of both parties,
this, however irregular, will not avoid the verdict;
though they be taken by tlie delivery of the party
for
^ Jnte, 517, 18. Plowd. 410. 44.
1 Ld. Raym. 60. Doug. 222. c Cro. Eliz. 411.
*> Cro. Car. 143. and sec d o Rol. Abr. 686,
Append. Chap. XXXVII. §
796 or A NONSUIT.
for whom the verdict was given ' : So though one of
the jury shew a writing, which was not given in evi-
dence, to his companions^. But if the paity for
whom the verdict is given, or any for him, deliver to
the jury, after they are gone from the bar, a letter or
other writing not given in evidence, it will avoid the
verdict': And so if they examine witnesses by
themselves, w^ho were examined before, though to
the same evidence as was given in court ^. But they
may come back into court, to hear the evidence of a
thing whereof they are in doubt '. The objection in
these cases must be returned upon tlie postea^ or
made parcel of the record; otherwise it will not be a
ground for staying judgment, or bringing a writ of
error ).
When the jury have agreed, they return to the
bar: but before they gave their verdict, it was for-
merly usual to call or demand the plaintiff, in order
to answer the amercement, to which by the old law
he was liable, in case he failed in his suit ^'; and it is
now usual to call him, whenever he is unable to make
out his case, either by reason of his not adducing
evidence in support of it, or evidence arising in the
proper county. The cases in which it is necessary
that
«^ Cro. Eliz. 411. and see 2 ■ Rol. Abr. 676.
Salk. 645. iCro. Eliz. 616. and see
fCro. Eliz. 616. Bui. A?. Pn. 308.
K Co. Lit. 227. b. , J^ 3 B!ac. Com. 376.
hCro. Eliz. 411,12.
OF A NONSUIT. 797
that the evidence should arise in a particular county,
are either where the action is in itself local ; or made
so by act of parliament, as in actions upon penal sta-
tutes, &c. or where, upon a motion to change or re-
tain the venue, the plaintiff undertakes to give mate-
rial evidence, in the county v\ here the action was
brought '. And there is this ad\'antage attending a
nonsuit; that the plaintiff, though subject to the pay-
ment of costs, may afterwards bring another action
for the same cause, which he cannot do, after a ver
diet against him.
A nonsuit can only be at the instance of the defen-
dant : And therefore where the cause at nisi prim
was called on, and jury sworn, but no counsel, at-
tornies, parties, or witnesses appeared on either side,
the judge held, that the only way was to discharge
the jury ; for nobody has a right to demand the plain-
tiff, but the defendant, and the defendant not de-
manding him, the judge could not order him to be
called'". In an action against ^^'ZJ(?r^/ defendants, the
plaintiff must be nonsuited as to all, or none of them;
and therefore, if one of two defendants suffer judg-
ment by default, and the other go to trial, the plain-
tiff cannot be nonsuited as to him; but such defen-
dant
1 2 Blac. Rep. 1039. but see "^ 1 Str. 267. see ajso 2 Str.
:^T. R. 281. 1117.
798 OF DAMAGES.
dant must have a verdict, if the plaintiff fail to make
out his case ".
The plaintiff in no case is compellable to be non-
suited"; and therefore, if he insist upon the matter
being left to the jury, they must give in their verdict^
which is general or special. A general verdict is a
finding by the jury, in the terms of the issue, or
issues referred to them ; and it is either wholl}' or in
part, for the plaintiff or for the defendant. If it be for
the plaintiff, or for the defendant in replemn p, the
jury should regularly assess the damages : But when
the plaintiff is nonsuited on the trial of an issue, he
cannot have contingent damages assessed for him on
a demurrer''; though, when the plaintiff in replemn
is nonsuited, the jury may assess damages for the
defendant ^
Damages are a pecuniary compensation for an in-
jury ; and may be recovered in every personal action
that lies at common law : But in an action for a pe-
nalty given by statute to a common informer, they
are not recoverable ' ; nor for delay of execution, in a
scire facias founded on the statute of Westm, Q.
c. 45 '.
In
" 3 T. R. 662. and see 1 ed on a distress for rent, pur-
Bur. 358. Cowp. 483. suant to the statute 17 Car,
o 2 T. R. 281. II. c. 7. In other cases, the
P If an issue be found for jury find only damages,
the defendant in refilevi?i, the i 1 Str. 507.
jury, besides damages, may "■ Comb. 11. 5 Mod. 76.
find the value of the distress, ^ i RqI. Abr. 574. 4 Bur.
and the amount of the rent in 2018. 2489.
arrear, if the action was found- * 3 Bur. 179 1.
OF DAMAGES. 799
In actions purely real, no damages are recover-
able '', as in a writ of right, &c. ; but damages may
be recovered in actions of a mixed wdXwYt, as in eject-
ment ' , or in an assize, or writ of entry in nature of
an assize of 7io'uel d isseis i?j, 'dgsiinst the disseisor ''' :
And by the statute of Gloucester , (6 £dw. 1.) c. 1.
damages were given in an assize, or writ of entry
upon a novel disseisin, against the alienee, or him that
was found tenant after the disseisor; and also in all
cases where a man recovered by assize of 7Jiort
d'' ancestor '', or upon writs of cosinage, aiel and be-
saiel, or against a tenant upon his own intrusion or
act. By the statute Westm. 2. (13 Edw. 1.) c. 26.
double damages are recoverable upon a writ of re-
disseisin; and by the 3 & 4 Edijo. VI. c. 3. ^4.
treble damages may be recovered in an assize of
novel disseisin, upon the statutes respecting the im-
provement of wastes ^, &c. In a writ of dovjer wide
nihil habet, the widow is entitled, by the statute of
Merton, (20 Hen. III.) c. 1. to recover in damages
the value of her dower, from the time of the death
of
■^ Booth, on r<?a/' Actions, 74. was recovered against the
^ 3 Blac. Com. 200, 1. chief-lord.
^•^ 2 lust. 286. 10 Co. Pil- y See also the statutes of
fold's case; and see 3 Blac. Westm. 1. 3 Edw. I. c. 24.
Com. 187, 8. Westm. 2. 13 Edw. I. c. 25.
•^ Damai>;es had been be- 1 Ric. II. e. 9. 1 Hen. IV.
fore given in an assize oi mort c. 8. and 4 Hen. IV. c. 8. by
d'ancestor, by the statute of which double or treble dama-
- Marlbridge, 52 Hen. III. c. ges are given upon disseisir.-
16. in cases where the land in particular cases.
300 OF DAMAGES.
of her husband \ In waste, treble damages are re-
coverable by the statute of Gloucester, (6 Edw. I.)
c. 5. to which costs are superadded, by the 8 &: 9
/v. III. c. 11. § 3. But in an action of ivaste, on
the statute of Gloucester, against tenant for yeai's,
for converting three closes of meadow into garden
ground, if the jury give only one farthing damages
for each close, the court will give the defendant
leave to enter up judgment for Iiimself ''. And by
the statute M'^estJii. 2. (13 Edw. I.) c. 5. \ 3. da-
mages are given in writs of quare impedit, and
darrein presentment.
In actions upon the case, trespass, reple'uin, &c.
the damages at common law are single, and propor-
tioned to the injury complained of; but double or
treble damages are sometimes given by statute, in
cases \\ here single damages were before recoverable,
as upon the 2 Hen. IV. c. 11. for wrongfully suing
in the admiralty court'', upon the 8 Hen. VI. c. 9.
for a forcible entry *", and upon the 2 h 3 ff. h M.
sess. 1. c. 5. for rescuing a distress for rent^.
In an action of debt for a penalty, the damages
at common law are merely nominal^. But where
an
' For the construction of '^ Bro. Dam. fil. 70. 10 Co.
this statute, and in what cases 115. b. Co. Lit. 257. b. 2
the widow is entitled to da- Inst. 289. Cro. Eliz. 582.
mages thereon, see Co. Lit. ^ Carth. 321. 1 Salk. 205.
32, 3. 1 Ld. Raym. 19. 342. Skin.
a 2 Bos. & Pul. 86. 555. Holt, 172. S. C.
b 10 Co. 116. Dyer, 159 b. « 6 T. R. 303. but see 2
Cavth. 297 T. R. 388. 7 T. R, 446.
GF DAMAGES. 801
an action is brought upon a bond, for the non-per-
formance of covenants, the jury, upon the trial or a
writ of inquiry, are, by virtue of the statute 8 &: 9
W. III. c. 11. ^ 8. to assess not only the ordinary
damages and costs of suit, but also damages for
such of the breaches as the plaintiff proves; and
judgment shall be entered in the common form,
which shall afterwards remain as a security to the
plaintiff, against future breaches. In an action on a
charter-party, damages may be recovered beyond
the amount of the penalty ^; and w here the precise
sum is not the essence of the agreement, the quan-
tum of damages may be assessed by the jury; but
where the precise sum is fixed and agreed upon be-
tween the parties, that sum is the ascertained da-
mage, and the jury are confined to it ''.
On a declaration consisting of several counts, the
jury may either assess intire damages, on the whole
or part of the declaration, or they may assess several
damages on the different counts '. If intire damages
be assessed, and any one or more of the counts be
bad or inconsistent, judgment may be an'csted^; be-
cause it must be intended, that some part of the da-
mages
8 1 Blac. Rep. 395. and see ' 1 Rol. Abr. 570. /il. I.
3 Bur. 1345. j Say. Ouju. ch. 25. bur see
^ 4 Bur. 2225. and see 2 the distinction taken in WH-
Bos. 8c Ful. 346, les, 44o.
Vol. II. T
802 OP DAMAGES.
mages was assessed upon those counts. In order to
cure this defect, if there was evidence given at the
trial upon such of the counts only as are good and
consistent, a general verdict may be altered, from
the notes of the judge, and entered only on those
counts ^ ; but if there was any evidence, which ap-
plied to the other bad or inconsistent counts, (as for
instance in an action for words, where some action-
able words are laid, and some not actionable, in dif-
ferent counts \ and evidence given of both sets of
words, and a general verdict,) there the postea can-
not be amended ; because it would be impossible few
the judge to say on which of the counts the jury had
found the damages, or how they had apportioned
them: In such case, therefore, the only remedy is
by awarding a Denire de nouo '". If the jury find a
verdict for the plaintiff with one penalty generally,
in a penal action, and the plaintiff apply it to one
count, lie cannot afterwards apply it to another,
though the former is bad in law, and though the evi-
dence A\ould have warranted the verdict on any other
count ''.
If there be judgment by default as to part, and
an issue upon other part, or in an action against
several defendants, if some of them let judgment
go by default, and others plead to issue, there
ought to be a special i^enirc, as well to try the issue
as
'< 1 Bos. & Pul. 329. 542. 6 T. R. 694.
' Willes, 443. "ST. R. 448. but see 3
™ Doug. 376. 722. 1 T. R. Bur. 1237. semb. contra.
OF DAMAGES. 803
as to inquire of the damages, tarn ad triandum qiiam
ad inquirendum^ and the jury who \x)' the issue shall
assess the damages for the whole, or against all die
defendants ". But if a declaration in trespass contain
two counts, and the defendant plead to one, and suf-
fer judgment by default on the other, and on the
trial of the first, the plaintiif prove one act of tres-
pass only, which is covered by the second count, he
is not entided to a verdict on the first count p. In the
case of several defendants, when those who plead to
issue are acquitted at the trial, the jury, in some in-
stances, shall assess damages against the defendants
u^ho let judgment go by default, and in others not.
In actions upon contract^ as covenant \ assumpsit *",
&c. the plea of one defendant, for the most part,
enures to the benefit of all ; for the contract being
intire, the plaintiff must succeed upon it against all
or none ; and therefore if the plaintiff fail at the trial,
upon the plea of one of the defendants, he cannot
have judgment or damages against the others, who
let judgment go by default: But in actions of torty
as trespass^ &c. where the wrong is joint and several,
the distinction seems to be this, that u here the plea
of one of the defendants is such, as shews the plain-
tiff could have no cause of action against any of
them,
1 1 Co. 5. 2 Bos. and Pul. Keb. 284. S. C.
163. :• Cas. Pr. C. B. 107. Prac.
P 7 T. R. 727. Reg. 102. S. C. r> T. R. 662.
1 1 I<ev. 6.^>. 1 Sid. 76. 1
804 or DAMAGES.
them, there, if this plea be found against the plaintiff,
it shall operate to the benefit of all the defendants,
and the plaintiff cannot have judgment or damages
against those who let judgment go by default ''; but
where the plea merely operates in discharge of the
party pleading it, there it shall not operate to the
benefit of the other defendants, but notwithstanding
such plea be found against the plaintiff, he may have
judgment and damages against the other defendants ^
If there be a demurrer to part, and an issue upon
other part, or in an action against several defendants,
if some of them demur, and others plead to issue,
the jury who try the issue shall assess the damages
for the whole, or against all the defendants : In this
case, if the issue be tried before the demurrer'is ar-
gued, the damages are said to be contingent ", de-
pending upon the event of the demurrer. But where
the issue, as well as the demurrer, goes to the whole
cause of action, the damages shall be assessed upon
the issue, and not upon the demurrer.
Where there ai'e several defendants, who sever in
pleading, the jury who try the first issue shall assess
damages against all, with a cesset executio; and the
other defendants, if found guilty, shall be contri-
te butory
s2 Ld. Raym. 1372. 1 Str. ^ '2 Str. 1108. 1222.
610. 8 Mod. 217. S. C. ^ Ante, 671.
OF DAMAGES. 805
butory to those damages '. In trespass against seve-
ral defendants, who join in pleading, if the jury on
the trial find them all jointly guilty, they cannot as-
sess several damages ■. But they may find some of
them guilty, and acquit others; in which case, the
damages can be assessed against those only w ho are
found guilty : Or they may find some of the defen-
dants guilty of the whole trespass, and others of a
part only ''; or some of them guilty of part, or at one
time, and the rest guilty of other part, or at another
time ' ; in either of which cases, they may assess
several damages. And ^vhere in an action against
several defendants, the jury by mistake have assess-
ed several damages, the plaintiff may cure it, by en-
teri;ig a nolle prosequi as to one of the defendants, and
taking judgment against the others '; or he may enter
a remittitur as to the lesser damages ^\ or even with-
out entering a remittitur^ he may take judgment
against all the defendants, for the greater damages '\
Where
^ 11 Co. 5. If A. recover in see 1 Str. 79. 2 Str. 1140.
tort against two defendants, =^ Cro. Eliz. 860. 11 Co. 5.
and levy the whole damages Sty. Rep. 5.
on one of them, that one can- y 1 1 Co. 6. Brownl. 233.
not recover a moiety against Cro. Car. 54.
the other for his contribution ; ^ 11 Co. 5. Cro. Car. 239.
alitcr in asHumlisit. 8 T. R. 243. Carth. 19.
186. all Co. 7. a. Cro. Car.
w Cro. Eliz. 860. 11 Co. 192. 1 Wils. 30.
5. 1 vStr. 422. 2 Str. 910. 5 ^ Id. ibid.
Bur. 2792. 6 T. R. 199. but
806 or SPECIAL VERDICTS.
Where the jury, upon the trial of an issue, have
omitted to assess the damages, we have before seen
in what cases the omission may be suppUed, by a
VvTit of inquiry ". Where the jury give greater da-
mages dian the plaintiff" has declared for, it may be
cured by entering a remittitur of the surplus, before
judgment '^; or the plaintiff may amend his declara-
tion, and have a new trial •". And in an action for a
mayhem^ the damages may be increased by the
court, on view of the party '".
On a general verdict, if false, the jury were liable
to be attainted^. To relieve them from this diffi-
culty, it was enacted by the statute oiWestm. 2. (13
EdiM. 1.) c. 30. \ 2. " that the justices of assize
*' shall not compel the jurors to say precisely whc-
" ther it be disseisin or not, so as they state the
*' truth of the fact, and pray the aid of the justices;
" but if they will say, of their own accord, that it is
" disseisin, their verdict shall be admitted at their
'* own peril." Upon this statute, it has become the
practice for the jury, when they have any doubt as to
the matter of law, to find a special verdict, stating the
facts, and referring the law arising thereon to the de-
cision of the court; by concluding conditionally, that
if upon the whole matter alleged, the court shall be
of
c Ante^ 516, Sec ^ 1 Ld. Raym. 176. 3 Salk.
<! Yelv. 45. 2 Str. 1110. 115. S.C. 1 Wils. 5. Barnes,
1171. 153.
^^ Jn(e, 652, o. g Gilb. C. P. 71.
I
OF SPECIAL VERDICTS. 807
of opinion, that the plaintiff had cause of action, they
then find for the plaintiff; if otherwise, then for the
defendant ". In finding special verdicts, where the
points are sing-le and not complicated, and no special
conclusion, the counsel (if required,) are to sub-
scribe the points in question, and agree to amend
omissions or mistakes in the mesne conveyance, ac-
cording to the truth, to bring the point in question
to judgment': Arid unnecessary finding of deeds
hi licec verba, where the question rests not upon
them, but which are only derivation of title, ought
to be spared, and stated shortly, according to the
substance they bear in reference to the deed, as feofi"-
ment, lease, grant ', &:c. It is also a general rule, that
in a special verdict, the jury must find facts, and not
merely the evidence of facts ^ : And if in this, or any
other particular, the verdict be defective, so that the
court are not able to give judgment thereon, they
will amend it, if possible, by the notes of coun-
sel, or even by an affidavit of what was proved
upon the trial '' ; or otherwise, they will supply the
defect, by awarding a nicnire de novo \
If there be a special verdict, the plaintiff's at-
torney generally has it drawn, from the minutes
taken
•' 3 Blac Com. 377, 8. and S. C. 1 East, 1 H.
see Append. Chap. XXXVII. ^ Jnte, 662.
§ 41. 12 Ld. Raym. 1521. 1584.
iR. M. 1654. § 20. 2 Str. 887. S. C. 1124. S. P
J 1 Wils. 48. 2 Str, 1185. 1 i:ast, 111.
808 OF SPECIAL CASES.
taken at the trial, and settled by his counsel, who
signs the draft. It is then delivered over to the op-
posite attorney, who gets his counsel to peruse and
sign it; and \vhen the verdict is thus settled and
signed, it is left with the clerk of nisi prius in a town
cause, or with the associate in the country, who
makes copies for each party. The whole proceed-
ings are then entered, docketed, and filed of record;
after ^\ hich a concilium is moved for, a rule drawn
up thereon with the clerk of the rules, the cause en-
tered with the clerk of the papers, copies of the re-
cord made and delivered to the judges, and counsel
instructed and heard, in like manner as upon argu-
ing a demurrer"'; only that a special verdict must
be set down in the paper for argument within four
days ", and cannot be set down afterwards, without
leave of the court". After judgment given, the pre-
vailing party is immediately entitled to tax his costs,
and take out execution, without a rule for judg-
ment; but the other party may have a rule to be pre-
sent at taxing costs ''.
Another method of finding a species of special
verdict, is when the jury find a verdict generally
for either party, but subject nevertheless to the
opinion of the court above, on a special case,
stated by the counsel on both sides, with regard
to a matter of law; which has this advantage
over
m Ante^ 685, 6. o Imp. K. B. 352.
^ Bur. in firef. IV. v Id. ibid.
OF SPECIAL CASES. 809
over a special verdict, that it is attended with much
less expence, and obtains a speedier decision; the
postea being stayed in the hands of the officer of
nisi prius, till the question is determined, and the
verdict is then entered for the plaintiff or defendant;
as the case may happen. But as nothing appears
upon the record but the general verdict, the parties
are precluded hereby from the benefit of a writ of
error, if dissatisfied with the judgment of the court
upon the point of law '^.
In a special case, as in a special verdict, the facts
proved at the trial ought to be stated, and not merely
the evidence of facts '. It is usually dictated by the
court, and signed by the counsel, before the jury are
discharged ; and if in settling it, any difference arises
about a fact, the opinion of the jury is taken, and the
fact stated accordingly '. For the argument of a spe-
cial case, the same steps must be taken, as for that of
a special verdict, except that it is not entered of re-
cord. But it is a rule, that all special cases to be set
down by the clerk of the papers to be argued, must
be entered within the four first days of the term
next after the trial, at which such special cases
shall have been reserved; and that such special cases
shall never be set down for argument, on any of
the four last days of the term \ In arguing a spe-
cial
'1 3 Blac. Com. 378. ^ 1 Bur. in /iref. IV.
'•2WiIs. 163. t R. M. 38 Geo. III.
Vol. IL U
810 OF SFECIAL CASES.
cial case, the counsel are not permitted to go out of
it, and the court must judge upon it as stated ": If
it be mis-stated, the parties must apply to amend; or
if it be so defective, that the court are not able to
give judgment, they will grant a new trial, in order
to have it re- stated ^.
Upon trial of the issue, a case was made, and af-
terwards argued in court, but the fact not being suf-
ficiently stated, so as tlie court could give judgment
according to the justice of the cause, it was recom-
mended to the parties, and accordingly they agreed
to go to a new trial, when the plaintiff was nonsuit-
ed : and the question being about the costs, whether
the master should tax the common costs of a non-
suit, or take into his consideration all the former
proceedings; upon motion for the court's direction
to the master, it was ordered, that he should tax
the defendant his costs upon the whole, as well
with relation to the first trial, as the last '". From
the statement of this case, it does not appear whe-
ther, upon granting a new trial, any thing was said
about the costs of the former trial, or whether they
were directed to abide the event of the suit: If
they were not, it seems from subsequent cases %
that at this day they would not have been allowed.
But where, after the argument of a special case, the
court directed a new trial, because the case was in-
sufficiently
^ 1 Bur. 617. "3 T. R. 507. 6 T. R. 71.
V 1 Str. 300. 3 T. R. 507. Post. 823, 4.
w 1 Str. 300.
OF THE POSTEA. 811
sufficiently stated; and the defendant, without going
to trial again, gave the plaintiff a cogno'oit; the court
held, that the defendant was liable to pay the costs
of the former trial ^,
The verdict, whether general or special, nonsuit,
&c. is entered on the back of the record of nisi
prtus; which entry, from the latin word it began
with, is called the postea ^ When the cause is tried
at the sittings in London or Middlesex^ the associate
delivers the record to the attorney of the party for
whom the verdict is given, and he afterwards in-
dorses the postea^ from the associate's minutes, on
the panel; but when the cause is tried at the assizes,
the associate keeps the record till the next term, and
then delivers it, with the postea indorsed thereon, to
thfe party obtaining the verdict. On a motion for
a new trial, the postea was brought into court, and
after the new trial had been denied, the postea
could not be found; the court on debate ordered
a new one to be made out, from the record above,
and the associate's notes*. If the postea be wrong,
it may be amended by the plea-roll, by the memory
or notes of the judge, or by the notes of the associate
or clerk of assize ^ But the court will not, at a dis-
tance
y 6 T. R. 144. 8cc. and for the defendant on
^ For the form of the fioatea a nonsuit or verdict in assum/i-
on a verdict hr the /i/airitiff] in sic, 8cc. Id. § 27, 8tc.
as8U7n/isit, debt, case, refilevin, » 2 Str. 1264.
tres/iass, and ejectment, see '^ ^nte, 662.
Append. Chap. XXXVII. § 1,
812 OF THE POSTEA.
tance of time after the trial, amend the postea, by
increasing the damages given by the jury; although
all the jurymen join in an affidavit, stating theii' in-
tention to have been, to give the plaintiff such in-
creased sum, and that they conceived the verdict
they had found was calculated to give him such
sum ^
= 2 T. R. 281.
CHAP-
[ 813 ]
CHAPTER XXXVIII.
O/'New Trials; ^«^ Arrest of Judgment,
\ FTER a general verdict, or upon a writ of in-
quiry, either on demurrer or judgment by de-
fault ^, it is incumbent on the prevailing party to
enter a rule for judgment nis'i causa, on tht postea or
inquisition, with the clerk of the rules. This rule
expires in four days'" exclushe after it is entered;
and Sunday % or any other day on which the court
doth not sit, is not reckoned one of the four days,
unless the rule be entered on the last day of the
term, or within four days after; during which four
days, it is the practice to enter these rules, as of the
last day of the term; and at the expiration of four
days exclusive after entering such rule, if no suffi-
cient cause be shewn to the contrary, judgment may
be entered \ The rule for judgment ought not to be
entered before the day in bank ; and it is not neces
sary
a 1 Salk. 399. after the return of the fiabeas
^ 3 Salk. 215. 6 Mod. 241. corpora Juratorum, does not
c 4 Bur. 2130. extend to a case where the
<! R. E. 5 Geo. II. reg. 3. term closes before the four
(a). The rule in the common days are expired. 2 Bos. &
pleas, that final judgment can- Pul. 393.
not be signed till four days
814 or NEW TRIALS.
sary if the plaintifF be nonsuited, for in that case
judgment may be entered immediately after the day
in bank ^
Within the time limited by the rule, the unsuc-
cessful party may move the court for a new trial, or
inquiry; or in arrest of judgment; or for judgment
non obstante 'veredicto^ a repleader, or s)enire facias
de no'vo,
'I'he first instance to be met with in the books, of
a new trial on the evidence, was in the case of Wood
and Gunston^ A. D. 1665 ^, But Holt^ Ch. J. seems
to have been of opinion, that new trials were more
ancient, from the challenge to be met with in the old
books, that the juror had before given a verdict in
the same cause ^ ; Yet it does not from thence fol-
low, that the court granted a new trial upon the evi-
dence; for it might appear to be a mis- trial upon the
record, or there might be other reasons for awarding
a venire facias de ?iovo ^.
But whatever might have been the origin of the
practice, trials by jury in civil causes could not
subsist now, without a power somewhere to grant
new trials. If an erroneous judgment be given in
point of law, there are many ways to review and
set
e R. E. 5 G. II. reg. 3. s 2 Salk. 648. and see 6 T.
(a). R. 622, 3.
f Sty. Rep. 462. 466. ^ 2 Str. 995.
OF NEW TRIALS. 815
set it right. Where a court judges of facts upon
depositions in writing, their sentence or decree may
many ways be reviewed and set right. But a general
verdict can only be set right by a new trial; which
is no more than having the cause more deliberately
considered by another jury, when there is a reason-
able doubt, or perhaps a certainty, that justice has
not been done. The writ of attaint is now a mere
sound in every case ; in many it does not pretend to
be a remedy. There are numberless causes of false
verdicts, without corruption or bad intention of the
jurors: They may have heard too much of the mat-
ter before the trial, and imbibed prejudices without
knowing it. The cause may be intricate: The ex-
amination may be so long, as to distract and con-
found their attention. Most general verdicts include
legal consequences, as well as propositions of fact:
In drawing these consequences, the jury may mis-
take, and infer directly contrary to law. The parties
may be surprised, by a case falsely made at die
tiial, which they had no reason to expect, and there-
fore could not come prepared to answer. If unjust
verdicts, obtained under these and a thousand like
circumstances, were to be conclusive for ever, the
determination of civil property, in this method of
trial, would be very precarious and unsatisfactory '.
It
i 1 Bur. 39.-^
816 OF NEW TRIALS.
It was not formerly usual to grant a new trial in
.yect7nent ^, or after a trial at bar \ nonsuit "', or two
concurring verdicts "; but for the sake of obtaining
justice, it may be now had in these as well as in
other cases ". Where there are two contrary verdicts,
It is not of course to grant a third trial, but the court
in their discretion will grant or refuse it, according
to circumstances; there being no rule, either at law
or in equity, which entitles the losing party in that
case to the benefit of a third trial, if the second ver-
dict be satisfactory to the court p. In an inferior
court, a verdict cannot be set aside, and a new trial
had, upon the merits, but only for irregularity "^ : An
inferior court, however, has power to set aside a
regular interlocutory judgment, in order to let in a
trial of the merits.
The principal grounds or reasons for setting aside
a verdict or nonsuit, and granting a new trial, are
first, the want of due notice of trial'; but if the
defendant appear and make defence, he shall not
have
s2Salk. 648, 4 Bur. 1986. 2 Blac. Rep.
17 Mod. 37. 155. 2 Salk. 698. 3 Wils. 146. 338. after
550. S. C. a 7ionsuit; 4 Bur. 2109. 1 T
i^' 1 Blac. Rep. 532. R. 171. after two concurriiit^
•^ 6 Mod. 22. 2 Salk. 649. verdicts,
i Str. 692. i' 2 Blac. Rep. 963.
° 2 Sir. 1105. 4 Bur. 2224. ^2 Salk. 650. 1 Str. I]?.
in ejectment; Sty. Rep. 462. 392. 499.
466. 1 Str. 584. 2 Ld. Raym. ^ 1 Bur. 571.
1358. S. C. 2 Str. 1105. 1 '• Bill. .\7. Pr/. .327.
Bur. '^'}5. after a trial at bar^
OF NEW TRIALS. 817
have a new trial on that ground \ Secondly, for wunt
of a proper jury; as where one of the jurymen w^^s
not returned on the nisi priiis panel, but answered to
the name of a person who was ' . Thirdly, the mibtje-
haviour of the prevailing party, towards the jury or
witnesses ''; but merely desiring a juror to appear, is
no cause for setting aside the verdict'. Fourthly ,
the misbehaviour of the jury, in castin.^ lots for thtir
verdict ", Sec : But the court will not receive an affi-
davit of misbehaviour from any of the jurymen
themselves, in all of whom such conduct is a very
high misdemeanor - ; nor will they suffer the jury to
explain by affidavit the grounds of their verdict,
or to shew that they intended something different
from what they found ^. Fifthly, the court \\ ill
sometimes, though rarely, grant a new trial, on ac-
count of the unavoidiible absence of the attornies or
witnesses ", or upon the discovery of new and ma-
terial evidence, since the trial'': But a new trial is
never granted for the default or omission of the
parties, their counsel or attornies, in not coming
prepared with, or going into evidence which they
were apprised of, and might have produced at the
former
t 2 Salk. 6'1 G. Bui. A7. Pri. .326.
" Willes, 484. Barnes, 453. y Say. Rep. 100. 1 T.R. 11.
S. C. and see 4 T. R. 473. '■■ 5 Bur. 2667. 2 Bkt. Rep.
^nte^ 524. Post, 838 (a). 803. 2 T. K 281. but see 1
V 7 Mod. 156. Bur. 383. srmb. com ra.
w 1 Str. 643. a 2 Salk. 645. 6 Mod. 22.
=< 2 Salk. 645. 1 Str. 642. i> 2 Blac. Rep. 955.
Vol. II. X
818
or NEW TRIALS.
former trial '' ; or because a witness has either from
inattention, or the want of being prepared, made a
mistake in giving his evidence*^; or on account of
an o!)jection to the competency of witnesses, disco-
vered after the trial ". Sixthly, the misdirection of
the judge is a good ground for a new trial ^; or his
admitting or refusing evidence contraiy to law ^.
But it is no ground ibr the court to grant a ne\^^ trial,
that a witness called to prove a certain fact was reject-
ed, on a supposed ground of incompetency, where
another witness ^vho was called established the same
fact, which was not disputed by the other side; and
the defence proceeded upon a collateral point, on
which the verdict turned. 3 East, 451. Seventhly,
a new trial may be, and is commonly moved for, on
account of the error or mistake of the jury, in finding
a verdict without, or contrary to evidence''; but
where there is evidence on both sides, it is not usual
to grant a new trial ', unless the evidence for the pre-
vailing party be very slight, and the judge declare
himself dissatisfied with the verdict ^i And, except
where a point has been saved at the trial '% it is a
general rule, not to grant a new trial, except for
the misdirection of the judge \ and in a penal "", hard,
or
^ 2 Salk. 647. 653, 6 Mod.
22. 1 Str. 691. I Wils. 98.
1 Blac. Rep. 298. 2 Blac.
Rep. 802, 3. 1 T. R. 84.
2 T. R. 113. But the court
of Common Pleas will grunt
a new trial, if tiie testimony
of witnesses, on which a ver-
dict has proceeded, be found-
ed on and derive its credit from
particular circumstances, and
those circumstances be after-
wards clearly falsified by affi-
davit. 1 Bos.'Sc Pul. 427.
•^ Say Rep. 27.
e 1 T. R. 717. 1 Bos. 8c Pul.
429. (a).
f 2 Salk. 649. 2 Wils. 273.
g 6 Mod. 242.
^ 1 Bur. 12.54.2 Bur. 665.
936.
i 2 Str. 1106. 1142. 1 Wils.
22. 3 Wils. 47.
J Say. Rep. 264. and see 3
Wils. 38, 9.
i^ 1 Bos. & Pul. 338, 9.
I 4 T. R. 753. 5 T. R.
19.
'" 2 Str. 899. 1238. 1 Wils.
17. 3 Wils. 59.
'' OF NEW TRIALS. 819
or trifling action ", after a verdict for the defendant ;
nor after a verdict forlbeplainiiff, where the defence
is unconscionable ", and the verdict is found accord-
ing to tiie justice and honest}' of the case ■'. Eiglithly,
a new trial may be had for excessiiie damages "^ ; but
in that case, the damages oiight not to be weighed
in a nice balance, but must be such as appear at first
blush to be outrageous, and indicate passion or par-
tiality in the jury. And where a new trial is granted
for excessive damages, the former verdict stands as a
security in the mean time, for the damages which
may be given on the second trial ^ It is not usual to
grant a new trial for smallness of damages '; though
inquisitions, on writs of inquiry, have been some-
times set aside on that ground ^
A new trial cannot be granted in chil cases, at
the instance o^ one of several defendants "; nor for a
pan
n 2 Salk. 644. 648. 653. 1 1 Bos. Sc Pul. 338.
Bur. 12.54. 664.3 Bur. 1306. q 1 SU'. 692. 1 Bur. 609. 2
2 Blac. Rep. 851. Cowp. 37. Wils. 160.205.244.252. 405.
And an action is considered as 3 Wils. 18. 62. 2 Blac. Rep.
triflinj^ in this respect, where 929. 942. 1327. Cowp. 230. 1
the sum to be recovered is un- T. R. 277. 4 T. R. 65 1. 5 T.
der 20/. Taylor v. Greeii, H. R. 257. 7 T. R. 529.
38 G. III. ' 7 T. R. 529.
o 2 Salk. 644. 646, 7. 1 Bur. ^ 2 Salk. 647. 2 Str. 940.
12. 54. 2 Bur. 664. 4 T. R. 105 1.
468. t Jlntc^ 524.
P 2 Bur. 936. 2 Wils. 306. " 3 Salk. 361. 12 Mod. 275.
362. 2 T. R. 4. 4 T. R. 468. 2 Str. 814.
82(:) OF NEW TRIALS.
part only of the cause of action": and therefore,
where one issue out of four was found against evi-
dence, the court granted a new trial, not only as to
such issue, for that they said could not be, but for the
whole \ But then, the issue found against evidence
must be a material one ; for if, out of three issues,
two are found against evidence, yet if the material
issue in the cause be agreeable to evidence, the court
will not grant a new trial ''. In criminal cases, where
several defendants are tried at the same time for a
misdemeanor, and some are acquitted, and some con-
victed, the court may grant a new trial as to those
convicted, if they think the conviction improper y.
The motion for a new trial must be made with-
in four da}s exchisiDe after the entry of a rule for
judgment ^ ; and if it be not made within that time,
the party complaining cannot afterwards be heard,
on the subject of a new trial *: and there is no dif-
ference in this respect between civil and criminal
cases '; though in the latter, where the court have
seen of themselves, or it has appeared to them
on the suggestion of counsel, that substantial jus-
tice has not been done, they have sometimes inter-
posed
V 2 Bur. 1224. 1 Blac. Rep. 25 Geo. II. Bui. M. Pri. 326.
298. S. C. y6 T.R. 619.
w Rexw Pool, E. 1734. Bui. ^ Doug. 171.
Ki. Pri. 326. a 5 T. R. 436.
^ Dexter v. Parrowby, E. ^ Id. ibid.
OF NEW TRIALS. 821
posed after the regular time, and granted a new trial '^.
It is a general rule, that the party shall not move for
a new trial, after he has moved in arrest of judg-
ments^: This rule however extends only to cases,
where the party has knowledge of the fact, at die
time of moving in arrest of judgment; therefore a new
trial was granted, after such a motion, on affidavits of
two of the jury, that they drew lots for their verdict ^
And where the defendant, pending his motion for a
new trial, served the plaintiff with a copy of an al-
lowance of a writ of error, the court held this to be
an admission of the facts of the case, and refused to
grant a new trial ^
An affidavit is necessary to move for a new trial,
unless the ground of it appears on the face of the evi-
dence : and the rule, if granted, is a rule, to shew cause ;
on obtaining which, application should be made to the
judge who tried the cause, for his report of the evi-
dence, and if he be not of the same court, his clerk
will deliver it to the puisne judf^e of the court in u hich
the action is brought. If the judge who tried tlie
cause
^ 2 Str. 845. 995. 2 Bur. (ju. whether such affidavits
1189. Doug. 171. 797. 5 T. would now be received? Jnte,
R.436, 7. 1 East, 146. 817.
d 2 Salk. 647. 1 Bur. 334. ( Bennet v. Hunt, T. 15 G.
-,Bul. J^i. Pri. S25, S. but III.
*22 Of NEW TRIALS.
t;ause declare himself satisfied with the verdict, it
hath been usual not to grant a new trial, on account of
its being against evidence : On the other hand, ii" he
declare himself dissatisfied with the verdict, it is
pretty much of course to grant it ^. In a case where
a judge only reported evidence, without declai'ing
. himself to be satisfied or dissatisfied with the ver-
dict, the court were under difficulty how to act : they
seemed inclined however to hear it spoken to; but
through their interposition, the paities agreed to
abide by the determination of the point of law ''.
The granting of a new trial is either without, or
upon payment of the costs of the former trial, or such
costs are directed to abide the event of the suit, or
nothing is said respecting them. If a new trial be
granted for irregularity, the costs of the former tri-
al ought not to be paid ' ; and the party applying
is in such case entitled to the costs of the ap-
plication. Where the plaintiff has been nonsuited,
by the mistake of the judge in point of law, the
court have in several instances ordered the nonsuit
to be set aside, without costs ^ ; and verdicts have
been set aside in a similar manner, when they have
been obtained by unfair practice '', or contrary to
law
% Bui. AV. Pri. 327. J 1 Blac. Rep. 670. Say.
'i Rex V. Philips 23 Geo. . Costs, 189. .3 Wils. 146. ".38
II. Bui. AiPn. 327. '^ 1 Bur. 3.^2.
■' 12 Mod. 57U.
OF NEW TRIALS. 823
law and the judge's direction ': But generally speak-
ing, where a new trial is granted for the error or mis-
take of the jury, either in finding a verdict without
or contrary to evidence, or in giving excessive da-
mages, it is always upon payment of the costs of the
former trial "'.
On granting a new trial for the misbehaviour of
the jury, the costs of the former trial were directed
to abide the event of the suit ". And upon setting
aside a nonsuit, when the costs are directed to
abide that event, though the plaintiff succeed on the
second trial, he is not entided to the costs of the first;
neither is the defendant in such case entitled to the
costs of the first trial : but when the same party suc-
ceeds on both trials, he is entitled to the costs of both".
Where the costs of the former trial are not ordered to
be paid, nor directed to abide the event of the suit,
they shall not be allowed, though the verdict has gone
the same way, unless it be so expressed in the rule
granting the new trial ; and if the rule be silent in
that respect, the costs of the first trial are never
allowed,
1 Say. Costs, 189. 2 Bur. 665. K. B. Pr. Reg. 408. C.
1224. 1 Blac. Rep. 298. S. B. and see 1 T. R. 20.
C. 1 Blac. Rep. 670. S. P. " 1 Str. 642. and see Willes,
"» 12 Mod. 370. 1 Str. 488.
642. 1 Bur. 12. 39".. 2 Bur. » 8 T. R. 619. 1 East, 114
fr7). S.C. cited.
824 OF ARREST OF JUDGMENT, SlC.
allowed, whichever way the verdict may go upon the
second trial ^.
If the verdict or nonsuit be set aside, and a new
trial granted, the rule for that purpose should be
drawn up and served ; and if it be on payment of
costs, they must be forthwith paid, (the rule being
conditional.) or the prevailing party may move the
court for leave to enter up judgment, and take out
execution. In order to proceed to a new trial, it is
not necessary that the Jiisi prius record should be re-
engrossed, unless the postea be indorsed on it, or that
any new entries should be made or paid for; but
the record must be passed again, with an alteration
oftheji/rata; and notice of trial being given, another
'venire and distringas must be sued out and returned,
and the cause set down anew ^.
The only ground of arresting judgment^ at this
day, is some matter intrinsic, appearing upon the
face
p Doug. 437. 3 T. R. 507. go the same way, the party
6 T. R. 71. 131. 1 East, succeeding has the costs of
111. 1 H. Blac. 639. but see both trials; but if the ver-
1 Str. 300. 5 Bur. 2694. 6 diets go different ways, the
T. R. 144. In the court of party ultimately succeeding
Common Pleas, the rule is has not the costs of the first
different; for there, if a new trial. 1 East, 1 12. and see
trial be granted, and the rule 1 H. Blac. 641.
say nothing about costs, if q Imp. K. B. 361. and see
the verdict on the second trial R. Ev 5 3 G. III.
Il
OF ARREST OF JUDGMENT, &C. 825
face of the record, which would render it erroneous
and reversible ; for though it seems to have been
otherwise formerly % yet it is now settled, that judg-
ment cannot be airested for extrinsic or foreign mat-
ter, not appearing on the face of the record, but the
court are to judge upon the record itself, that their
successors may know the grounds of their judgment\
The old course of taking advantage in arrest of judg-
ment was dius: The party, after a general verdict,
having a day in court, (for so he has, as to matters of
law, though not of fact,) did assign his exceptions in
arrest of judgment, by way of plea, and it was called
pleading in arrest of judgment: This differed from
moving in arrest of judgment, which was done by
one as amicus curia, where the party w^asout of court ^
After judgment on demurrer, there can be no mo-
tion in arrest of judgment, for any exception that
might have been taken on arguing the demurrer;
the reason is, that the matter of law having been al-
ready settled, by the solemn determination of the
court, they will not afterwards suffer any one to come
as amicus curia, and tell them that the judgment
which they gave on mature deliberation is ^vrong:
but it is otherwise after judgment by default, for that
is not given in so solemn a manner ".
The
«■ 1 Salk. 77. Bur. 2287.
s 1 Ld. Raym. 232. 1 t 1 SJk. 77, 8. 215.
Salk. 77. b. C. /rf. 315. 4 6 Mod 143.
o 1 Str. 435.
Vol. II. Y
826 OF ARREST OF JUDGMENT, hC.
The parties cannot move in arrest of judgment,
for any thing that is aided after verdict, at common
law ; or amendable at common law, or by the statutes
of amendments ; or cured, as matter of form, by the
statutes of Jeofails.
At common law, where any thing is omitted in the
declai'ation, thought it be matter of substance, if it be
such as that without proving it at the trial, the plaintiff
could not have had a verdict, and there be a verdict
for the plaintiff, such omission shall not arrest the
judgment '. This rule however is to be understood
with some limitation; for on looking into the cases,
it appears to be, that where the plaintiff has stated his
title or ground of action defectively or inaccurately,
(because, to entitle him to recover, all circumstances
necessary, in form or substance, to complete the title
so imperfectly stated, must be proved at the trial,)
it is a fair presumption, after a verdict, that they
were proved; but that where the plaintiff totally
omits to state his title or cause of action, it need
not be proved at the trial, and therefore there is
no room for presumption '". And hence it is a
general rule, that a verdict \mll aid a title defec-
tvoely
V 2 Show. 233. T. Raym. 2 Wils. 5. 4 Bur. 2020.Cowp.
487. S. C. and see Cro. Jac. 825. 1 T. R. 141. 3 T. R. 147.
44. Hob.78. 1 Sid.218.Carth. 7 T. R. 518. 2 Bos, 8cPul.259..
304.389. 1 Salk. 130. 2 Ld. 267.
Raym. 1214. 1 Wils. 1. 255. ^^ Doug. 679.
OF ARREST OF JUDGMENT, ScC, 827
ihefy set out, but not a defect'me title " ; or in other
words, nothing is to be presumed after verdict, but
what is expressly stated in the declaration, or neces-
sarily implied from thefacts which are stated . Thus,
where the grant of a reversion was stated, ^vhich
could not take effect without attornment, that, being
a necessary ceremony, might be presumed to have
been proved ' : But where, in an action against the
indorser of a bill of exchange, the plaintiff did not al-
lege a demand on and refusal by the acceptor, when
the bill became due, or that the defendant had notice
of the acceptor's refusal, this omission was held to
be error, and not cured by the verdict '^ : for in this
case, it was not requisite for the plaintiff to prove,
either the demand on the acceptor, or the notice to
the defendant, because they were neither laid in the
declaration, nor were they circumstances necessary
to any of the facts charged.
Another rule at common law is, that surplusage
will not vitiate after verdict ; utile per inutile non
'vitiatur^': and therefore in trover, if the plaintiff
declare that on the third of March he was possessed
of goods, which came to the defendant's hands,
and
X 1 Salk. 365. 2 Ld. Raym. y Per Buller, Just. 1 T. R.
1325. S. C.2 Str. 1011. 1023. 1 45. and see 7 T. R. 521.
Cas. temfi. Ilardw. 1 16. S. C. ' Doug. 683.
1 Bur. 301. 2 Bur. J 159. 4 T. ^ Id. 679.
R. 472. b Co. Lit. 303. b. Plowd
2^32. 1 Saund. 1C9. 287.
828 OF ARREST OF JUDGMENT, &C.
aiid that afterwards, to wit, on the first of Marchy he
converted them to his own use, this is cured after
verdict; for " that he afterwards converted them"
is sufficient, and the scilicet is void '^.
As the plaintiff's action must have all the
essentials necessary to maintain it, so the de-
fendant's bar must be substantially good; and if
the gist of the bar be bad, it cannot be cured by a
verdict found for the defendant : but if it be found
for the plaintiff, he shall have judgment, either
for the badness or falsity of the bar*^. Thus,
before the satute for the amendment of the law % if
the defendant had pleaded payment without an ac-
quittance, and it had been Ibund for him, yet he
could not have had judgment; because the gist of
the plea was bad, since the obligation remained in
force, until dissolved eoclem ligamine quo ligatur ; but
if it had been found for the plaintiff, he should have
had judgment ^,
Where a plea confesses the action, and does not
sufficiently avoid it, judgment shall be given on the
confession, without regard to a verdict for the defen-
dant, which is called a judgment non obstante ^ere^
dicto ^; and in such case, a writ of inquiry shall issue.
A ver-
cCro. Jac.428. g Cro. Eliz. 241. Carth.370.
d Gilb. C. P. 140. 1 Salk. 173. S. C. 6 Mod. 1.
e 4 Ann. c. 16. 2 Ld. Raym. 924. S. C. 1 Str.
f 5Co. 43. Cro. Eliz. 455. 394. 2 Str. 873. Willes, 364.
Moor, 692. S. C. Cro. Eliz. 1 Bur. 301.
778.
OF ARREST or JUDGMENT, &C. 829
A verdict cannot help an immaterial issue; but
an informal one is aided by the 32 Hen. VIII. c. 30\
An immaterial issue is, where that M-hich is ma-
terially alleged by the pleadings is not traversed,
but an issue taken on such a point as will not de-
termine the merits of the cause: An infoimal issue
is, where such allegation is not traversed in a proper
manner '.
Where the issue is immaterial, the court will
award a repleader; respecting which, the following
rules were laid down by the court, in the case of
Staple and Haydon ^ : First, that at common law, a
repleader was allowed before trial, because a verdict
did not cure an immaterial issue ; but now a replea-
der ought never to be allowed till trial, because the
fault of the issue may be lielped after verdict, by
the statute of Jeofails. Secondly, that if a repleader
be denied where it should be granted, or granted
where it should be denied, it is error. Thirdly, that
the judgment of repleader is general, namely, quod
partes replacitent; and the parties must begin again
at the first fault, which occasioned the immaterial
issue '': Thus, if the declaration be ill, and the bar
and replication are also ill, the parties must begin
de novo; but if the bar be good, and the replication
ill,
«> Gilb. C. P. 147. 1.2Ld. Raym. 922.3 Salk.
iCro. Eliz.227. Carth.371. 121. S. C.
1 Lev. 32. 2 Mod 137. k i Ld. Raym. 169.
J 2 Salk. 579. and see 6 Mod.
830 OF ARREST OF JUDGMENT, &.C.
ill, at the replication K Fourthly, no costs are allowed
on either side ". Fifthly, that a repleader cannot be
awarded, after a default at nisi prius. To which may
be added, that a repleader can never be awarded af-
ter a demurrer, or writ of error, but only after issue
joined '■; nor where the court can give judgment on
the whole record " : And it is not grantable in favour
of the person who made the first fault in pleading •'.
The distinction between a repleader, and a judg-
ment 7ion obstante lieredicto^ seems to be this : that
where the plea is good in form, though not in tact, or
in other words, if it contain a defective title, or ground
of defence, by which it is apparent to the court, up-
on the defendant's own shewing, that in any way of
putting It, he can have no merits, and the issue join-
ed thereon be found for him, there, as the awarding
of a repleader could not mend the case, the court, for
the sake of the plaintiff, will at once give judgment
non obstante n^eredicto '^; but where the defect is not
so much in the title, as in the manner of stating it,
and the issue joined thereon is immaterial, so that
the
1 3 Keb. 664, p I Ld. Raym. 170. Doug.
'" 2 Vent. 196.6 T.R. 131. 396.747.
Barnes, 125. 2 Bos. Sc Pul. i 1 Salk. 173. 6 Mod. 1. 2
376. Ld. Raym. 924. S. C. 1 Str.
n 3 Salk. 306. 394. 2 Str. 873. Willes, 364. _,
» Wille5,532, 3. 1 Bur. 301. Cowp. 510. Doug. ^
749.
I
OF ARREST OF JUDGMENT, &C. 831
the court know not for whom to give judgment,
whether for the plaintiff or defendant, there, for their
own sake, they will award a repleader *" : A judg-
ment therefore non obstante ve?x'clicto is always upon
tlic merits ; a repleader, upon the form and manner
of pleading.
A •venire facias de noDo ^ is grantable, in the fol-
lowing cases: First, where the jury are improperly
chosen, or there is any irregularity in returning t em''.
Secondly, where thty have improperly conducted
themselves ". Thirdly, where they give general da-
mages, upon a declaration consisting of several
counts, and it afterwards appears that one or more of
them is defective ^. Fourthly, where the verdict,
whether general or special '^, is imperfect, by reason
of some uncertainty or ambiguity '', or by finding-
less than the whole matter put in issue, or by not as-
sessing damages •'. Fifthly, by the statute 1 h. ^ W.
III. c. 32.
• 3 Salk. 305. 1 Ld. Riiym. though some of them be not
391. S. C. 2 Str. 847. 994. 1 actionable : aems, where are
Bur. 301. two counts, and none of the
* For the difference between words in one are actionable,
a ffmrerfenofo and a new trial, and there is a general verdict
see 1 Wils. 55. for the plaintiff. WilJes, 443.
t 2 T. R. 126. in nods. ^ 2 Ld. Raym. 1521. 1584.
" Id. ibid. 2 Str. 887. S. C. 1 124. S. P.
V R. M. 1654. § 21. Doug. ^^ Same cases ; 5 Bur. 2669.
377, 8. and see 1 T. R. 542. 6 7 T. R. 52. 1 East, 111.
T. R. 691. But the court will y 2 Str. 1052. 2 Wils. 367.
not arrest the judgment in an 377. 2 T. R. 136. in nods.
action for words in one count.
832 OF ARREST OF JUDGMENT, ScC.
c. 32. § 1. if the piaintifF, after issuing jury-process,
do not proceed to trial at the first assizes : but if the
jury be discharged at the assizes, in order to have a
view, there is no need of a 'venire de now ^. A 'uenire
de no'vo may be granted by a court of error ^ ; or af-
ter a demurrer to evidence '\ or bill of exceptions ^
And where a venire de novo is awarded, the party
succeeding is only entitled to t^ie costs of the second
trial ^,
The doctrine of amendments having been already
considered, 1 shall next proceed to take a short re-
view of the statutes of Jeofails^ and the decisions
tliereon, as applicable to different proceedings in the
course of the suit. And first, of the original writ.
The want of an original writ, we have seen ^,
is aided after verdict, by the 18 Eliz. c. 14. which
stiitute has been extended, by an equitable con-
struction, to the want of a hill upon the file ^. This
statute also cures the want of form, touching
false
■t- Com. Rep. 248. 367. 2 H. Blac. 211.
a2Str. 1051. 1124. Cowp. c 2 T. R. 125. 3 T. R. 36.
89. 91. Doug. 730. 1 T. R. d 6 T. R. 131. 1 East, 111.
783. 5 T. R. 367. 2 H. Blac. Jnte,755. 810, 11. 823,24.
2 1 1. but see 2 Str. 1055. 1 T. e Jnte, 102.
R. \52. f>c77ib. ccTifra. f Hob. 130. 134. 264. 281.
i-Sty.Rep. 34.335. 5 T.R. 304.
OP ARREST OF JUDGMENT, &C. 833
felse Latin^ or variance from the register, or other
defaults in form, in any writ original or judicial, &c.
By the 21 Jac. I. c. 13. " judgment after verdict
" shall not be stayed or reversed, by reason of any
" variance in form only, between the original writ
*' or bill, and the declaration, plaint or demand."
And by the 16 & 17 Car. II. c. 8. (which Twisden
Justice used to call the Omnipotent act^,) " judg-
" ment after verdict shall not be stayed or reversed,
*' for want of form, or pledges returned upon the
" original writ, or because the sheriff's name is not
" returned thereon, or for want of pledges upon any
" bill or declaration, &c." Lastly, by the 5 Geo. I. c.
13. (lord King's act '',) " judgment after verdict shall
** not be stayed or reversed, for any defect or fault,
" either in form or substance, in any bill, writ origi-
" nal or judicial, or for any variance in such writs,
" from the declaration or other proceedings."
Secondly, The want of a nvarrant of attorney for
either party is aided, after verdict, by the 32 Hen.
VIII. c. 30. and 18 Eliz. c. 14. And by the 21
Jac. I. c. 13. " judgment shall not be stayed or
•' reversed, for that the plaintiff in ejectment, or
" other personal action, being under age, appeared
" by attorney." But if the defendant being under
age, appears by attorney, it is still error ': Thougli
if an attorney undertake to appear for an infant de-
fendant,
g 1 Vent. loe. and see ?" i' 3 Atk. 601.
T. R. 587. i Ante^ 70. Barnes, 413.
Vol it. Z
834 or ARKEST OF JUDGMENT, &C.
fendant, the court will oblige him to do it in a pro-
per manner ''.
Thirdly, Mistakes dnd omissions in the declara-
tion^ and other subsequent pleadings^ are oftentimes
cured by the statutes of Jeofails; which declare,
" that judgment, after verdict, shall not be stayed
" or reversed, by reason of any mispleading, lack of
" colour, insufficient pleading or y>o/j7i/, or other de-
" fault or negligence of the parties, their counsellors
" or attornies '; want of form in any count, declara-
" tion, plaint, bill, suit, or demand '"; lack of aver-
" ment of any life, so as the person be proved to be
*' alive "; want of d^ny prof en, or the omission of Dt
" et arm'is or contra pacem, mistaking the christian
" name or surname of either party, sums, day,
" month or year, in any bill, declaration or pleading,
' ' being right in any writ, plaint, roll or record pre-
" ceding, or in the same roll or record wherein the
" same is committed, to which the plaintiff might
" have demurred, and shewn the same for cause;
" want of the averment of hoc paratus est Derificare,
" or hoc paratus est "verijicare per recordum, or for
" not alleging prout patet per recordum, or the want
" of a right venue, so as the cause were tried by a
" jury of the proper county, where the action is laid;
'■'• or any other matters of like nature, not being
" against
k I Str. 114.445. "> 18 Eliz. c 14.
1 32 Hen. VIII. c. 3Q. "^ 21 Jac. I.e. 13.
OF ARREST OF JUDGMENT, &C. 835
" against the right of the matter of the suit, nor
" whereby the issue or trial are altered °.'' The last
of these statutes seems to extend not only to those
cases where there is a wrong venue in a right coun-
ty, but also to those where the cause has been im-
properly tried in a wrong county ''.
Fourthly, The misjoining of the issue is aided by
the 32 Hen. VIII. c. 30. which also extends to any
miscontinuance or discontinuance, or misconveying
of process: And a discontinuance is cured by the
appearance of the party, in penal as well as other ac-
tions ''. But the want of a similiter was formerly
holden not to be aided or amendable ' : And where,
in the similiter^ the defendant's name was put in-
stead of the plaintiff's, the chief-justice dismissed the
jury, conceiving that he had no commission to try
the issue '. But in a subsequent case, where a similar
mistake was made, the court, after trial of the issue,
refused to arrest the judgment'; and at length, the
want of a similiter was holden to be amendable, upon
three grounds; first, that it was merely an omission of
the clerk; secondly, that it was implied in the ^c.
added to the last pleading; and diirdly, that by amend-
ing'
" 16 Sc irCar. II.c. 8. q 6 T. R. 255.
V 7 T. R. 583. and see 1 M Str. 641. 8 Mod. ."76.
Ld. Raym. 330. Carth. 448. S. C
S. C. Willes, 431. 3 East, ^ 2 Str. 1117.
580. f 1 Bxir. 1793.
836 OF ARREST OF JUDGMENT, &C.
ing, the court only made that right, which the de-
fendant himself understood to be so, by his going
down to trial ".
Fifthly, With respect to the ^z^ry-process, it is
provided by the statute 21 Jac. I. c. 13. " that af-
*' ter verdict, judgment shall not be stayed or re-
*' versed, by reason that the venire facias, habeas
*' corpora, or distringas is awarded to a wrong offi-
*' cer, upon any insufficient suggestion; or by reason
*' the 1)15716 is in some part mis-awarded, or sued out
" of more places, or of fewer places, than it ought
*' to be, so as some one place be right named; or by
*' reason that any of the jury which tried the said
" issue is mis- named, either in the surname or addi-
'* tion, in any of the said writs, or in any return upon
" any of the said writs, so as upon examination it be
" proved to be the same man that was meant to be
" returned; or by reason that there is no return upon
" any of the said writs, so as a panel of the names of
" the- jurors be returned and annexed to the said
" \vrit; or for that the sheriff's name, or other offi-
'* cer's name, having the return thereof, is not set to
*' the return of any such writ, so as upon examina-
" tion it be proved that the said writ was returned
" by the sheriff or under-sheriff, or any such other
•' officer."
If
V Cowp. 407. and see 1 Str. 551.
Of arrest of judgment, &c.
837
If a <vmire be of the same action, and between the
same parties, all other faults are amendable ''. But
these are incurable ; and therefore in ejectment^ if the
venire be of a plea of trespass, omiitin^ and ejectfnent
of farm, it is ill, because not in the same action; but
if the distringas had been right, tlic court would
have adjudged the venire to be null, and the want of
it is aided ". So in scire facias against an executor,
to haveexecutionof a judgment for dcunages in trover,
it was moved in arrest of judgment, that the venire
was in a plea of debt, and a new venire was award-
ed ^. The statute 21 Jac. I. only extends to the sur-
names and additions of the jurors; and therefore if
there be a mistake in the christian name, it is in-
curable ^. It is necessaiy, by this statute, that there
should be a panel returned ; ■ therefore if the sheriff
return but 23 on the venire, and 24 on the distrin-
gas or habeas corpora, and the twenty-fourth omit-
ted on the venire appear and be sworn, the verdict
will be void '. But if 12 of the 23 be sworn, and not
the
w Gilb. C. P. 174.
X /(/. 175. Bui. M. PH.
320. but see Cro. Cur. 275.
278. where a similar mistake
in the jurata was amended,
the venire and distri7igus being
right.
y Cro. Jac. 528. Bui. M.
Pri. 320.
z 5 Co. 42. Cro. Car. 202.
Gilb. C. P. 177. But the court
of common pleas refused to
set aside a verdict, and grant
a new trial, because one of
the jurors was named Henry
in the venire, tiie habeas cor-
{lora, and the Jiostca-, his real
christian name being Han-y,
Willes, 488. Barnes, 454. S,
C.
a Cro. Car. 278. Gilb. C.
P. 17S. So a verdict has been
set
138 or ARREST OF JUDGMENT, &C.
the 24th, it is aided by the 18 ERt.. So where there
were but 24 returned upon the panel annexed to the
ijemre facias, and there were 48 on the habeas cor-
pora^ upon which the defendant made no defence;
the court upon motion set aside the verdict without
costs, saying, that the 21 Jac. I. means only the
formal words upon the writ, for there must be a
panel annexed to the return ''.
The statutes of jeofails are extended by the statute
for the amendment of the law '^, to judgments en-
tered upon confession, nihil dicit, or non sum infor-
matus, in any court of record; and it is thereby
enacted, " that no such judgment shall be reversed,
*' nor any judgment upon any writ of inquiry of da-
'' mages executed thereon be stayed or reversed, for
" or by reason of any imperfection, omission, defect,
*' matter or thing whatsoever, which would have
" been aided and cured by any of the said statutes of
" jeofails, in case a verdict of twelve men had been
" given in the said action or suit, so as there be an
" original writ or bill, and warrants of attorney duly
" filed according to law." And by a subsequent acf*,
this
set aside, because one of the '' Browyi and Johnston, C. B.
jurymen was not returned on T. 1 1 Geo. II. Bui. A1. Pri.
the nisi firius panel, but an- 324.
swered to the name of a per- <=■ 4 Ann. c. 16. § 2.
son v/ho was. Willes, 484. ^ 9 Ann. c. 20.
Barnes, 453. S. C. Ante, 817.
OF ARREST OF JUDGMENT, &C. 839
this and all the statutes of jeofails are extended to
writs of mandamus, and informations in nature of a
quo 'iijarranto. As there cannot however be the same
intendment, in support of a judgment by default, as
after a verdict, it has been holden, that the statutes
of jeofails do not protect judgments by default,
against objections that are cured by a verdict at
common law, but such only as are remedied after a
verdict by the statutes ^.
The statute 32 Hen. VIII. c. 30. is confined to
actions at common law; and in all the subsequent
statutes of jeofails, there is a proviso, that they shall
not extend to criminal proceedings, nor to any writ,
bill, action, or information upon any popular ox penal
statute, other than such as concern the customs and
subsidies of tonnage and poundage ^. It has however
been determined, that the statute 32 Hen. VIII. c.
30. extends to penal actions '^. And by the statute 4
Geo. II. c. 26. which reduces the forms of legal pro-
ceedings into the English language, " all and every
statute and statutes for the reformation and amending
of the delays arising from any jeofails, shall and may
extend to all and every form and forms, and to all
proceedings in courts of justice, (except in criminal
cases,)
« 2 Str. 933. 8 3 Lev. 375. 1 Str. 136. 2
f 16 & 17 Car. II. c. 8. and Sir. 1227. Doug. 115.
see 1 Wils. 127. Cowp. 392.
840 OF ARREST OF JUDGMENT, &C.
cases,) when the forms and proceedings are in Eng-
lish; and all errors and mistakes are amendable and
remedied thereby, in like manner as if the proceed-
ings had been in Latin.'''' And though by the 16
and 17 Car. II. c. 8. the several omissions, variances
and defects therein mentioned, are required to be
amended by the judges of the court where the judg-
ment is given, or the record removed by writ of er-
ror, yet an actual amendment is never made on this
statute; but the benefit of the act is attained, by the
court's overlooking the exception ''.
The motion in arrest of judgment, or for judg-
ment non obstante •veredicto, ^c. may be made at any
time before judgment is given '; though a new trial
has been previously moved for^. But it is against
the ancient course of the court, to make a rule to
stay judgment, unless the postea be brought in; and
therefore it is said, that if one move in arrest of judg-
ment, he ought to give notice to the clerk in court
on the other side; but the better way is, to give a
rule upon the postea, for bringing it into court, and
that is notice of itself ''.
h 2 Str. 1011. Cas. te77i/i. i Doug. 745, 6.
Hardw. 314, 15. k Salk. 78. 6 Mod. 24. S.
i 2 Str. 845. 5 T. R. 445. C. and see 5 T. R. 454, 5.
CHAP-
[ 84.1 ]
CHAPTER XXXIX.
Q/'JUDGMENTS.
/^N the expiration of the rule for judgment, if
^""^ there be no previous motion for a new trial, or
in arrest of judgment, &:c. the prevailing party hav-
ing got the postea stamped with a double half-crown
stamp, and marked by the clerk of the posteas % may
proceed to sign final judgment.
Judgment is the conclusion of law, upon facts
found or admitted by the parties, or upon their;
default in the course of the suit. And it is either
for the plaintiff, or for the defendant : for the for-
mer, by 7iihil die it '', non sum informatus ", or con-
fession '*; for the latter, on a non-pros ^, discon-
tinuance % 7wlle prosequi '^j cassetur billa "vel breije '',
retraxit^ nonsuit ', or as in case of a nonsuit '; and
for either party, upon demurrer'', nul tiel record\
or
a There is an old rule of « Append. Chap. XXXIX.
court, requiring the fiostca to § 15, 16.
be marked in two days after <^ Id. § 17, Scc-
it comes to the attorney's « /c/. § 5 1, Sec.
hands: R. T. 2 Jac. I. reg. 2. f Id. § 65, 6.
but now, it is deemed suffi- b Id. § 67, 8.
cient to mark the fiostea, at ^ Id. § 69.
any time before the costs are » Id. § 63, 4.
taxed. 1 Cromp. 277. k Jd. § 32, Sec. 70.
»> Append. Chap. XXXIX. i Id. § 36, 7.7\.
5 1, S^c.
Vol. IT. 2 A
842 OF JUDGMENTS.
or verdict ". The present chapter will be principally
confined to the latter judgment, on an issue in fact
found by verdict; the other species of judgments
lia^'ing been already treated of.
In assumpsit^ covenant ^ case^ replevin^ and trespass^
the judgment for the plaintiff is, that he recover his
damages " and costs against the defendant; to be
levied, in an action against an executor or admi-
nistrator, of the goods of the testator or intestate, in
the hands of the defendant, if he hath so much there-
of in his hands to be administered; and if not, then
the costs to be levied de bonis propriis °. In debty the
judgment for the plaintiff' is, that he recover his debt,
together with his damages and costs ; to be levied,
in an action against an executor or administrator, of
the goods of the testator or intestate, if, &c. and if
not, then the damages and costs to be levied de bonis
propriis ''. In annuity^ the judgment is, for the plain-
tiifto recover the annuity, and arrearages of the same,
as well before the bringing of the action as after^
wards, tip to the time when judgment is given ''.
In
"" Append. Chap. XXXIX. assessed by the jury who try
§ 38, etc. 72, Sec. the issue, on a verdict.
f The damages in assmn/i- " 4 T. R. 648. 7 T. R. 359.
sit, Sec. are either confessed Append. Chap. XXXIX. § 8.
by the defendant, ascertained 18. 42.
by the court, on a bill of ex- p Append. Chap. XXXIX.
change, Sec. found by the in- § 25. 45.
quisition of a sheriff's jury, i Co. Ent. 50. Cro. Car.
on a judgment by default, or 436.
OF JUDGMENTS. 843
Li detinue^ it is for the plaintiff to recover the
goods, or their value, with damages and costs ^ In
replevin, the judgment for the defendant, at common
law, is to have a return of the goods ' ; or upon the
statute 17 Car. If. c. 7. to recover the arrearages oi
rent, or value of the goods, and costs ' ; and in other
actions, the judgment for the defendant upon a non-
pros, nonsuit or verdict, is to recover his costs only ".
The taxing costs upon a postea is considered as
signing final judgment: after which, execution may
be immediately taken out, against tlie defendant's
person or goods; but in order to charge him in exe-
cution, or bind his lands, or to proceed against him
by action of debt or scire facias on the judgment, or
against his bail on their recognisance, or if a writ of
error be brought, it is necessary that the judgment
should be entered of record, and docketed, and the
judgment-roll carried to, and filed in the treasury of
the court.
The judgment after verdict, &:c. is entered on the
issue-roir, which from thenceforth is called the judg-
ment-roll; and if the roll has already been carried in,
which seldom happens but where the plaintiff has been
ruled to enter the issue, xht postea is taken, with the
master's allocatur, to the treasury at Westminster, and
the clerk of the treasury continues the proceedings,
and
■• ApiTcnd. Chap. XXXIX. ^ Id.% 59, 60. 74.
§47, ' . /^. §5 1, Sec.
s Jd. 57, Sec. .'Intr, 681.
844
OF JUDGMENTS.
and enters the judgment. But if, as is more frequent-
ly the case, an incipitur only is made on the issue-
roll, at the time of passing the record of nisi prius,
the whole proceedings are to be entered, beginning
with the wan-ants of attorney "'. The proceedings are
continued on the issue-roll, after the award of the
venire Jacias, by the following entry : Afterwards the
process thereof is continued between the parties afore-
said^ of the plea aforesaid^ hy the jury being respited
between them^ before the lord the king at Westmin-
ster, or (by original) "wheresoe^uer, &c. until \jhe re-
turn of the distringas"] ufilesSy &c. [^as in the juratd\
according to the form of the statute in such case made
and promded^ for default of the jurors^ because none of
them did appear: At which day^ before the said lord
the king at Westminster, comes the said (plaintiff)
hy his said attorney^ and the said chief justice \_or
justices of assize^ before whom the said issue was
tried, sent hither his \_or their'] record, had in these
■words, to wit, [then follows a copy oHh^postea, from
the nisi prius record, and afterwards the final judg-
ment ''.]
These entries were formerly made by the clerks
of the chief-clerk ^, who were called enteruig clerks;
but
^■^ Jnte, 6?>\,2, which the clerks mtist an-
^ Append. Chap. XXXIX. ciently have accounted with
§ 38. the secondary see R. E. 15
y R. M. 1654. § 14. R. Car. II. Reg. ^. R. H. 15
T. 1 Jac. II. R. M. 5 Ann. & 16 Car. II. Reg. 1. R. T.
And for the times within 20 Car- II.
OF JUDGMENTS.
845
but they are now made by the attoniies^ and ought
to be written in a full fair hand, with a large margin,
of an inch at least, and a convenient distance at the
top, for binding up the same, and at the bottom, that
the writing be not rubbed out \ In this manner, the
proceedings may be entered on both sides of the roll,
beginning on the back, over against the first line of
the first warrant of attorney, and taking care to leave
a sufficient space at the end, for the co7nmittitur , and
entry oi" satisfaction, 8^,c.
The rule with regard to bringing in rolls, is that
every attorney ought to bring them into the office,
fairly engrossed, by the following times, (that is to
sa} ) the rolls of Trinity, Michaelmas, and Hilary
terms, before the essoign-day of every subsequent
term, and the rolls of Easter term, before the first
day of Trinity term '\ And formerly, no roll could
have been brought in and filed, with a post tcrmi-
num, without leave of the court ''. But in order to
accommodate the attornies, the custos brevium now
usually attends, the day but one before every term,
to receive and file their rolls ^ And a roll may
be had of a preceding term, as a matter of course,
by
'■ R. H. 1657. Jnte, 681. 87. 2 Ld. Raym. 850. 6^ Mod.
>R. E. 5 W. Ec M. M. 191.
9 W. III. T. 10 W. III. M. c R. E. 9 W. III. (a). 1 Sel.
5 Ann. 535
bR. E. 9 W. III. 1 Salk
846 OF JUDGMENTS.
by applying to the clerk of the treasury, and paying
'cl post terminum; which roll may be docketed and fil-
ed, on paying some small additional fees to the offi-
cers of the court ^.
At common law, the death of a sole plaintiff or de-
fendant, before final judgment, would have abated the
suit : but if either party after verdict had died in va-
cation, judgment might have been catered tliat va-
cation, as of the preceding term, and it would have
been a good judgment at common law, as of the pre-
ceding term ; though it be not so, upon the statute
of frauds, in respect of purchasers, but from the
signing ^. And if either party die, after a special ver-
dict, and pending the time taken for argument or ad-
vising thereon, or on a motion in arrest of judgment,
or for a ncAv trial, judgment may be entered, at
common law, after his death, as of the term in which
the postea was returnable, or judgment would other-
wise have been given, ?iimc pro tunc ^; that the delay
arising from the act of the court, may not turn to the
prejudice of the party.
So
<! 1 East, 409. T. R. 368. 7 T. R. 20.
e 1 Salk. 87. 3 Salk. 116. f 1 Leon. 187. Latch, 92. 1
I Ld. Raym. 695. 2 Ld. Sid. 462. 1 Vent. 5%. 90. S.
Rayn\. 766. 849.869. 7 Mod. C. 10 Mod. 30. 325. 1 Str.
2. 93. S. C. 3 Salk. 159. 2 427. 1 Bur. 147. 226.4 Bur.
Salk. 401. 7 Mod. 39. S. C.6 2277. 1 East, 409. Barncs,255.
Mod. 191. 3 P. Wi-ns. 399. 261.
Willes, 427. Barnes, 266. 6
or JUDGMENTS. 847
So in actions against executors or administrators,
if the application be made in a reasonable time, the
court will give the plaintiff leave to enter up judg-
ment, as of a preceding term, when it was signed,
nunc pro tunc ^. I'his however is discretionary in the
court; and being a matter of indulgence, they have
sometimes refused to allow it, after a considerable
lapse of time, where the delay has been owing to the
plaintiff or his attorney ''. And in granting this in-
dulgence, the court will take care that it shall not
operate to the prejudice of the defendant, by making
the plaintiff undertake not to disturb intermediate
payments made by the defendant ', or impeach judg-
ments obtained in the interval "". In an action of debt
on judgment, the court will not give lea\ e to enter up
the judgment nunc pro tuncy where the proceedings
were stayed pending a writ of error, and the plaintiff"
died before the affirmance of the judgment '. And in
general it should seem, that if there be a rule for
judgment, and it be not entered for many years, the
court will not suffer it to be entered, without exa-
mining how it came not to be entered before "'.
Where either party dies bctivecn Dcrdict a?id
judgment J it is enacted by the statute 17 Car. II.
c. 8.
K 6 T. R. 6. Baker v. Ba- i 6 T. R. 11.
Afr, execuU'ix, H. 35 G. lil. ^ Lloyd \. i/o7w//, admiuis-
Lloyd V. Hoivell^ administra- tratrix, 11. 37 Geo. III.
trix, H. Z7 G. III. 1 1 T. R. 637.
h 1 Str. 639. Barnes, 262. •" 6 Mod. 59.
see also 6 Mod. 191.
848 OF JUDGMENTS.
c. 8. " that his death shall not be alleged for error,
*' so as the judgment be entered within two terms af-
" ter the verdict." In the construction of this statute
it has been holden, that the death of either party be-
fore the assizes is not remedied ; but if the party die
after the assizes begin, though before the trial, that
is within the remedy of the statute ; for the assizes are
considered but as one day in law, and this is a reme-
dial act, which shall be construed favourably ". The
judgment upon this statute is entered by or against
the party, as though he were alive °; and it should be
entered, or at least signed '', within t\vo temis after
the verdict.
By a subsequent statute ""j it is enacted " that in
" all actions to be commenced in any court of re-
" cord, if the plaintiff or defendant happen to
"die after interlocutory and before final judgment^
" the action shall not abate by reason thereof, if
" such action might have been originally prose-
" cuted or maintained, by or against the executors
" or administrators of the party dying; but the
" plaintiff, or if he be dead after such interloCu-
" tory judgment, his executors or administrators,
" shall and may have a scire facias against the de-
" fendant,
" 1 Salk. 8. and see 2 Ld. p 1 Sid. 385. Barnes, 261.
Raym. 1415. in notis. 7 T. R. q Stat. 8 & 9 W. III. c. H .
31. ^6.
° 1 Salk. 42.
OF JUDGMENTS. 849
** fendant, if living after such interlocutory judg-
*' ment, or if he died after, then against his execu-
" tors or administrators, to shew cause why damages
*' in such action should not be assessed and recover-
'* ed by him or them." And by the same statute '',
*' if there be iwo or more plaintiffs or defendants y
" and one or more of them die, if the cause of
" action survive to the surviving plaintiff or plain-
*' tiffs, or against the surviving defendant or defen-
*' dants, the writ or action shall not be thereby
** abated; but such death being suggested upon the
" record, the action shall proceed, at the suit of the
** surviving plaintiff or plaintiffs, against the surviv-
** ing defendant or defendants." And if the plaintiff
become bankrupt, after interlocutory judgment, his
assignees may proceed to final judgment ' and exe-
cution', in the bankrupt's name, without a scire facias.
So where the plaintiff after verdict, was discharged
under an insolvent act, the court held that the assig-
nee might make use of liis name, in entering up
judgment, and talking out execution \
The judgment, by general intendment of law,
has relation to the first day of the term whereof it is
entered,
1 § 7. 372. 378, and Winter and
«■ 2 Wil3. 358. 374. 378. others v. Kretchnian, 2 T. R.
» 3 T. R. 437. but note, 45. and see 1 Mod. 93. 1
there was a scire facias after Vent. 173. S. C. 5 Mod. 58. I
judgment, to warrant execu- T. R. 463. \
tion, in the cases of Gibbins « Abbias v. Barnard, M. 35
and others v. Mantle, 2 Wils. G. III.
- Vol. II. 2 B
856 or JUDGMENTS.
entered'', unless any thing appear on the record,
shewing that it cannot have that relation ' ; and as
against the defendant and his heirs, it binds a moi-
ety of all the freehold lands and tenements '% which
he or any person or persons in trust for him *, was
or were seised of, at or after the time to which the
judgment relates. And a court of equity will not
oblige a judgment- creditor to wait, till he is paid
out of the rents ; but will accelerate the payment,
by directing a sale of the moiety ^ . Where there
is a term attendant on the inheritance, a judgment
is an equitable lien on the inheritance, and conse-
quently affects the term '^\ but generally speaking,
a judgment does not bind leasehold property, which
is affected only by the writ of execution ^, and, as
against purchasers, by the delivery of it to the
sheriff ^
As Xo freehold lands, they are bound at common
law, from the time of the judgment, so that exe-
cution may be had of these, though the party ali-
ene bond fide before execution sued out. There-
fore
n 3 Salk. 212. 1 Wils. 39. the lien created by it. 1 Salk.
7 T. R. 2 . In actions by ori- 80.
ginal^ the judgment seems to ^ Stat. 29 Car. II. c. 3. § 10.
relate to the essom-day; in ac- 2 Vern. 248.
tions by bill^ to the first day in y 2 Atk. 610. Amb. 17. S.
full term. See 1 Sel. 8. and C.
the cases there cited. ^ 2 Vera. 525.
V 3 Bur. 1696. a Godb. 161. 8 Co. 171.
w Stat. Westm. 2. (13 Ed. 2 Nels. Abr. 783.
I.) c. 18. And bringing debt b Stat. 29 Car. II. c. 3. i
on a judgment is no waiver of 16.
OF JUDGMENTS. 851
fore if a man has judgment for a debt, and the
debtor, before execution sued, aUenes by fine, and
five years pass, yet the plaintiff may still sue out
execution ^ But if one article to buy an estate, and
pay the purchase-money, and afterwards a judgment
is recovered against the vendor by a third person,
who had no notice, yet this judgment shall not in
equity affect the estate; because from the time of
the articles, and payment of the money, the vendor
was only a trustee for the purchaser '^. In such case
however, it must be understood, that the considera-
tion paid is somewhat adequate to the thing purcha-
sed ; for if the money be but a small sum, in respect
of the value of the land, this shall not prevail over a
mesne judgment-creditor ^ And a mortgagee for a
valuable consideration, and without notice ^ of such
a covenant, shall hold place against the covenantee;
for in this case, the money is lent upon the title ajid
credit of the estate, and attaches upon the land; but
it is not so in the case of a judgment- creditor, who
(for aught appears) might have taken out execu-
tion against the person or goods of the party,
that gave the judgment; and a judgment is
only
«: 1 Chan. Cas. 268. 1 Mod. was held, by Lord Chancellor
217. Taidot, not to amount to con-
d 1 P. Wms. 278. 10 Mod. structive notice; for judj;:-
468. 2 Eq. Cas. Abr. 683. ments, he said, are infinite. 2
e 1 P. Wms. 282. Eq. Cas. Abr. 682. but see
f Docketing a judgment Amb. 680.
852
OF JUDGMENTS.
only a general security, not a specific lien upon the
land ^.
If A. and B. recover several judgments against
C, and A. sue out an elegit ^ and have a moiety of
C's lands delivered to him, and then B. sue out an
elegit, the sheriff it seems can only extend a moiety
of the remaining lands". But if /?. have two judg-
ments against (?., and in the same term take out two
elegitSy on the one he may have a moiety of the
whole, and on the other the other moieiy, and is not
restrained on the latter, to a moiety of the moiety;
for in judgment of law, the v/hole term is but as
one day '. On lending money therefore, il" the lender
take two several bonds and warrants of attorney, one
for a part, the other for the residue of the money,
and enter up two several judgments theieon, of the
same ternni, he may take the \\'hoie of the defen-
dant's lands under them ^
A. a trader, seised of lands in fee, gives a
Judgment to B., and then, in consideration of
5000/. paid down, and 650/. to be paid at Christ-
7nas, articles to sell the lands to C. and let him
into possession at Michaelmas, and afterwards
becomes bankrupt, the judgment not being served
and executed, and the 650/. remaining unpaid,
B. shall
t 1 P. Wms. 279.
^ Cro. Eliz. 483. 2 Bac.
Abr. 350. Gilb. Exec. 55, 6.
But qu. whether it must not
be understood in this case,
that the elegits were sued out
in different terms ?
i Ilardr. 23.
k Gilb. Exec. 56.
OF JUDGMENTS. 85-3
B. shall only come in pro rata with the rest of the
creditors; the words of the statute 21 Jac. I. c.
19. ) 9. being full and plain, that all the creditors
of a bankrupt, unless there ia a mortgage, shall
be equally paid \ But if A. a trader, confesses
judgment to B. and then sells and conveys the
land, for a valuable consideration, to C. and af-
terwards becomes bankrupt, it seems that the
judgment- creditor shall extend the land, in the
hands oft*., who bought prior to the bankruptcy,
this not prejudicing the other creditors.
On a judgment against A. upon his own bond,
a moiety only of his freehold property can be taken
in the Jiands of his heir'". But if a judgment be
obtained against an heir, on the obligation of his
ancestor, the plaintiiT was at common law entitled
to execution out of the whole of the property, which
he had by descent, at the time of issuing the origi-
nal writ ", or filing the bill ". And by the statute
3 JV. &. M. c. 14. \ 5. " in all cases where any
*' heir at law shall be liable to pay the debt of his
" ancestor, in regard of any lands, tenements or
" hereditaments descending to him, and shall sell,
'* aliene, or make over the same, before any
" action brought, or process sued out against him,
*' such heir at law shall be answerable for such debt
" or
I 1 P. Wms. 737. 739. a. b. 3 Co. 12. a. 2 Atk. 609,
m Dyer, 271. a. Carth.107. 10. Amb. 16, 17. S. C.
3 Bac. Abr. 25. o Carth. 245. and see 2
" Plowd. 441. Co. Lit. 102. Wms. Saund. 7. (4).
854
OF JUDGMENTS.
" or debts, in an action or actions of dcbt^ to the
" value of the said land, so by him sold, aliened,
" or made over; in which cases all creditors shall
" be preferred, as in actions against executors and
" administrators; and such execution shall be taken
*' out, upon any judgment or judgments so obtained
" against such heir, to the value of the said land, as
" if the same were his own proper debt or debts;
'* saving that the lands, tenements, and heredita-
" ments bona fide aliened before the action brought,
" shall not be liable to such execution." A bond,
therefore, is in some cases, a preferable security to
a judgment.
The judgment against an he'ir^ on the bond of
his ancestor, is general or special^. In debt against
an heir, who pleaded riens per discern, or any other
plea which was false within his own knowledge,
and found against him, the judgment at common
law was general, to recover the debt, and not
special, to be levied of the lands descended "J. So
if judgment be given against an heir by ni/ii/ dicit "j
or ?ion sum informattis^, or by confession, without
shewing
P2 Rol. Abr. 70, 71. and
see Vin. Abr. tit. Heir, C. and
Bac. Abr. tit. Heir and Ances-
tor, H.
1 Dyer, 149. a. Bro. Abr.
iii. Assets fier discent, 3.; but
see the statute 3 W. and M. c.
14. § 6. hy which the judg-
ment on a plea of riens per dis-
cent, seems to be altered.
•• Dyer, 344. a. b. Plovrd.
440. Cro. EHz. 692.
s Dyer, 344. a. b. Plowd.
440.
OF JUDGMENTS. 855
shewing in certain what assets he has by descent %
the judgment is general: And if the profits of the
lands descended, from the death of the ancestor
to the time of bringing the action, are sufficient
to satisfy the demand, and the plaintiff will shew it
to die court, in an action of debt against an heir,
and the defendant cannot deny it, the plaintiff
shall have a general judgment, and execution
presently". But in an action of debt against an
heir, if he acknowledge the action, and shew the
certainty of the assets which he has by descent,
the judgment shall be special, to recover the debt,
to be levied of the lands descended ''. And if the
defendant plead non est factum^ or any other plea
which is not false within his own knowledge, there
shall be like a judgment '\
By the statute 3 /F". & M. c. 14. S 6. " where
'* any action of debt upon specialty is brought
'^' against an heir, he may plead riens per discent,
" at the time of the original writ brought, or the
" bill filed against him; and the plaintiff in such
** action may reply, that he had lands, tenements
" or hereditaments from his ancestor, before the
*' original writ brought, or bill filed; and if upon
** issue joined thereupon, it be found for the
" plaintiff, the jury shall inquire of the value of
" the
« Dyer, 344. a. b. Plowd. -^ 2 Rol. Abr. 70. Dyer,
440. but see Dyer, 149, a. 149. a. 373. b.
» Dyw, 344. b. vv Cro. Car. 436, 7.
856 OJ JUDGMENTS.
"' the lands, tenements or hereditaments so dc-
'* scended, and thereupon judgment shall be given,
'' and execution awarded, as therein directed;
" but if judgment be given against such heir, by
" confession of the action, without confessing the
'' assets descended, or upon demurrer, or nihil
" dicit^ it shall be for the debt and damages,
'* without any writ to inquire of the lands, tene-
" ments or hereditaments so descended." The judg-
ment against a devisee upon this statute, is the same
as against an heir ".
The relation of judgments to the first day of the
term, is taken away, as against purchaser's^ by the
statute of frauds and perjuries ^; by which it is
enacted, that " the judge or officer who shall sign
" any judgments, shall, at the signing of the
*' same, set down the day of the month and year
" of his so doing, upon the paper-book, docket,
*' or record which he shall sign; which day of the
" month and year shiill be also entered, upon the
" margent of the roll of the record, where the said
*' judgment shall be entered. And such judg-
*' ments, as against purchasers bond Jide, for valu-
*' able considerations, of lands, tenements or he-
*' reditaments to be charged thereby, shall in
*' consideration of law, be judgments only from
" such
« See the statute, § 3. 7. counties Palatine, by the 8 G.
y 29 Car. II. c. 3. § 14, 15. I. e. 35. § 6.
extended to Hales, and the
OF JUDGMENTS. 857
" such time as they shall be so signed, and shall not
" relate to the first day of the term whereof they are
" entered, or the day of the return of the original, or
"filing the bail."
This statute is confined to purchasers; and does
not apply, as between the parties to the suit. There-
fore if the defendant die in vacation, judgment may
still be entered after his death, as of the preceding
term, when he was living; and it will be a good
judgment at common law, as of that term"^; but
then, the roll ought to be brought in and filed be-
fore the essoign-day of the subsequent term ^. And
it is said, that if judgment be signed in term-time,
and in the subsequent vacation the defendant sell
lands, and before the essoign-day of the next term
the plaintiff enter his judgment, it shall affect the
lands in the hands of the purchaser ^.
The operation of judgments, upon purchasers
and mortgagees, is still further limited and restrain-
ed by the 4 & 5 IF. & Tlf. c. 20. ^ 3. by which it
is enacted, " that no judgment not doggcted and
" entered, according to that act, shall affect any
" lands or tenements, as to purchasers or mort-
" gagees, or have any preference against heirs,
" executors
^ 1 Salk. 87. 3 Salk. 116. 6 T. R. 368. 7 T. R. 20.
1 Ld. Raym. 695. 2 Ld. ^ 1 Salk. 87. 2 Ld. Raym.
Raym. 766. 849. 869. 7 Mod. 850. 6 Mod. 191.
2. 93. S. C. 2 Salk. 401. 7 ^ « Mod. 191. Tamen Qu.
Mod. 39. S. C. 3 Salk. 159. if the judgment be not docket-
3 P. Wms. 399. Willcs, 428. ed at the time of the sals?
Vol. II. 2C
858 OF JUDGMENTS.
" executors or administrators, in the administration
*' of their ancestors, testators, or intestates' effects."
By this statute, a debt on judgment against a tes-
tator or intestate, not docketed according to the di-
rection of the statute, is put on a level with simple-
contract debts: And therefore, on a plea of plene
administrai}it, to debt on judgment against the intes-
tate, not docketed, the defendant may give in evi-
dence payment of bond and other specialty debts,
which exhausted all the assets '^. And where leave is
given to enter up judgment as of a preceding term,
7iimc pro tiinc^ the court, in order that it may not
affect purchasers and mortgagees, will order it to be
docketed of the term in which the application is
made ^.
The dogget^ or as it is commonly called, the dock-
et or docqiiet^ is an index to the judgment, invented
by the courts for their own ease, and the security of
purchasers, to avoid the trouble and inconvenience
of tuiTiing over the rolls at large ^. The practice of
docketing judgments seems to have first obtained in
the court of Common Pleas, where the dockets were
formerly entered on a separate roll, called the dock-
et-roll or common docket; which was of so higli
an authority, as even to warrant an amendment of
the judgment itself^. But in this court, the docket
was
c 6 T. R. 384. 1 Esp. Cas. trix, H. 35 G. III.
Xi. Pri. 313. S. C. 1 Bos. 8c e Gilb. C. P. 164, 5.
Pul. 30r. f T. Raym. 39. Sid. 70.
d Baker v. Baker, Execu- Cro. Car. 574.
OF JUDGMENTS. 859
was originally nothing more than a note in parch-
ment or paper, containing the christian and sur-
names of the plaintiff and defendant, the debt and
damages recovered, with the term and number of
the judgment- roll ^. By a subsequent regulation, the
defendants' names were required to be entered in a
remembrance or docket alphabetically, for better
finding out the judgments ^. And at length, by the
statute 4 & 5 /T. & M. c. 20. \ 2. it was enacted,
' that the clerk of the essoins of the court of Com-
' mon Pleas, and the clerk of the doggets of the
* court of King's Bench, &;c. shall make an alpha-
' betical dogget, by the defendants' names, o,f all
* the judgments entered in their respective courts,
' of Michaelmas and Hilary terms, before the last
' day of the ensuing terms; and of the judgments
' of Easter and Trinity terms, before the last day of
' Michaelmas term ; under the penalty of 100/. :
' Which dogget shall contain the names of the
' plaintifl' and defendant, with the addition of the
' latter, (if in the record of the judgment,) the debt,
' damages and costs recovered, the venue and num-
' ber of the judgment- roll; and shall be fairly put
* into and kept in books in parchment, to be search-
' ed and viewed by all persons, at reasonable times,
' paying for every term's search 4</. and no more.''
This
kR. E. 17 Jar. 1 h R,E. )657.
860 or JUDGMENTS.
This statute did not supersede the former prac-
tice, of docketing the judgment in parchment or
paper, which is still necessary to be done by the at-
tornies, on entering and bringing in their rolls; but
was intended to operate, in addition to that practice,
by requiring the dockets to be entered in alphabeti-
cal order, b}'^ the officers of the court. Before the
making of this statute, the judgment bound the
lands, and the docket was nothing more than an in-
dex, to find it readily '. But now it is deemed neces-
sary, that the judgment should be docketed, in order
to bind the lands, as to purchasers and mortgagees :
And if it be not docketed '', or if there be a false
docket, which is as none \ though a right judgment,
the purchasers or mortgagees will be safe ; and in
the latter case, the party grieved must take his re-
medy against the attorney or officer, for not docket-
ing it truly.
The judgment should be docketed at the time of
bringing in the roll, or entering it thereon, if already
brought in. But though the judgment be not dock-
eted, yet under particular circumstances, a pur-
chaser with notice may be affected by it, in a court
of equity. Thus, where a bill in equity w^as filed,
to have satisfaction of a judgment, against a pur-
chaser of the equity of redemption of land, or to
redeem
i Gilb. C.P. 165. 11 Bac. Abr. 103. Gilb. C.
1 1 Str. 639. and see Barnes, P. 165. 1 Wils. 61. 2 Str.
261,2. 1209. S.C.
OF JUDGMENTS. 861
redeem incumbrances, &cc. and it appeared, that the
purchase was made in 1718, and the judgment not
docketed till 1721; the defendant insisted on the
statute 4 & 5 /F. Sc M. c. 20. : On tlie other hand
it was contended, that the defendant (the purchaser)
had notice of this judgment, and an allowance for it
in the purchase, and that raised an equity for the
plaintiff against him. By Lord Chancellor Maccks-
Jield^ " it is plain the defendant had notice of the
judgment, and did not pay the value of the estate,
and that is a strong presumption of an agreement to
pay off the judgment; and since the plaintiff cannot
proceed at law against the defendant upon the judg-
ment, for want of docketing it in due time, he
ought to be relieved in a court of equity :" Decreed,
that the defendant pay to the plaintiff, the money
bond fide due upon the judgment •".
If an attorney neglect to enter and docket the
judgment in due time, by which a loss arises to his
client, it seems that he is liable to an action " : And
Lord Mansfield intimated, that it very much con-
cerned the chief-clerk, to take care that judgments
be actually entered up on the roll in due time, and
docketed ;
"> 7 Vin. Abr. p. 53. 2 Eq. being docketed, notice to the
Cas. Abr. 684. but see 7 Vin. purchaser or no notice is im-
Abr. p. 54. where it is said, material. And see Cowp. 2S0.
that the statute being express 712.
and positive, that a judgment " 1 Sir. 6."''J.
shall not bind lands, without
B62 OF JUDGMENTS.
docketed ; for that after he has received his fees for
making such entr}^, he would be liable to an action
upon the case, to be brought by a purchaser, who
should have become charged with it, and had search-
ed the roll, without finding it entered up : And he
said, that the attorney who had undertaken to do
this, and neglected it, would be liable mdeed to the
chief-clerk; but still the chief-clerk \vould be liable
to the purchaser, who had suffered by this neglect °.
There is still another circumstance, necessary to
give effect to the judgment, as against purchasers
and mortgagees of lands in Middlesex and Tor ks hire;
namely, that it should be registered: for, by the 5
A7m. c. 18. ^ 4. and several subsequent statutes'',
" no judgment shall affect or bind any manors,
" lands, tenements or hereditaments, in those coun-
" ties, but only from the time that a memorial of
" such judgment, shall be entered at the rcgister-
*' office, in such manner as therein is directed."
During the same term in which the judgment
is given, it is amendable at common law, in form
or in substance *> ; but after that term, it is amend-
able no further than is allowed by the statutes of
amend-
o 2 Bur. 722. Sel. 537. Imp. K. B. 401.
P6 Ann. c. 35. § 19. 7 Append. Chap. XXXIX. § 76,
Ann. c. 20. § 18. 8 G. II. c. &c.
6. § 1. 8c 18. For the mode of i 8 Co. 157. Gilb. C. P.
registering judgments, see 1 108.
OF JUDGMENTS. 865
amendments *■. Upon these statutes it has been hol-
den, that if there be any thing to amend by, the
judgment may be amended in point of form, for the
misprision of the clerk " ; and it is amendable by the
verdict ^ In a qui-tam action for a penalty, on the
statute of usury, it is not cause of error to enter a
judgment of misericordia'^: And in other actions,
the want of a capiatur or misericordia^ or the sub-
stitution of one for the other, is aided by the sta-
tutes of jeofails "^ ; which have been construed to
extend to the addition of a capiatur^ where none
lies'": And the loss of the judgment-roll may be
supplied by a new entry ''.
«• 1 Wils. 61. 2 Str. 1209. V 16 8c 17 Car. II. c. 8. 4
S, C. 4 Bur. 1988. Ann. c. 16. §2i
s2 Str. 1132. 1156. 1182. w i Str. 313.
5 Bur. 2730. 3 T. R. 349. ^ Id. 141. 2 Str. 833. 2
t 2 Str. 787. AntCy 662. Bur, 722.
« 6 T. R. 255.
CHAP-
[ 864 ]
CHAPTER XL.
Of Costs.
TNCIDENT to the judgment are the Costs ^ or
expences of the suit; which are interlocutory or
final: the former, or such as are awarded on inter-
locutory matters, arising in the course of the suit,
have been already considered, in treating of the mat-
ters to which they relate; the latter, or such as de-
pend on the final event of the suit, will be the sub-
ject of the present chapter *.
No final costs were recoverable, by the plaintiff
or defendant, at common law *". But by the sta-
tute of Gloucester^ (6 Ed'Ui. I.) c. 1. § 2. it is pro-
vided, " that the demandant may recover against
" the tenant, the costs of his ijorit purchased,
" (which, by a liberal interpretation, has been
" construed to extend to the <whole costs of his
" suit,)
^ The subject of costs, in-
terlocutory as well as final, is
treated of in a clear and per-
spicuous manner by Mr. Hid-
lock: And the table of costs, by
Mr. Palmer, will also be found
a valuable acquisition to the
profession, as it contains a full
collection of bills of costs, ac-
curately drawn, and methodi-
cally arranged, by which the
practiser may not only know
how to charge for his business,
but may see beforehand in
what order it is to be conduct-
ed.
'• : Inst. 288. Hard. 152.
'
OF COSTS.. 865
" suit%) together with the damages given by that
" statute; and that this act shall hold place, i?i all
^' cases where a man recovers damages.''^ This was
the origin of costs de incremento '^: And hence the
plaintiff has, generally speaking, a right to costs,
in all cases where he was entitled to damages, an-
tecedent to, or by the provisions of, the statute of
Gloucester *= ; as in assumpsit, covenant, debt on con-
tract, case, trover, trespass, assault and batterj'^,
replevin, ejectment, dower unde nihil habet \ Ike. ;
or where, by a subsequent statute, double or treble
damages are given, in a case where single damages
were before recoverable^; as upon the 2 Hen. IV.
c. 11. for wTongfully suing in the admiralty court ^,
&c. And he has also a right to costs, in all cases
where a certain penalty is given by statute to the
party grieved ' ; for otherwise the remedy might
prove inadequate.
But the statute of Gloucester did not extend to
cases where no damages were recoverable at com-
mon law, as in real actions '', scire facias^ prohibi-
tiofi •, &c. ; nor where double or treble damages
were
>^ 2 Inst. 288. Abr. 574. Skin. 363. Carth.
*Gilb. Eq. Rep. 195. 230. 1 Salk. 206. 1 Ld.
elOCo. 116. a. Raym. 172. Willes, 440.
f2Bac.Abr. 148.^«^e,799. Say. Costs, 11, 7 T. R. 267.
K 10 Co. 116. a. 2 Inst. 1 H. Blac. 10.
289. Cowp. 368. k Ante, 799.
h Ante, 800. ' Comb. 20.
iCro. Car. 560. I Roll.
Vol. IT. 2D
866 OF COSTS.
were given by a subsequent statute, in a new case
where single damages were not before recoverable;
as in ivaste, against tenant for life or years "\ upon
the statute of Gloucester, (6 Edw, I.) c. 5. ; for not
setting out tithes % upon the 2 & 3 Edw, VI. c.
13.; or for driving a distress out of the hundred",
upon the 1 & 2 Ph. & M. c. 12. Nor does this
statute extend to popular actions, where the whole
or part of a penalty is given by statute to a com-
mon informer P; as upon the 5 Eliz. c. 4. § 31.
for exercising a trade, without having served an
apprenticeship; or upon the statute of usury, 12 Ann^
Stat. 2. c. 16. In these and such like cases there-
fore^ the plaintiff is not entitled to costs, unless
they are expressly given him by the statute; but
wherever they are so given, he is of course entitled
to them.
Where single damages are given by a statute,
subsequent to the statute of Gloucester, in a new-
case wherein no damages were previously recover-
able, it has been doubted whether the plaintift'
shall recover costs, if they are not mentioned in
the statute. The rule in PilfoWs case is, that he
shall
™ 2 Hen. IV. 17. 9 Hen. v l Roll. Abr. 574. 1 Vent.
VI. 66. b. 10 Co. 116. b. ISS.-Carth. 231. 1 Salk. 206.
2 Inst. 289. Jnte, 800. 1 Ld. Raym. 172. Cas. Pr. C.
"Moor, 915. Noy, 136. B. 87. Barnes, 124. S. C.
Hardr. 152. Cowp. 366. 1 H. Blac. 10,
2 Inst. 289. Dyer, 177. Bui. .AL Pn. 3,33.
but see Cro. Car. 560. 1
Roll. Abr. 574.
OF COSTS. 867
shall not •" : and accordingly it is holden, that he is
not entitled to costs in quare impedit \ wherein
damages are given by the statute of Westm. 2.
(13 Ed-w. I.) c. 5. § 3. But the rule in Pilf old's
case is contradicted by lord Coke himself', who
says, that " this clause (respecting the statute of
*' Gloucester''^ holding place, in all cases where a
" man recovers damages) doth extend to give
" costs, where damages are given to any demand-
" ant or plaintiff, in any action, by any statute
" made after this parliament." And the rule has
been since narrowed, by several modem decisions;
from whence it may be collected, that the plain-
tiff is entitled to costs, in all cases where single da-
mages are given by statute to the party grieved ^j
although costs are not particularly mentioned in the
statute.
In several of the foregoing cases, wherein costs
were not recoverable by the plaintiff at common
law, they are expressly given him by the statute 8
h 9 PF, III. c. 11. by which it is enacted, that
*' in all actions of waste, and actions of debt upon
" the statute for not setting forth tithes, wherein
" tlie single value or damage found by the jury
" shall
q 10 Co. 116. a. « 2 Inst. 289.
'■2 Hen. IV. 17. 27 Hen. '2 Wils. 91, Barnes, 151.
VI. 10. 10 Co. 116. a. 2 S. C. 3 Bur. 1723. Say.
Inst. 28l 362. Barnes, 140. Costs, 10. S. C. 1 T. R. 71.
and see Cro. Car. 360. Carth. 6 T. R. 355. 7 T. R. 267.
231. Covvp. 367, 8. ante, 800. but see Cowp. 367, 8,
868 OP COSTS.
" shall not exceed the sum of twenty nobles; and
" in all suits upon any writ or writs of scire facias,
'•' and suits upon prohibitions, the plaintiff obtaining
'■'■ judgment, or any award of execution, after plea
" pleaded or demurrer joined therein, shall likewise
" recover his costs of suit; and if the plaintiff shall
'' become nonsuit, or suffer a discontinuance, or a
'' verdict shall pass against him, the defendant shall
" recover his costs, and have execution for the same
" \yY capias ad satisfaciendum, fieri facias, ox elegit.''''
Upon this statute there have been the following
determinations.
In an action of debt for the penalty of the statute
2 & 3 Edw. VI. c. 13. for not setting out tithes,
^vith a count for the single value, after a demurrer
to the declaration, the parties submitted to arbi-
tration, and the arbitrator awarded the single value
to be less than twenty nobles (6/. 13^. 4^/.); the court
held, that the plaintiff v/as not entitled to costs on
the counts for the penalty, under the statute of 8 &
9 JV. III. c. 11. the value not having been found
by a jury ; but they allowed him to have the costs
taxed, on the count for the single A^alue ".
In Prohibition, the rule is, that the plaintiff, suc-
ceeding after plea pleaded or demurrer joined, ought
to have his costs from the time of the suggestion,
or
^ 1 H. Blac. 107. and see Barnes, 150.
li
OF COSTS. 869
or first motion for a prohibition, and all costs inci-
dent and subsequent thereto ' . And where the de-
fendant pleaded nothing to the merits, but only that
he did not proceed in the spiritual court after the
prohibition, the court ordered the defendant to pay
the plaintiff's costs of the proceedings in prohibi-
tion '\ Where the defendant in prohibition lets
judgment go by default, the plaintiff is entitled, by
the common law, to a Mrit to inquire of his damages.,
for the contempt in proceeding after the prohibition
delivered ; and of consequence, by the statute o^ Glou-
cester., to his costs "^. In this case however, the plain-
tiff is only entitled to costs, from the time that the
rule for a prohibition was made absolute, as the de-
fendant could not possibly be in contempt before ^ :
And where the plaintiff was nonsuited, it was holden
that the defendant ought only to have tlie costs of
the nonsuit, and not what were incurred by oppo-
sing the rule to shew cause, why the writ of prohi-
bition should not be granted \ If judgment be
given for the plaintiff, as to part of what is in issue,
he is entitled to costs, although a consultation be
granted as to the residue =*: And in like manner, if
the defendant prevail as to part, he is entided to
costs.
^ Cas. Pr. C. B. 11. 1 Str. y Id.2\.
s:. 2 Str. 1062. z Say. Costs, 137.
''•' Barnes, 148. a 2 Str. 1062, 5-.
- Cas. Pr. C. B. 20,
870 OF COSTS.
costs ^. But it seems, that if the defendant succeed
upon demurrer, he is not entitled to costs''; this
being' a casus omissus out of the statute. There is a
proviso in the statute ^^ that it shall not extend to
executors or administrators; and hence it has been
determined, that in prohibition, they are not hable
to the payment of costs "".
The plaintiff's general right to costs being thus
settled and established, upon the footing of the
statute of Gloucester^ has been since altered, re-
strained and modified, by subsequent statutes.
The first statute that restrained the plaintiff's
right to costs, was the 43 Eliz. c. 6. (extended
to Wales, and the counXiQs-paladney by the 11 &
12 /F. III. c. 9.); by which it is enacted, that
" if in any personal action, to be brought in any
*' of her majesty's courts of Westminster, not being
" for any title or interest of lands, nor concerning
" the freehold or inheritance of any lands, nor for
" any battery, it shall appear to the judges of the
" same court, and be so signified by the justices
" before whom the same shall be tried, that the
" debt or damages to be recovered tlierein shall
" not amount to the sum of forty shillings, that
" in every such case, the judges or justices before
'' whom such action shall be pursued, shall not
" award
i> Barnes, 138,9. *= Cas. Pr. C. B. 158. Pr.
c Bryme7- and Atkyns, H. Reg. 118. Barnes, 127. 129.
22 Geo. III. C. B. S. C. 3 East, 202.
A%5.
OF COSTS. 871
" award to the plaintiff any more costs, than the
" sum of the debt or damages so recovered shall
*' amount to, but less at their discretion." The
intention of this statute was to confine trifling
actions to inferior courts^; and a certificate may-
be granted upon it, at any time after the trial of
the cause •''. The first instance of a certificate being
granted upon this statute, was in the case of White
V. Smith, E. 17 Geo. II. ; wherein Willes Ch. J.
certified in an action for taking sand \ And since
that time, there have been several instances of such
certificates '. But as the judges, for a long time,
were unwilling to certify upon this statute, think-
ing it hard to deprive a plaintiff of his right to costs,
merely because he had resorted to a superior court,
when perhaps he could not have obtained justice
in an inferior one, the legislature was obliged to
inteqiose its authority, still farther to guard against
trifling and vexatious actions.
Thus, by the 3 Jac, I. c. 15. \ 4. it is enacted,
that " if in any action of debt, or action upon the
*' case upon an assumpsit for the recovery of any
" debt, to be sued or prosecuted against any citi-
*' zen and freeman of the city of London, or any
•' other person, being a victualler, tradesman or
" labouring
f Gilb. Eq. Rep. 196. S. C. 3 Wils. 325.
Gilb. C. P.261, 2. i2 Str. 1232. 1 Wils. 93.
K Say. Costs, 18. 3 T. S. C. 3 Wils. 325. Say, Rep.
R. 38. (d). 250. 2 Wils. 258. 3 T. K
>» 2 Str, 1232. I Wils. 93. sr.
872 OF COSTS.
" labouring man, inhabiting within the said city
" or the liberties thereof, in any of the king's courts
" at Westminster^ or elsewhere out of the court of
" requests for the same city, it shall appear to the
" judge or judges of the court Avhere such action
*' shall be sued or prosecuted, that the debt to be
" recovered by the plaintiff shall not amount to
"the sum of forty shillings, and the defendant
*' shall duly prove, either by sufficient testimony or
" his own oath, that at the time of commencing
" such action, the defendant was inhabiting and
" rcsiant in the city of London or the liberties
" thereof, the said judge or judges shall not allow
" to the plaintiff any costs of suit, but shall award
*' the plaintiff to pay so much ordinary costs to the
*' defendant, as the defendant shall justly prove,
" before the said judge or judges, it hath truly
" cost him in defence of the suit."
The jurisdiction of the court of requests for
London v\as extended, by the 14 Geo. II. c. 10.
to " e'Dery citizen and freeman of the city of Lon-
" don^ and every other person and persons inhabit-
" ing within the said city or its liberties, and also
" to persons renting or keeping any shop, shed,
"stall or stand, or seeking a livelihood there, who
" have debts owing them, not exceeding the sum
*' of forty shillings, by any person or persons inha-
" biting or seeking a livelihood within the said city
" or its liberties, during their respective inhabi-
" tancy or seeking a livelihood as aforesaid ^" And
by
.i See 5 T. R. 535. I East, 353, 353. (c). S. C. riteil
OF COSTS. 873
by the 39 h 40 Geo. III. c. 104'^. it was still further
extended to " debts not exceeding the sum of 51 K
"due to any person or persons, whether residing
" within the city of London or elsewhere, or to bo-
" dies politick or corporate, and fraternities or bro-
" therhoods, whether corporate or not corporate, from
" any person or persons, residing or inhabiting with-
" in the said city or its liberties, or keeping any
*' house, warehouse, shop, shed, stall or stand, of
" seeking a livelihood, or trading or dealing within
" the same city or liberties '". And if any action or
" suit shall be commenced in any other court than
** the said court of requests, for any debt not ex-
" ceeding the sum of 5/., and recoverable by virtue
" of the former acts, or of this act, in the said court
" of requests, the plaintiff or plaintiffs in such ac-
*' tion or suit shall not, by reason of a verdict for
" him, her or them, or otherwise, have or be entitled
" to any costs whatsoever; and if the verdict shall
" be given for the defendant or defendants in sucli
*' action or suit, and the judge or judges before
*' whom the same shall be tried or heard, shall
** think fit to certify that such debt ought to have
" been recovered in the said court of requests, then
" such defendant or defendants shall ha\e double
" costs, and shall have such remedy for recovering
" the
•« This act of parliament took on the 9th of July preceding,
effect from the 30th o{ Sefiiem- 2 East, 135.
ber 1800, and not from the '§2.
passing of the act, which was '" § 5.
I Vol. II. 2E
874 OF COSTS.
" the same, as any defendant or defendants may have
" for his, her or their costs, in any cases by lavv'\"
This act of parHament has been construed to extend
to an action of debt for less than five pounds, on the
judgment of a superior court °.
Towards the latter end of the last reign, several
acts of parliament were also made, establishing courts
of conscience in various districts, in and about the
metropolis ; as in the town and borough of South-
uoark, &c. by the 22 Geo. II. c. 47. (explained and
amended by the 32 Geo. II. c. 6.); in the city and
liberty of IVestminste?; and part of the dutchy of
Lancaster, by the 23 Geo. II. c. 27. (explained and
amended by tlie 24 Geo. 11. c. 42.); and in the Tow-
er-hamlets, by the 23 Geo. II. c. 30. And by the 23
Geo. II. c. 33. the county court of Middlesex was
put on a different footing, for the more easy and spee-
dy recovery of small debts.
In these acts of parliament there are exceptions,
relating to particular causes and pejsons, of which,
and over whom, the courts have no jurisdiction.
Thus, in the 3 Jac. I. c. 15. there is an exception
or proviso ^, that " it shall not extend to any debt
*' for rent upon any lease of lands or tenements, or
" any
n§ 12. ment of the court of requests for
•^ 2 Bos. & Pul. 588. but see London. Sed quxre, whether
3 Esp. Cas. M. Pri. 280. the plaintiff would have been
where an action of debt was entitled to costs in such action,
brought in a superior court for p § 6. and see the statute 39
less than five poundsonajudg- Sc 40 G. III. c. 104. § 1 1.
il
OF COSTS. 875
" any other real contracts, nor to any other debt
'* that shall arise by reason of any cause concem-
*' ing a testament or matrimony, or any thing
*' concerning or properly belonging to the eccle-
*' siastical court, although the same be under for-
" ty shillings." And there is a similar exception
in the court of conscience acts for fVeswiinster ■*, and
the Tower hamlets'' \ which exception has been con-
strued to apply in London, to an action for use and
occupation ^ : and the court of conscience act there
does not extend to cases, where the plaintiff recovers
less than forty shillings, in a special action on the
case, for the breach of an agreement *. Also it is a
constant and invariable rule, that none of the court of
conscience acts extend to cases, Avhere the sum re-
covered is reduced under forty shillings, by means
of a set-off '', or tender "'. Where a cause is referred
to arbitration, and the costs are directed to abide the
event of the suit, the plaintiff, we have seen, is not
entitled to them, if it appear by the award that his
original demand was under forty shillings, and he
might have recovered it in a court of conscience '^
The
1 22 Geo. II. c. 47. § 16. Pul. 223. But it is otherwise,
r Doug. 245. where the plaintiff's demand is
s Id. 244. but it is otherwise reduced under forty shillings,
in Middlesex. 2 Bos. & Pul. 29. by payments in part. Barnes,
t 5 T. R. 529. 353. 4 Bur. 2133.
1 2 Str. 1191. 1 Wils. 19. ^ Doug. 448, 9.
S. C. 2 Wils. 68. 3 Wils. 48. w Ante, 762, 3.
Say. Costs, 65. S. C. 1 Bos. &
876 OF COSTS.
The court in one instance permitted a suggestion to
be entered on the roll, in an action brought by an ad-
mmistrator "^ : But in an action brought against an ex-
ecutor ^ they refused it^; saying, it could not be
meant to give the court of conscience a jurisdiction
over executors; and that if there was no express ex-
ception, there was one implied from the nature and
reason of the thing. An attorney is nqt subject
to the jurisdiction of the county court of Middlesex ^\
but in London^ Westminster^ and the Tower hamlets^
he is expressly subjected thereto ''. And where a
person is sued in a superior court, for a debt under
forty shillings, he may move the court to stay the
proceedings ^
The mode of taking advantage of these statutes is
hy plea or suggestion. Where there is a prohibitory
clause in the act, declaring that " no action for any
" debt under fort}^ shillings, and recoverable in the
*' court of requests, shall be brought against any
" person within the jurisdiction thereof, in any other
** court whatsoever," as in Westminster y the proper
mode of taking advantage of the act is by pleading
it, or giving it in evidence under the general issue "^ :
And if that mode be not adopted, the court will not,
after verdict, enter a suggestion on the record, that
the defendant lived within the jurisdiction, or stay
the
X Doug. 246. S3 e 2 Bos. 8c Pul. 29.
y Id. 263. Stat. 14 Geo. II. ^ Ante., 265.
.:. 10. 5 T. R. 535. Id. 529. l' Ante., 465.
I 2 Wils. 42. Doug. 380. = 2 H. Blac. 352.
Bur. 1583. «em6. contra; and
OF COSTS. 877
the proceedings ^. The Tower-hamlets act has the
same prohibitory clause ; and though it gives no
form of plea, yet it may be pleaded, or the facts
which bring a case within it may be given in evi-
dence under the general issue, to nonsuit ihe plain-
tiffs, or obtain a verdict against him ^ In the Lo?i-
don act, as well as in the acts for Sout/iivark and
Middlesex, there is no such prohibitory clause ; and
therefore the proper mode of proceeding upon these
acts is, for the defendant to apply to the court, by af-
fidavit, for leave to enter a suggestion on the roll, of
^he facts necessary to entitle him to the benefit of the
act ^: which suggestion may be traversed, or demur-
red to ''. The application for leave to enter a sugges-
tion, should be made before final judgment signed ':
And where the plaintiff demurred to the suggestion,
which was adjudged against him, the costs of the ap-
plication were allowed, as well as of the trial and for-
mer proceedings \ though not strictly speaking costs
of the defence. But where the inquest is taken by
default, there can it seems be no suggestion on the
roll ^; for the defendant is said to be out of court,
as
'1 3 T. R. 452. 1 East, 354. Wils. 68. Doug. 244. and see
(a). S. C. cited. Append. Chap. XL. § 1.
e 2 H. Blac. 352. h 2 H. Blac. 354.
f 1 East, 352. i Id. ibid.
t 1 Str. 47. 50. 2 Str. 1 120. J 2 Str. 1 120.
1191. Barnes, 353. Say. Rep. ^ i Str. 46. but sec 2 H.
273. Say. Costs, 64. S. C. 2 BLic 351.
878 OF COSTS.
as to all purposes, but that of having judgment
against him.
By the 21 Jac. I. c. 16. it is enacted, that " in all
*' actions upon the case for slanderous words, to be
*' sued or prosecuted in any of the courts of record
*' at Westminster^ or in any court whatsoever that
*' hath power to hold plea of the same, if the jury
** upon the trial of the issue in such action, or the jury
*' that shall inquire of the damages, do find or assess
" the damages under forty shillings, then the plain-
*' tiff or plaintiffs in such action shall have and reco-
" ver only so much costs as the damages so given
" or assessed amount unto, without any further in-
*' crease of the same; any law, statute or usage to
" the contrary notwithstanding." The operation of
this statute is confined to actions for slanderous words
spoken of the person^ and does not extend to actions
for slander of title ', &c. wherein the special damage
is the gist of the action: neither, for the same reason,
does it extend to an action for special damage, in
consequence of words not in themselves actionable '" ;
though, where the words are actionable in them-
selves, a special damage will not take the case out
of the statute ". This statute applies to a writ of
inquiry-,
» Cro. Car. 141. 163. 1 Str. " 2 Ld. Raym. 1588. 2 Str.
645. 936. S.C.Willes,438. Barnes,
'n2Ld. Rayni.831. 1 Salk. 132. S. C. Id. 142. 3 Bur.
206. 7 Mod. 129. S.C.Willes, 1688. 2 Blac. Rep. 1062. Say.
438. Barnes, 132. S. C. Id. Costs, 25. S. C. Cas. Pr, C.
135. 2 H. Blac. 531. B. 137. contra.
I
OF COSTS. 879
inquiry^ as well as a trial, where the damages are un-
der forty shillings °; and ^justification found for the
plaintiff will not, in that event, entitle him to full
costs p. In actions upon judgments, it is enacted by
the statute 43 Geo. III. c. 46. § 4. that " the plain-
" tiffs shall not recover or be entitled to any costs of
" suit, unless the court in which such actions shall be
" brought, or some judge of the same court, shall
" otherwise order."
But the principal statute, made for restraining the
plaintiff's right to costs, is the 22 & 23 Car. II. c. 9.
(extended to Wales, and the counties palatine, by the
11 & 12 ^. III. c. 9.); by which it is enacted, that
" in all actions of trespass, assault and battery, and
*' other personal actions, wherein the judge, at the
" trial of the cause, shall not find and certify under
" his hand, upon the back of the record, that an as-
" sault and battery was sufficiently proved by the
" plaintiff against the defendant, or that the freehold
" or title of the land mentioned in the plaintiff's de-
*' claration was chiefly in question; the plaintiff, in
" case the jury shall find the damages to be under
" the value of forty shillings, shall not recover or ob-
*' tain more costs of suit, than the damages so found
" shall amount unto." It seems to have been the
intention of this statute, that the plaintiff should
have no more costs than damages, in any personal
action whatsoever, if the damages were under forty
shillings, except in cases of batter}-, or freehold; and
not even in these, without a certificate : And this
construction was adopted, in some of the first cases
that
« 2 Str. 934. C. P. 22. 2 Wils. 258
p Banies, 128. Cas. Pr.
880
OF COSTS.
that arose upon tlie statute ''. But a difterent con-
struction soon prevailed ; and it is now settled, that
the statute is confined to actions of assault and bat-
tery; and actions for local trespasses, wherein it is
possible for the judge to certify, that the freehold or
title of the land was chiefly in question ^. Therefore
it does not extend to actions of assumpsit^ debt, co-
venant, trover % false imprisonment, or the like; or
to actions for a mere assault ^ ; or for criminal con-
versation ", or battery of the plaintiff's servant ^^ per
quod consortimn "vel servitium ajnisit.
In actions for local trespasses, the statute applies,
wherever an injury is done to tht freehold "", or to
any thing grooving "" upon, or affixed ■ to, the free-
hold : and in a modern case % it was carried still
further.
q 2 Keb. 849. 3 Keb. 121.
247.
■• T. Raym. 487. T. Jon.
232. 2 Show. 258. S. C. 3 Mod.
39. 1 Salk. 208. 1 Str. 577.
Gilb. Eq. Rep. 195. Barnes,
134. 3 Wils. 322. S. C. 1 H.
Blac. 294. 2 East, 162. Per
Laivrence^ J.
s 3 Keb. 31. 1 Salk. 208.
t 3 T. R. 391. but see 6 T.
R. 562.
1 3 Wils. 319.
v3 Keb. 184. 1 Salk. 208. 1
Str. 192.
w 2 Vent. 48. Com. Rep.
19. I Salk. 208. 1 Str. 577.
633. 645. Gilb. Eq. Rep. 195.
2 Str. 726. 2 Ld. Raym. 1444..
S. C. 6 T. R. 281.
•'' HiU V. Reevesj Bui. M.
Pri. 330. Barnes, 144.
y Birch V. Daffey^ Bui. M.
Pri. 330. 1 Str. 633 . Cas. Pr.
C. B. 86. Barnes, 121. 6T.R.
281.
2 Doug. 779. and see 1 Str.
633. 645. Gilb. Eq. Rep. 197,
8.S.C.3Bur. 1282. Say. Costs,
50. S. C. accord, but see 2
Vent. 215. Skin. 66. Com.
Rep. 19. 1 Salk. 208. 1 Str.
192. semb. contra.
OF COSTS. 881
further. That was an action of trespass qiiare clau-
sum f regit: the first count stated, that the defen-
dants broke and entered the close of the plaintiffs,
and the grass of the plaintiffs there then growing,
with their feet in walking, trod down, spoiled, and
consumed; and dug up and got divers large quan-
tities of turf, peat, sods, heath, stones, soil and
earth of the plaintiffs, in and upon the place in
which, is'c. and took and carried away the same,
and converted and disposed of the same to their own
use: There was another count, upon a similar
trespass, in another close. The defendants pleaded
the general issue to the whole declaration, and two
special pleas to the second count: And on the trial,
a verdict was found for the plaintiffs on the gene-
ral issue, with one shilling damages; and for the
defendants on the special pleas, and the judge had
not certified. Per Lord Mansjield: " The question
' on this record is, whether the plaintiffs are en-
' titled to any more costs than damages, under
' the statute 22 & 23 Car. II. c. 9. ? There is a
' puzzle and perplexity in the cases on this part
' of the statute, and a jumble in the reports; and
* as the question is a general one, we thought it
' proper to consult all the judges; and they are
' all of opinion, that this case is within the sta-
* tute, and that the plaintiffs ought to have no
' more costs than damages. You will obser\'e,
' that what has been called an asportavit in this
Vol. II. 2 F " decla-
882 OF COSTS.
" declaration, is a mode or qualification of the
*' injury done to the land: The trespass is laid to
" have been committed on the land, by digging,
" tfr. and the asporta'uit as part of the same act;
*' and on the trial of the issue, the freehold cer-
" tainly might have come in question. This is
*' clearly distinguishable from an asportaiiit of per-
" sonal property, where the freehold cannot come
*' in question, and which therefore is not within
*' the act: Thus, after trees are cut down, and
" thereby severed from the freehold, if a trespasser
" comes and carries them away, that case is not
*' within the statute, because the freehold cannot
" come in question; here it might." In an ac-
tion for mesne-profits, if the plaintiff recover less
than forty shillings damages, and the judge do
not certify that the title came in question, the
plaintiff is entitled to no more costs than damages ^.
Where an injury is done to a personal chattel,
it is not within the statute ^ ; nor where an injury
to a personal chattel is laid in the same declara-
tion with an assault and battery, or local trespass " :
and consequently, in these cases, though the dam-
ages be under forty shillings, the plaintiff is en-
titled
^ 1 Esp. Cas. .Vz. Pn. 359. 1 Str. 192.' 551. Gilb. Eq.
6 T. R. 593. Rep. 197. S. C. Barnes,
b 3 Keb. 389. 469. T. 119, 20. 134. 3 Wils. 322.
Jon. 232. 1 Salk. 208. 1 S. C. 2 Str. 1130. Saj.
Str. 534. Gilb. Eq. Rep. Costs, 39. but see 1 Esp. Cas.
197. S.C. A7. Pr/. 255.
c 3 Mod. 39. 1 Salk. 208.
1
OF COSTS. 883
titled to full casts, without a certificate. But then
it must be a substantive and independent injury;
for where it is laid or proved merely in aggravation
of damages, as a mode or qualification of the as-
sault and battery, or local trespass'^, or there is a
verdict for the defendant upon that part of tlie
declaration which charges him with an injury to a
personal chattel*, it is within the statute. So
where a lacera'uit^ or tearing of the plaintiff's clothes,
is laid in the declaration, or found by the juiy, to
be merely consequential to \ or committed at the
same time ^ as an assault and battery, the plaintiff,
recovering less than forty shillings damages, is not
entitled to full costs, without a certificate.
The certificate required by this statute need not,
it seems, be granted at the trial of the cause ^. And
where the defendant lets judgment go by default ',
or justifies the assault and battery \ or pleads in
such a manner as to bring the freehold or title of
the land in question, on the face of the record, or
a 'oiew is granted *", a certificate is holden to be un-
necessary. But where, in an action for an assault
and battery, the defendant justifies tlie assault only ',
or
d 1 Str. 624. Ante, 881, 2. ^ W Mod. 198. Post. 887.
«2 Vent. 180. 195. Cas. "> Bui. WI. Pr/. 329.
Pr. C. B. 118. J 6 T. R. 562.
»Say. Rep. 91. IT. R. 655. k i Ld. Raym. 76. ?.
B 1 H. Blac. 291, 5 T. R. Salk. 665. S. C.
482. 13T. R. 391.
884 OF COSTS.
or an assault only is certified by the judge '", the
plaintiff, recovering less than forty shillings, is not
entitled to more costs than damages; though, in
the latter case, to entitle him to full costs, the
judge may certify, on the 8 &. 9 PV. III. c. 11. that
the assault was wilful and malicious ". The award
of an arbitrator is not tantamount to a judge's cer-
tificate, under the 22 & 23 Car. II. c. 9 °.
Where the plaintiif recovered less than forty
shillings damages, and the plea or issue, though
special, was collateral to the question of freehold
or title to the land, as where the defendant justi-
fied an entry as bailiff under process, and issue was
joined upon the door's being shut p, or where, upon
a plea of a distress for rent, there was an issue on
the defendant's being bailiff *^, a certificate was for-
merly holden to be necessary, to entitle the plain-
tiff to full costs: for it was considered, that a
plaintiff who recovered less than forty shillings da-
mages, in trespass giiare clausumf regit ^ was not en-
titied to full costs, unless the freehold or title ap-
peared to have come in question, either by the
judge's certificate, or by the pleadings. But it has
since been determined, in several cases \ that if the
defendant in trespass quare clausum /regit, plead a
licence, or other justification, which does not make
title
=" 2 Lev. 102. q Say. Rep. 250.
" 3 Wils. 326. r 2 H. Blac. 2. 341. 7 T.
3 T. R. 138. R. 659.
a 2 Barnard. K. B. 277
OF COSTS. 885
title to the land, and it is found against him, the
plaintiff is entitled to full costs, though he do not
recover forty shillings damages: The principle on
which these determinations have proceeded is, that
where tlie case is such, that the judge who tries
the cause cannot in any view of it grant a certifi-
cate, it is considered to be a case out of the statute *.
So on a plea of not guilty to a new assignment of
extra viam^ the plaintiff obtaining a verdict for less
than forty shillings damages, is entitled to full costs,
without a judge's certificate '; unless the way plead-
ed be set forth by metes and bounds ". And where
the plaintiff is entitled to costs upon the new assign-
ment, he is entitled to the costs of all the previous
pleadings ' .
None of the statutes made for restraining the
plaintiff's right to costs, except the 21 Jac. I. c.
16. '', extend to actions brought in an inferior
court,
' 7 T. R. 660. holder), that courts-baron, and
^ 2 Lev. 234. 2 Ld. Raym. other inferior courts, wherein
1444. 2 Str. 726. S. C. Id. the jury are precluded from
1168. Say. Rep. 251. Cock- legally assessing damages to
erilly. Allansoriy T. 22 G.III. the amount of forty shillings,
K. B. Hul. Costs, 86. S. C. arc not within the meaning or
i East, 350. but see Barnes, intent of this statute, but that
124. 129. S. C. Id. 149. such courts have still a power
Bui. AT. Pri. 330. contra. of allowing full costs, in actions
" Cockerill v. Allanson, T. of slander prosecuted therein,
22 G. III. K. B. Hul. Costs, however small the quantum of
86. S. C. 1 East, 351. damages found or assessed
V 1 T. R. 636. may be. 1 Ld. Raym. 181.
^'^^ Hul. r>9. And it hath been
886 OF COSTS.
court, and removed by the defendant into a supe-
rior one ^ : And it has been holden, that the latter
statute \ as well as the 22 & 23 Car. II. c. 9. %
only restrains the court from awarding more costs
than damages; but the jury, not being restrained
thereby, may give what costs they please.
The restraint put upon the plaintiff's general
right to costs, by the 22 & 23 Car. II. c. 9. has
been since partly taken off, by subsequent statutes.
Thus, by the statute 4 ^ 5 IV. & ilf. c. 23. § 10.
after reciting, that great mischiefs ensue by infe-
rior tradsemen, apprentices, and other dissolute
persons, neglecting their trades and employments,
who follow hunting, fishing, and other game, to
the ruin of themselves and damage of their neigh-
bours, it is enacted, that '' if any such person shall
*' presume to hunt, hawk, fish, or fowl, (unless in
" company with the master of such apprentice, duly
" qualified by law,) such person shall be subject to
" the penalties of this act, and shall or may be
" sued or prosecuted for his wilful trespass, in such
" his coming on any person's land; and if found
*' guilty thereof, the plaintiff shall not only reco-
*' ver his damages thereby sustained, but his full
" costs of suit; any former law to the contrary
" notwithstanding." It has been holden, that a
clot /iter
X 2 Lev. 124. 4 Mod. 378, y i Salk. 207.
9. 1 Ld. Raym. 39,5. Cos. Pr. ' Cas. Pr. C B. 45.
t. B. 45 («).
OF COSTS. 887
clothier is an inferior tradesman, within the mean-
ing of this statute ^ ; and it is said, that the words
*' inferior tradesmen'''' extend to every tradesman
who is not qualified to kill game^: but this was
doubted in a subsequent case •", wherein the judges
were divided in opinion upon the question, whe-
ther a surgeon and apothecary should be considered
as an inferior tradesman.
So by the 8 & 9 /T. III. c. 11. § 4. for the pre-
venting of wilful and malicious trespasses, it is
enacted, that " in all actions of trespass, to be
*' commenced or prosecuted in any of his majesty's
*' courts of record at Westminster^ wherein at the
" trial of the cause it shall appear, and be certified
*' by the judge under his hand, upon the back of
" the record, that the trespass, upon which any
" defendant shall be found guilty, was luilfid and
*' malicious, the plaintiff shall recover not only his
" damages, but his full costs of suit; any former
" law to the contrary notwithstanding''." The cer-
tificate required by this statute, need not be grant-
ed at the trial of the cause ''; and if it appear on the
trial, that the trespass, hower trifling, was com-
mitted after notice, and the jury give less than
forty
a Barnes, 125. and see 1 Ld. statute, see 3 Wils. 325.
Raym. 149. Com. Rep. 26. ^ Sivinnerton v. Jarvis, E. 22
S. C. Geo. III. C. B. 1 T. R. 636.
•'2 Wils. 70. Say. Costs, 6 T. R. 1 1. 7 T. R. 449. K. B.
54. S. C. but see 2 Wils. 21. Doug. 108,
'^ For the exposition of this n. contra.
888 Of COSTS.
forty shillings damages, it has been usual for t'nc
judge to consider himself bound to certify, that the
trespass was wilful and malicious, in order to entitle
the plaintiif to his full costs ''.*
Where the declaration consists of several counts,
the plaintiff in this court is only entitled to the
costs of such as are found for him ^; and neither
party is allowed the costs of those which are found
for the defendant ^. Where the plaintiff's decla-
ration consisted of two counts, to one of which the
defendant pleaded the general issue, which was
found for the plaintiff, and to the other a justifi-
cation, to which the plaintiff demurred, and
judgment was thereupon given for the defendant;
the court agreed, that the defendant could have
no costs upon the demurrer ''. But if there be two
distinct causes of action, in two separate counts,
and as to one the defendant suffers judgment to go
by default, and as to the other takes issue, and ob-
tains a verdict, he is entitled to judgment for his
costs on the latter count, notwithstanding the
plaintiff
• 6 T. R. 11. and see 7 T. the case put by Z,e J?/anc, Just.
R. 449. 8 T. R. 467.
f But it is otherwise in the s Say. Costs, 212. Doug.
Common Pleas; for there, if 677. 6 T. R. 602, 3. 2 Bos. &
the plaintiff succeed upon any Pul. 50. (6). but see 1 Wils.
one of the counts, he is enti- 331.
tied to the costs of his whole ^ Say. Costs, 211.2 Bur,
declaration, though the de- 1232. S. C. but differently re-
fendant succeed upon the ported. Tamen quare^ and see
others. Bui. M. Pri. 335. 2 the stat. 8 & 9 W. III. c. 11.
Blac.Rep. 800. 1199. 6 T. R. § 2.
602. 2 Bos. & Pul. 49. but see
* From the Addenda to the London edition. " The granting of a certi-
ficate however, upon this statute, seems to be discretionary in the
judge before whom the trial is had, who may certify or not, accord-
ing as it appears to him, under the circumstances proved, that the
trespass was wilful and malicious: And the judge having declined
to certify, in a case where notice was given by the plaintiff's wife
to the defendant not to enter the locus in quo in his cart, there being
110 road there, notwithstanding which the defendant persisted in going
on, in the exercise of a disputed right of common in .an adjoining in-
OF COSTS. 889
plaintiff is intitled to judgment and costs on the first
count '. So where the declaration in trespass con-
sisted of one count only, to which there were seve-
ral pleas of justification J on which issues were taken,
and a new assignment on which judgment passed by
default, and a venire was awarded, as well to assess
the damages on the judgment by default, as to try
the issues ; all the 'issues being found for the defen-
dant, it was holden that he was intitled to the costs
of them J.
An inclosure-act directed, that the parties who
were dissatisfied with the determination of the com-
missioners, might bring actions to try their rights,
adding "that if the verdict should be in favour of
*' the commissioners' determination, the costs should
" be borne by the plaintiff, and if against such deter-
" mination, then by the proprietors at large:" A
proprietor brought an action, claiming nine distinct
rights, and recovered for three only ; and the court
held, that he should only have his costs on those is-
sues which were found for him, and that the defen-
dant should have his costs of the other issues'".
It has already been observed \ that no costs
were recoverable by a defendant at common law:
And
is T. R. 654, and see 6 East, 350.
T.R. 602, 3. k 6 T-. R. 599.
i 8 T. R. 466. and see 1 > Ante, 864.
Vol. TT, 2G
890 OF COSTS^
And the reason seems to be, that if the plaintiff
failed in his suit, he was amerced to the king pro
falso clamore^ which was thought to be a sufficient
punishment, without subjecting him to the pay-
ment of costs. The first instance of costs being gi-
ven to a defendant, was in a writ of right of ward,
by the statute of Marleberge, (52 Heji. III.) c. 6^
Afterwards, costs Mere given to the defendant in
eiror, by the 3 Hen. VII. c. 10. and 1? I^en. VII.
c. 20. and in replemn, by the 7 Hen. VIII. c. 4. and
21 Hen. VIII. c. 19, &.c. But in one of these cases,
die defendant is to be considered as an actor; and in
the other of them, the provision is virtually for the
benefit of the plaintiff in the original action "\
In raple'Din, or second deliverance, the defendant,
making avowry, cognizance, or justification, for
rents, customs, or services, or for damage feasant,
is intitled to costs, by the 7 Hen. VIII. c. 4, § 3.
and 21 Hen. VIII. c. 19. \ 3. if the avowry, cog-
nizance, or justification be found for him, or the
plaintiff be nonsuit, or otherwise barred; which
statutes extend to avowries, &c. made by an
executor", or for an estray ", and as it should seem,
for an amercefuent by a court-leef; but not to
pleas of prisel en auter lieu., upon which the ^vrit is
abated '*, or to pleas of property in the thing dis-
trained.
r
m Say. Costs, 70. Cro. Eliz. 300. semb. contra.
"2 Rol. Rep. 457. i Com. Rep. 122.2 Ld.
o Cro. Eliz. 330. Ruym. 788. S. C
p Cro. Jac. 520. but see
OF COSTS. 891
trained'. By the 17 Car. II. c. r. § 2. the defen-
dant obtaining judgment thereon, for the arrearages
of rent, or value of the goods distrained, is also in-
titled to his y«// costs of suit And by the 11 Geo.
JI. c. 19. § 22. if the defendant avow, or make cog-
nisance in replemn^ upon a distress for rent, relief,
heriot, or other service, and the plaintiff be nonsuit,
discontinue his action, or have judgment against him,
the defendant shall recover double costs of suit. But
this latter statute does not extend to a rent-charge %
or seisure for a heriot custom ^: And where by a canal
act, the company were authorised to take certain
lands for the purposes of the act, on making certain
payments, either by annual rents or sums in gross;
and the persons from \\hom the land was to be
taken, were empowered to distrain the goods of the
company, ev^en off the premises, incase of non-pay-
ment of such sums; an avowant, stating a distress
under this act of parliament, was holden not to be
intitled, on obtaining a verdict, to double costs un-
der the statute of 11 Geo. II. c. 19. § 22 ".
By the statute 23 Hen. VIII. c. 15. § 1. it was
enacted, that *' in trespass upon the statute 5 Rich.
*' II. debt, covenant, detinue, account, trespass
*' on the case, or upon any statute for an offence
*' or wrong personal, immediatelj^ supposed to be
" done to the plaintiff, if the plaintiff, after the
*' appear-
>• Hardr. 153. Say. Costs, 107.
"Willes, 429. 1 Bos. 8c " 7 T. R. 500. and see I
Pul. 214. Bos. & Pul.213. S. P
f Barnes, 148. 2 Wils, 28,
892 OF COSTS.
" appearance of the defendant, be nonsuited, or a
" verdict pass against him, the defendant shall have
*' judgment to recover his costs against the plaintiff,
" to be assessed and taxed by the discretion of the
''judge or judges of the court where such action
" shall be commenced or sued; and shall have such
" piocess and execution for the recovery of the same,
" against the plaintiff, as the plaintiff should or might
" have had against the defendant, in case judgment
^' had been given for the plaintiff."
Execiims and administrators ai'e not particularly
excepted out of the statute 23 Hen. VIII. c. 15;
yet as that statute only relates to contracts made
with, or wrongs done to the plaintiff'', it has been
uniformly holden ", that they are not liable to costs,
upon a nonsuit or verdict, where they necessarily
sue in their representative character, and cannot
bring the action in their own right; as upon a con-
tract entered into with the testator or intestate '',
or
V 2 Str. 1 107. executor or administrator, ne-
^■^ Cro. Eliz. 503. Cro. Jac. cessarily suing as such, upon
229. 2 Bulst. 261. 1 Salk. a contract entered into with
207. 314. 3 Bur. 1586. Say. the testator or intestate, is
Costs, 97. not made liable to costs by
^ T. Jon. 47. 1 Vent. 92. the statute, and no costs can
2 Ld. Raym. 1414. 1 Str. be awarded against him on
682. S. C. Cas. Pr. C. B. record; yet in a late case,
157. Pr. Reg. 118. S. C. where the plaintiff sued as ad-
Barnes, 141. 1 H. Blac. 528. ministrator, upon a contract
1 Bo . £c Pul. 445. 2 Bos. Sc made with his intestate, and
Pul. 253. 2 Eastj 395. Cookand assigned by the plaintiff to J.
others^ Executors, v. Lucas, E. S. for whose benefit the ac-
42 G. III. But though an tion was brought, and it ap-
peared
III
OF COSTS.
8%
or lor a wrong done in his life-time ^. But where
the. cause of action arises after the death of the tes-
tator or intestate, and the plaintiff may sue thereon
in his own right, he shall not be excused from the
payment of costs, though he bring the action as
executor or administrator; as upon a contract % ex-
press or implied, or in trover ^, for a conversion af-
ter the death of the testator or intestate : And exe-
cutors or administrators are not necessarily ex-
empted from costs, on interlocutory motions ''. An
executor or administrator is liable to costs, upon a
judgment of non-pros "■ : And where he has know-
ingly brought a wrong action, or otherwise been
guilty of a ivilfid default, he shall pay costs upon a
discontinuance ^, or for not proceeding to trial ac-
cording to notice " ; but otherwise he is not liable
to
peared in evidence that the
contract had been annulled,
with the privity both of the
plaintiff and J. S. and that the
former was indemnified by
the latter; a verdict being
found for the defendant, the
court of common pleas made
a rule upon the plaintiff, to
pay the defendant his costs,
as for a contempt, in fraudu-
lently abusing the process of
the court. 3 Bos. 8c Pul. 115.
y Barnes, 129.
»6 Mod. 91. 181. 1 Salk.
207. S. C. 1 Ld. Raym.
436. 1 Str. 682. Barnes, 119.
2 Str. 1106. 4 T. R. 277.
5 T. R. 234. 2 East, 396.
•^ Com. Rep. 162. Cas. Pr.
C. B. 61. Barnes, 132. Cas.
tcwfi. Hardw. 204. 7 T. R.
358. Monkland v. De Grainge,
M. 41 G. III. but see 3 Lev.
60. semb. contra.
b Ptr Cur. M. 42 G. III.
'^ Cas. Pr. C. B. 14. 157,8.
3 Bur. 1585. 6 T. R. 654.
'I Cas. Pr. C. B. 79. 3 Bur.
1451. 1 Blac. Rep. 451. S.
C. Arde, 628.
e Cas. Pr. C.B. 158. 3 Bur
1585. 1 H. Blac. 217,
894 oy COSTS.
to costs, in either of these cases ^ Nor, where he
merely sues en aiiter droit, is he liable to costs, upon
a judgment as in case of a nonsuit ^.
Executors and administrators are liable to costs,
when defendants, if they plead falsely'^'; and the
judgment in such case is, that the costs be levied, of
the goods of the testator or intestate, if the defen-
dant hath so much thereof in his hands to be ad-
ministered, and if not, de bonis propriis \ A bank-
rupt sued as executor, pleaded a false plea, and
it being found against him, the plaintiff' had judg-
ment for the costs de bonis propriis, after which he
had obtained his certificate; and the court held,
that this judgment for the costs was not discharged
by the certificate ''. But where an executor or ad-
ministrator pleads plene administra'vit, and the plain-
tiff, admitting the truth of the plea, takes judg-
ment of assets in futiiro, the defendant is not lia-
ble to costs '. So where an executor or adminis-
trator pleads several pleas to the whole declaration,
as
f2Str. 871. Barnes, 133. termined in the Common
4 Bur. 1927. Say. Costs, 96, Pleas: and it seems that th6
7. S. C. defendant is not liable to costs,
8 4 Bur. 1928. Per Cur. where he pleads /i/e-wc arfTwznz-s-
T. 37 Geo. III. Barnes, 130. travH firxter, and the plain-
2 H. Blac. 277. 2 East, 396. tiff, admitting the truth of the
>i Plowd. 183, Hut. 69.79. plea, takes judgment of the
■' 4 T. R. 648. 7 T. Pv. 359. assets admitted in part, and
k 3 Bur. 1368. 1 Blac. Rep. for the residue, of assets my«-
400. S. C. ^w/p, 182. iuro. See Rast. Ent. 323. 8
> Imp; K. B. 428. where Co. 134. 2 Saund. 226. Sid.
it is said to have been so de- 448. S. C.
OF COSTS. 895
.i}i noil assumpsit and pkne administra'uk, and one of
them is found for him, he is intitled to the postea
and costs, though the other plea be found against
him. But if the plaintiff take judgment of assets
infutiiro, upon the plea oi plene adinmistramt, and
go to trial upon the plea of non assumpsit ^ he will
be intitled to costs, if he obtain a verdict; and there-
fore in such case, unless the defendant has a good
ground of defence upon jion assumpsit^ it is usual for
him to move to withdraw his plea, which the court
will permit him to do, upon payment of costs ™.
There being still many cases, in which the de-
fendant was not aided by the provisions of the be-
fore-mentioned statutes ", it was enacted by the sta-
tute 4 Jac. I. c. 3. that " if any person shall com-
" mence in any court, any action of trespass,
" ejectione fir may or any other action whatsoever,
*' wherein the plaintiff or demandant might have
" costs, in case judgment should be given for him,
" and the plaintiff or demandant shall be non-
*' suited therein, after the appearance of the de-
*' fendant, or a verdict shall pass against him by^
" lawful trial, that then the defendant, in every
" such action, shall have judgment to recover his
" costs against the plaintiff or demandant, to be
" assessed and levied in like manner as upon the
" 23 Hen. VIII. c. 15." By the above statute,
the defendant is intitled to costs, on a nonsuit or
verdict.
n» 2 Blac. Rep. 1275. Bui. AY. Prl. .'3.^i.
" 2 Leon. 9. 3 Leon. 92.
896. OF COSTS.
verdict, in all cases where the plaintiff would have
been entitled to them, if he had obtained judgment;
as in assumpsit ", &:c. And though the declaration
be insufficient, so that the plaintiff could not have
had costs thereon, the defendant is nevertheless in-
titled to costs, for the unjust vexation p. But this
statute, being framed upon the model of the 23 Hen.
Vill. c. 15. does not extend, any more than that,
to actions brought by executors or administrators '^.
The statutes which have been hitherto mentioned,
as giving costs to defendants, only relate to cases
where the plaintiff is nonsuited, or has a verdict
against him. But there are other statutes, by which
the defendant is intitled to costs upon a nolle prose-
qui^ ?ion-pros^ discontinuance, or demurrer; or where
the plaintiff does not recover the amount of the sum
for which the defendant was arrested, provided it ap-
pear that he had not any reasonable or probable cause
for arresting him to that amount, and the court shall
thereupon make a rule or order for the allowance of
such costs.
By the 8 Eliz. c. 2. " upon process issuing out
" of the court of King's Bench, if the plaintiff do
*' not declare in three days after bail put in, or
" if after declaration, he do not prosecute his suit
" with effect, but willingly suffer the same to be
*■' delayed or discontinued, or he be nonsuited
" therein, the judges, by their discretions, shall
" award to the defendant his costs, damages and
" charges in that behalf sustained." If the plaintiff
enter a 7iolle prosequi^ the defendant is intitled to
costs upon this statute \ But it does not extend,
an}'
' Ante, 865. but see Cro. Jac. 158, 9. semh
I'Moor, 625. 1 Bulst. 189. contra.
.1 Bulst. 248. Hob. 219. q Gilb. C. P. 271.
Hut. 16. S. C. Cro. Car. 17. v •• .t t. R. 511.
OF COSTS. 897
any more than the former, to actions brought by exe-
cutors and administrators ' in their representative cha-
racter.
By the 13 Car. II. stat. 2. c. 2. ^ 3. it is enacted,
that " upon an appearance entered for the defen-
*' dant by attorney, of the term wherein the pro-
*' cess is returnable, unless the plaintiff shall put
" into the court from whence the process issued,
" his bill or declaration against the defendant, in
" some personal action or ejectment of farm, be-
*' fore the end of the term next following after
" appearance, a nonsuit for want of a declaration
*' may be entered against him; and the defendant
" shall have judgment to recover costs against the
" plaintiff, to be taxed and levied in like manner as
" upon the 23 Hen, VIII. c. 15."
And still further to discourage the bringing of
frivolous and A'cxatious actions, it is enacted, by
the statute 8 & 9 /T. III. c. 11. § 2. tha! " if any
*' person shall commence or prosecute any action,
*' in any court of record, wherein upon demurrer,
" eitlier by plaintiff or defendant, demandant or
" tenant, judgment shall be given by the court
" against the plaintiff or demandant, the defendant
" or tenant shall have judgment to recover his costs,
*• and have execution for the same by capias ad sa-
" tisfaciendum, fieri facias^ or elegit.'^'' This statute
does
s Cro. Eliz. 69. Cro. Jac. 361.
Vol. IT. 2 H
898
Oi- COSTS.
does not extend to demurrers to pleas in abatement "^ ;
nor any action, wherein the defendant would not have
been entitled to costs, upon a nonsuit or verdict ''. *
The plaintiff, we may remember, is not entitled to
costs in a popular action, for the whole or part of the
penalty given by statute to a common informer,
unless they are expressly given him by the statute ^'.
Nor was the defendant entitled to costs in such an
action, until the statute 18 Eliz. c. 5. ^ 3. (made
perpetual by the 27 E/iz. c. 10.) by which it is en-
acted, that " if any common informer shall willingly
*' delay his suit, or shall discontinue, or be nonsuit,
*' or shall have the matter pass against him therein
•' b}^ verdict or judgment in law, the said informer
•' shall pay to the defendant his costs, charges, and
"' damages, to be assigned by the court in which the
'' suit shall be attempted:" With a proviso, that
'' this act shall not extend to any officer, who in re-
'• spect of his office, has heretofore usually sued
" upon penal laws; nor to any officer, suing only
'' for matters concerning his office"''." This act of
parliament,
M. Pri. 324. and see the sta-
tute 24 Hen. VIII. c. 8. which
exempts plamtiffs, suing to
the use ot the king, in any
action whatsoever, from the
payment of costs, in case they
be nonsuited, or a verdict pass
against them. See also 7 T.
R. 367.
= 1 Ld. Raym. 337. 1 Salk.
194. 12 Mod. 195. Comb.
482. S. C. 2 Ld. Raym. 992.
1 Salk. 194. 6 Mod. 88. S. C.
"Cas. Pr. C. B. 25. 1 H.
Blac. 530. but see Cas. Pr. C.
B. 4. contra.
V Ante, 866.
■^' 2 Ld. Raym. 1333. Bui.
• From tr.c Addenda to the London Edition. " And for the more ef-
fectual prevention of frivolous and vexatious arrests and suits, it is
enacted by the statute 43 Geo. III. c. 46. $ 3. that " in all actions to be
'* brought in Eni^land or Ireland, wherein the defendant or defendants
" shall be arrested and held to special bail, and wherein the plaintiff
'' or plaintiffs shall not recover the amount of the sum for which the
" defendant or defendants in sucli actions shall have been so arrested
" and held to special bail, such defendant or defendants shall be entit-
"■ led to costs of suit, to be taxed according to the custom of the
" court
OF COSTS. 899
parliament, which seems to give costs upon arrest
of judgment ""j extends to actions brought upon a
subsequent statute ^, or one that is repealed ' ; and al-
so to actions qui tarn, for part of a penalty, as well as
where the whole is given to a common informer ^ :
But it does not extend to actions, brought by the
party grieved, upon a remedial statute ^.
Where there are several defendants, who succeed
in the action, the plaintiff may pay costs to which of
them he pleases ": And if they fail, each of them is
answerable for the whole costs. Thus, where an
ejectment was brought against several defendants,
who defended severally, and at the assizes one of
them confessed lease, entry and ouster, and had a
verdict against him, but the others did not confess;
the court upon application said, the officer must tax
the same costs against all the defendants ; and that if
the plaintiff, after he had satisfaction against one,
should take out execution against another, the latter
might apply to the court ^.
Where one of several defendants lets judgment
go by default, and the other pleads a plea which
goes to the whole declaration, and shews that the
plaintiff
^ Gilb. C. P. 271. but see Vin. Abr. 341, 2. S. C.
Hul. Costs, 203. b 1 And. 116. 2 Leon. 116.
y Willes, 392. 440. 1 Wils. 4 Leon. 55. Cro. Eliz. 177.
177. Hut. 22. 1 Salk. 30.
z Hut. 35, 6. 2 Keb. 106. c i Str. 516.2 Str. 1203.
^ Cowp. 366. Say. Costs, 75. '^ Bui. Mi. Pri. 335, 6.
S. C. and see 2 Str. 1103. 6
" court in which such action shall have been bioupfht; provided that
" it shall be made appe:u', to the satisfaction of the court in which
" such action is broup^'ht, upon motion to be made in court for that
" purpose, and upon hearin,^ the parlies by affidavit, tliat the plaintiff'
" or plaintiffs in such action had not any reasonable or probable cause
•' for causing the defendant or defendants to be arrested and held to
" special bail in such amount as aforesaid, and provided such court shall
" thereupon, by a rule or order of the same court, direct that such
" costs shall be allowed to ihe defendant o'* "defendants: And the
" plaintiff"
900 OF COSTS.
plaintiff had no cause of action, if this plea be found
for the defendant who pleaded it, he shall have costs ;
and being an absolute bar, the other defendant shall
have the benefit of it, and shall not pay costs to the
plaintiff ^ But where the plea does not go to the
whole, but is merely in discharge of the party plead-
ing it, there the other party shall not have the bene-
fit of it; but shall pay costs, though it be found
against the plaintiff'.
Before the statute ShOlf. III. c. 11. if one of
several defendants had been acquitted^ he was not
entitled to his costs; the courts construing the
former acts to relate only to the case of a total ac-
quittal, of all the defendants s. This being found
inconvenient, it was enacted by the same statute,
§ 1. that " where several persons shall be made
" defendants, to any action of trespass, assault,
"false imprisonment, or c'jectione firvia^ and any
" one or more of them shall be, upon the trial
" thereof, acquitted by verdict, every person so
" acquitted shall recover his costs of suit, in like
" manner as if the verdict had been given against
*' the plaintiff, and acquitted all the defendants;
'* unless the judge, before whom the cause is
" tried,
e Co. Lit. 125. Cro. Jac. Keg. 102.S. C.
134. 1 Lev. 63. 1 Sid. 76. 1 ^ Id. ibid. 1 Wils. 89. 3 T.
Keb. 284. S. C. 2 Ld. Raym. R. 656.
1372. 1 Str. 610. 8 Mod. 217. K 2 Str. 1005. and seel Salk.
S. C. Cas. Pr. C. B. 107. Pr. 194.
" plaintiff or plaintiffs sliall, upcm such rule or order beintj made as
■' aforesaid, be disabled from takinc" out any execution for Die sum
" recovered in any sucli action, unless the same shall exceed, and
" then in such sum only as the same shall exceed, the amoimt of the
" taxed costs of the defendant or defendants in sucli action; and in
" case the simi recovered in any such action shall be less than the
" amount of the costs of the defendant or defendants to he taxed as
" aforesaid, that then the defendant or defendants shall be entitled,
" after deducting tlie sum of money recovered bv the plaintiff or plain-
" tiffsi
OF COSTS. 901
" tried, shall immediately after the trial thereof, in
" open court, certify upon the record under his hand,
" that there was a reasonable cause for making such
*' person a defendant." This statute is confined to the
particular actions therein mentioned; and does not
extend to an action of trespass upon the case '', nor
consequently to an action of trover ': neither does it
extend to an action of rcplemn '', or to an action of
debt on bond against executors, one of whom was
acquitted on the plea of plerie admimstramt prater '.
When a feigned issue is ordered by a court of
/aiu, whether it be in a civil or criminal proceed-
ing, the costs always follow the verdict, and must
be paid to the party obtaining it "". But when a
feigned issue is ordered by a court of equity^ the
costs do not follow the verdict, as a matter of
course; but the finding of the jury is returned back
to the court which ordered the issue, and the costs
there arc in the discretion of the court "". Where
the
'' 2 Str. 1005. 69. 204. But in the case of
' Barnes, 139. Hoskins v. Ld. Berkeley, (4 T.
k 3 Bur. 1284. 1 Blac. Rep. R. 402.) tlie court strongly
355. Say. Costs, 215. S. C. intimated an opinion, that as
' Duke ofJVorfolk v. Anthony feigned issues were only grant-
and another, E. 42 G. III. ed with the leave of the court,
'" Still and Rogers, 1 Lil. P. it would be prudent in future,
R. 344. Per //o//r,Ch. J. Barnes, when they permitted such is-
130. 1 Wils. 261. 331. Say. sues to be tried, to compel the
Rep. 24. 1 Wils. 324. S. C. parties to consent, that the
and see Biu't. Prac. Excheq. costs should be in the discre-
248,9. Peake, Cas. M. Pri. tion of the court.
" tiffs in such nction, from the amount of liis or their costs so to be
" taxed as aforesaid, to t.ike out execution for such costs, in like nian-
" ner as a defendant or defendants may now by law bavc execution for
" costs in other cases."
-90f^ OF COSTS.
the issue is ordered by a court of law, on a rule for
an information ", or motion for an attachment ", the
costs of the original rule or motion do not in gene^-
ral follow the verdict, but only the costs of the feign-
ed issue; which costs are to be reckoned from the
time when the feigned issue Mas first ordered and
agreed to ''. Yet, m here it was ordered by the con-
sent-rule, that the costs should abide the event of the
issue, the court directed the "iXihole costs to be paid
under it ''.
Having thus shewn, in what cases the parties are
entided to costs, I shall proceed to consider, what
costs they are respectively entitled to, with the means
of taxing and recovering them, as between jf)<3;r{y and
party.
Where the plaintiff' recovers single damages, he
is only entitled to single costs, unless more be ex-
pressly given him by statute: But if double or tre-
ble damages are given by a statute, subsequent to
the statute of Gloucester, in a case wherein single
damages were before recoverable, the plaintiff is
entitled to double or treble costs, although the sta-
tute be silent respecting them "" ; as in an action
upon the 2 Hen. IV. c. 11, &c '. In some cases,
double
" Say. Rep. 229. 1 Bur. 603. 'i 2 Bur. 1021.
Say. Costs, 144. S. C ' «■ Say. Costs, 22S.
o Suy. Rep. 253. ' Jnic, 865
" 1 Bur. 604.
or COSTS. 903
double and treble costs are expressly given to the
plaintiff; as upon the game-laws, by the statute
2 Geo. III. c. 19. \ 5. And wherever a plaintiff is
entitled to double or treble costs, the costs given by
the court de incremento are to be doubled or trebled,
as well as diose given by the jury '. But double or
treble costs are not to be understood to mean, accord-
ing to their literal import, twice or thrice the amount
of single costs. Where a statute gives double costs,
they are calculated thus: 1. the common costs; and
then halftht common costs: If treble costs, 1. the
common costs; 2. half of these; and then half of the
latter ".
Double or treble costs are also in some cases ex-
pressly given to the defendant; as in actions against
justices of the peace, constables, &c. by the 7
Jac. 1. c. 5. '' (made perpetual by the 21 Jac, I.
c. 12. \ 2.); for distresses for rents and services,
by the 11 Geo. II. c. 19. \ 21, 2.; and against
officers of the excise or customs, by the 23 Geo. III.
c. 70. \ 34. and 24 Geo. III. sess. 2. c. 47. \ 'iS.
In these and similar cases, where it does not ap-
pear, on the face of the record, that the defen-
dant is entided to the benefit of the act, (as where
he
'2 Leon. 52.Cro. Eliz. 582. v- This statute does not ex-
3 Lev. 351. Garth. 297. 321. tend to actions for a merejio//-
1 Salk. 205. 1 Ld. Raym. 19, /caswncf, but only where sonie-
S. C. 2 Str. 1048. but see 1 thing is done by the officers.
T. R. 252. 2 Lev. 250. 3 East,,92.
" Table of Costs, in firincip.
904 OF COSTS.
he pleads the general issue,) and riiere is no parti-
cular mode appointed for recovery of the costs,
the proper mode, after a nonsuit or verdict for the
defendant, is to apply to the court, upon an affida-
vit of the facts, for leave to enter a suggestion on
the roll ^''. And it cannot be done by rule of court '',
unless where the plaintiff moves for leave to discon-
tinue, on payment of costs; in which case, the court
may make it part of the rule, that he shall pay dou-
ble or treble costs ^. But where a particular mode is
appointed by statute, for the recovery of double or
treble costs, as by the certificate of the judge who
tried the cause, on the 7 Jac. I. c. 5. there that parti-
cular mode must be observed "^ : so that if the judge
certify, there is no need of a suggestion ; and if he
do not, it is of no avail, except where judgment goes
by default ^.
Costs are taxed by the master, upon a bill made
out by the attorney for the prevailing party; or
more frequently without a bill, upon a view of the
proceedings; and if there have been any extra ex-
pences, which do not appear on the face of the
proceedings, there should be an affidavit made of
such expences, to warrant the allowance of them;
which
"' 1 Str. 49, 50. Cas. Pr. y 2 Str. 974. Cas. Temti.
C. B. 16. Cas. Temfi, Hardw. Hardw. 125.
126. Id. 138. 2 Str. 1021. S. ^ 2 Vent. 45. Doug. 307, 8.
C. Say. Rep. 214. 3 Wils. 7 T. R. 448. but see Doug.
442. 308. n.
X 1 Str. 50. '»Cas. TVwz/K Hardw. 138, P
OF COSTS. 905
which is called an affidavit of increased costs ''. It is
usual to give notice to the opposite attorney, of the
time when the costs are intended to be taxed; but
in order to enforce it, there must be a rule to be pre-
sent at taxing costs ": which rule is obtained from
the clerk of the rules, and a copy of it should be
duly served ; after which, if the costs are taxed with-
out notice, the taxation is irregular, and the attorney
liable to an attachment.
The means of recovering costs, as between party
and party, are by execution or action, upon a judg-
ment obtained for them; or by attachment, upon a
rule of court '^ Thus in ejectment, where there is a
verdict and judgment against the tenant, execution
may be taken out, or an action brought thereon, for
the costs ^: but where the plaintiff is nonsuited, for
the defendant's not confessing lease entry and ouster,
the lessor of the plaintiff must proceed by attach-
ment, upon the consent-rule K And so where the
nominal plaintifl' is nonsuited upon the merits, or has
a verdict and judgment against him, the only remedy
is by attachment, against the lessor of the plaintiffs.
In proceeding by attachment, a copy of the rule,
with the officer's allocatur thereon, should be per-
sonally
>• Append. Chap. XL. § 3. f Id. ibid. 1 Salk. 259.
^ Id.%2. Barnes, 182.
<i 2 H. Blac. 248. k Run. Eject. 415, 16; 7¥//j/
« Run. Eject. 415. and Baily, Mich. 6 Geo. II.
Vol. II. S I
906 OF COSTS-
sonally '' served on the party liable to the payment of
costs ; and at the same time, the original rule should
be shewn to him ', and a demand of payment made '':
And where the costs are ordered to be paid to the
attorney, the demand may be by the acting attorney
in the cause, although he act in the name of another
attorney ^ And if the costs be not paid, the court,
upon an affidavit of the circumstances, will grant an
attachment. In this court, the rule for an attachment
is absolute in the first instance '" ; and may be moved
for on the last day of term ".
To assist the parties in the recovery of costs, they
are allowed to deduct or set off the costs in one ac-
tion, against those in another. This practice, how-
ever agreeable to natural justice, does not seem to
have obtained till lately, in the court of King's
Bench": But in the Common Pleas, it has been
frequently allowed; and that, not only where the
parties have been the same ^', but also where they
have been in some measure different. Thus, a party
has been permitted to set off a separate demand,
for
h 3 T. R. 35 1 . Pope V. Smithy " 5 Bur. 2686.
fier Cur. ° 2 Str. 891. 1203. Bui. A7.
i Id. ibid. Pri. 336. 4 T. R. 124. 8 T.
k Hubbard v. Norton^ H. 36 R. 69.
G. Ill, p Barnes, 145. 2 Blac. Rep.
J Say. Rep. 95. 826. Say. Costs, 256. S. C.
m Per Buller, Just. M. 24 Bui. M. Pri. 336. 3 Bos. 8c
Geo. III. 1 Bos Sc Pul. 477. Pul. 28,
OF COSTS. 907
for costs payable to himself alone, against a joint
demand, for costs payable by himself and others "^ :
and he has also been permitted to set off a joint de-
mand, for costs payable to himself and another,
against a separate demand, for damages and costs
payable by himself only ^ But where, in an action
of trespass against four defendants, the plaintiff ob-
tained a verdict against one, and the other three were
acquitted, the court would not suffer the costs of the
three defendants, who were acquitted, to be deduct-
ed out of the plaintiff's costs, against that defendant
who was found guilty; declaring the motion to be
unprecedented '. And a judgment recovered by A.
against B. and C. cannot be set off, on application to
the general jurisdiction of the court, against another
judgment recovered against A. by the assignees of
B. under an insolvent-debtor's act; the interest of
third persons intervening, who have peculiar claims
by the statute ^ Where the application is made by
the party to whom the larger sum is due, the rule is
for a stay of proceedings, on acknowledging satis-
faction for the less sum " : But where the less sum
is
q Barnes, 146. but see 336. but see 1 H. Blac. 25.
Barnes, 130. 217. 657.
«• Say. Costs, 254. 2 Blac. t 3 East, 149.
Rep. 827. S. C. cited ; and see "^ Bui. M. PH. 336. S T
1 H. Blac. 217. 657. R. 69.
" Barnes, 145. Bui. M. Pri.
908
OF COSTS.
is due to the party applying, the rule is to have it
deducted, and for a stay of proceedings, on payment
of the balance "".
V Say. Costs, 254. and see 4 T. R. 124.
I
1
[ 909 ]
CHAPTER XLl.
Of Execution.
A FTER final judgment signed "*, the plaintiff may
in general, at any time within a year and a day,
and whilst the parties continue the same, take out
execution against the body, lands, or goods of the
defendant; provided there be no writ of eiTor depen-
ding, or agreement to the contrary ^.
There are some cases however, in which execu-
tion cannot be taken out, without leave of the court;
as where, in actions on a policy of assurance, there
is a verdict for the plaintiff against one of several un-
derwriters, and the rest have entered into the consoli-
dation rule, and agreed to be bound by it ". And it
seems, that on a writ of error coram nobis, execu-
tion taken out without leave of the court is irregu-
lar**. So where in ejectment , the landlord is admitted
to defend on the tenant's non-appearance, and judg-
ment is thereupon signed against the casual ejector,
with a stay of execution till further order, the lessor
of the plaintiff having succeeded, must apply to the
court for leave to take out execution; and in such
case, if a writ of error be brought by the landlord,
it
a And even before it is en- Hardw. 53. Jnte, 505.
tered. Gilb. C. P. 24. Law of ^ .^nte, 438, 9. 557.
Executions, 43. d Say. Rep. 166. Barnes.
'' 1 Mod. 20. Cas. tem/i. 201. 2 Blac. Rep. 1067.
910 OF EXECUTION.
it may be shewn for cause, and will be a sufficient
reason, against taking out execution^: but if the
landlord omit the opportunity of shewing it for
cause, the execution is regular, and cannot be set
aside ^ Where a verdict is taken pro forma at the
trial, for a certain sum, subject to the award of an
arbitrator, the sum afterwards awarded must be taken
as if it had been originally found by the jury, and
the plaintiff is entitled to enter up judgment for the
amount, without first applying to the court for
leave ^. But where a verdict is taken, and judgment
entered up, for a less sum than is afterwards found
due by the award, the plaintiff cannot take out exe-
cution for the whole sum awarded, but only for the
sum recovered by the judgment; and must proceed
for the residue, by action or attachment. Bonner and
Charlton, E. 43 Geo. III. K. B.
Where several actions are brought against differ-
ent parties for the same debt, as upon a bail-bond,
promissory note, or bill of exchange, each party is
liable to an execution for the whole debt, and the
costs of the action against himself; but neither of
them is liable to the costs of the actions against the
other defendants ^. And in suing out execution in
actions upon a bail-bond, we have seen, that it is
usual to apportion the debt and costs in the original
action, amongst the different defendants, so as to
levy a part on each, together with his own costs '.
in an action of debt on bond for a penalty, the
sheriff may be directed to levy the sum secured by
the condition, together with the damages and costs
recovered by the judgment, and all subsequent costs
of
e2 Str. 1241. but see 1 Salk. 84. Barnes, 58.
f 2 Bur. 757. contra.
g 1 East, 401. 1 Bos. Sc Pul. ^ Ante, 482.
97. 480. 3 Bos. £c Pul. 244. ' Jnte, 250.
OF EXECUTION. 911
of the execution, &c. ; which direction is usually in-
dorsed on the writ : And by a late act of parliament,
(43 Geo. III. c. 46. § 5.) " in every action in which
" the plaintiff' shall be entitled to levy under an exe-
** cution against the goods of the defendant, such
'* plaintiff' may also levy the poundage, fees and ex-
" penses of the execution, over and above the sum
" recovered by the judgment." But this clause of the
act seems only to apply to cases where the execution
is taken out against the goods of the defendant.
The execution following the judgment, is either
for the plaintiff", or for the defendant: for the former,
upon a judgment in assumpsit j co'venant^ case, reple-
vin, or trespass, for the damages and costs, or in
debt, for the debt damages and costs recovered; to
be levied, in an action against an executor or admi-
nistrator, of the goods of the testator or intestate, in
the hands of the defendant, if he hath so much there-
of in his hands to be administered, and if not, then
the costs, or damages and costs, to be levied de bonis
propriis K Upon a judgment in detinue, the execution
is for the goods or their value, with damages and
costs. For the defendant, upon a judgment in reple-
vin at common law, the execution is for a return of
the goods; or upon the statute 17 Car. II. c. 7. for
the arrearages of rent and costs: and in other actions,
upon a judgment of non-pros, nonsuit or verdict, it
is for the costs only.
To obtain execution of the damages, or debt da-
mages and costs recovered, or the costs only, there
are four different species of writs: first, 2i fieri facias,
against the goods; secondly, an elegit, against the
goods, and a moiety of the lands; thirdly, c\\\ extendi
facias, or extent, against the w hole of the lands, or
in
> Cro. Eliz. 887. Dyer, 185 (6). Append, Chap. XLI. §6.11.
912 OF EXECUTION.
in some cases, against the body lands and goods;
fourthly, a capias ad satisfaciendum against the per-
son. These are judicial writs, issuing out of the
court where the record is, upon which they are
grounded; and therefore when a record is removed
here from a county-palatine, or other court, by writ
of error, and the plaintiff is nonprossed, this court .
will award execution ''. So if proceedings are re-
moved out of the county court, or other court not
of record, by writ of false judgment, and the plain-
tiff is nonprossed, the execution shall issue out of the
court above ' : but in the latter case, a scire facias
seems to be necessary "\
The plaintiff having sued out one writ of exe-
cution, may, before it is executed, abandon that
writ, and sue out another of a different sort: Or he
may have several writs, of the same sort, running
against the defendant or his goods at the same time,
in different counties. But after the execution of one
^vrit, the plaintiff cannot sue out or proceed upon
another, of the same or a different sort, until that
which has been executed is returned; and then, if
a part only be levied upon a fieri facias^ the plain-
tiff may have an alias fieri facias^ or other execu-
tion for the remainder; or if the capias ad satisfacien-
dum be rendered ineffectual, by the death or escape
rjf the defendant, the plaintiff may have a new
wril:
'^ 3 T. R. 657. and see the 1 12. tit. Faux -judgment^ 6.
statutes 19 G. III. c. 70. 33 "' Id. Bro. Brev. Jud. 206
G. III.c. 68. 318.320.
' Bro. Abr. tit. E.rccutiovs.
i
OF EXECUTION. 913
writ for the whole: And he may sue out and
execute several elegits, for lands in different coun-
ties.
A ^eri facias is a common-law execution ; and,
except in a county palatine, is directed to the
sheriff of the county where die action is laid",
commanding him that of the goods and chattels of
the defendant, in his bailiwick, he cause to be
made, or levied, the sum recovered, and have it
before the king at PFes (minster, (by bill, or by ori-
ginal, wheresoever, &c.) on the return-day °, In
point of form, it should invariably pursue the
judgment; and therefore it has been hoiden, that
a special execution is not warranted by a general
judgment ''.
This writ should be tested in term-time 'J, on a day
after the judgment is, or may be supposed to have
been given: And as the judgment relates in law
to the first day of the term wherein it is signed, it
seems that t\\<t fieri facias may be tested on any day^
in
" A writ o{ fieri facias di- Chap. XLI. § 1, 8cc. in debt^
Fectecl in the first instance to id. § 7, &c. in detinue, id. § 9.
the bailiff of the isle of Ely, out in covenant, id. § 1 2 . in caae, id.
of this court, is erroneous and § 13, &c. in refUevin, id. § 16.
void; and the bailiff" is guilty of in trespass, id. § 17, £cc. and
a trespass in executing it. 3 {or the defendant, on a. ?ion/iros,
East, 128. &c. id. § 25, &c.
o For the forms of the writ i' 1 T. R. 80. and see 6 T.
oi fieri facials for the filaintiff, R. 525. 7 T. R. 27.
in assu7njisitf see Append. 'i 2 Salk. 700.
Vol. II. 2 K
014 OF EXECUTION.
in that term ' ; and it should be made returnable m
term-time, on a day certain by bill, or by origi-
nal, on a general return-day. If it be tested' or
returnable ' out of term, or in an action by bill, if
it be returnable on a general return-day", it is
void, or at least erroneous; and may be quashed
or set aside on motion, together with the proceed-
ings that have been had under it. A writ o{ fieri
facias must be signed, as well as sealed "; and may
be amended, by adding or altering the teste or
return " .
At common laAV, the fieri facias had relation to
its testc^ and bound the defendant's goods from that
time ; so that if the defendant had afterwards sold
the goods, though bond fide and for a valuable con-
sideration, they were still liable to be taken in exe-
cution, into whose hands soever they came ". This
relation being productive of great mischief to pur-
chasers, was taken away by the statute 29 Car. II.
c. 3. \ 16. which enacts " that no writ ai fieri fa-
" cias^ or other writ of execution, shall bind the
" property of the goods of the party, against whom
" such writ of execution is sued forth, but from the
" time
r 1 Cromp. 372, w Say. Rep. 12. Davey v.
s 2 Salk. 700. HollingswQj-th and another, T.
t Davey v. HoUings'U)orth 24 Geo. III. K. B.
and another, T. 24 Geo. III. ^ Gilb. Exec. 13, 14. 8 Co.
K. B. 171. Cro. Eliz. 174.440. Cro.
" 1 Wils. 155. Car. 149. 2 Vent. f218. 7 T.
' R. E. 1659. R. 21, 2. but see I Lev. 174.
OF EXECUTION. 915
" time that such writ shall be delivered to the sheriff,
" under-sheriff, or coroners, to be executed; and
" for the better manifestation of the said time,
" the sheriff, under-sheriff, and coroners, their
" deputies and agents, shall upon the receipt of
*' any such writ, (without fee for doing the same,)
*' indorse upon the back thereof, the day of the
" month or year whereon he or they received the
" same." But neither before this statute, nor since,
is the property of goods altered^ but continues in the
defendant, till execution executed. The meaning
of these words, " that no writ of execution shall
" bind the property, but from the delivery of the
" writ to the sheriff" is, that after the writ is
so delivered, if the defendant make an assignment of
his goods, unless in market-overt, the sheriff may
take them in execution "".
This statute, being made in favoiu' of purchasers,
does not alter the law as between the parties:
therefore, if the execution be tested in the defend-
ant's life-time, it may be taken out^ and execu-
ted "^ after his death. And the sheriff deriving
his
y 2 Eq. Cas. Abr. 38 1 . and ' 20. 1 Bos. and Pul. 571. Alitcr^
see 1 Ld. Raym. 252. if the execution be tested after
2 1 Ld. Raym. 695. Com. the defendant's death. 6 T.
Rep. 117. Bunb. 271. 12xMod. R. 368.
5. 2 Ld. Raym. 850. 7 Mod. » Qilb. Exec. 15, 16. Law
95, S. C. and see 3 P. Wms. oi Exec. 46. Cro. Eliz. 181.
399. and the case of Finch v. 1 Mod. 188. Comb. 33. Pr.
the earl of Tfmchelsea^ id. in Reg. 215. 7 T. R. 20.
nods. Willcs, 131. 7 T. R.
916 OF EXECUTION.
his authority from the writ, it has been holden,
that if the plaintiff die, after a fieri facias sued out,
it may be executed notwithstanding; and his exe-
cutor or administrator shall have the money '': Or
if the plaintiff has made no executor, or admini-
stration is not committed, the money must be
brought into court, and there deposited, until
&c^
The king is not bound by this statute'': And
therefore an extent at his suit, still binds from the
teste, or fiat of the baron on which it issues ". And
as between different plaintiffs, if two writs of execu-
tion are delivered to the sheriff on the same day,
he ought to execute that first which was first deli-
vered \ except it be fraudulent, and then he ought
to execute the other '^; and the court on motion
will not assist the plaintiff in the second execution ''.
But if the sheriff levy goods in execution, by vir-
tue of the writ last delivered, and make sale of
them, w hether the last writ was delivered upon the
same or a subsequent day, the property of the
goods is bound by the sale, and the party cannot
seize them by virtue of his execution first deli-
vered;
^ Cro. Car. 459. 1 Sid. 29. 222. 2 Str. 754. S. C. 2
2 Ld. Raym. 1073. 1 Salk. Blac. Rep. 1251.
-,22. S. C. f 1 T. R. 729.
'^ Noy, 73. 2 Ld. Raym. gl Wils. 44. and see Peakc
J073, Cas. M.Pri. 66.
«l 3 Atk. 739. 1 Vez. 196. «» 1 T. R. 729.
^ Bunb. 39. Gilb. Rep.
OF EXECUTION. 917
vered; but he may have his remedy against the
sheriff'.
By this writ, the sheriff has authority to seize
and sell every thing that is a chattel, belonging to
the defendant ^ except his necessary wearing ap-
parel: It has even been holden, that if the defend-
ant have two gowns, the sheriff may sell one of
them *". And he may sell leases or terms for years,
and fructiis mdustriaksj as corn growing, which
goes to the executor'; or fixtures which may be
removed by the tenant "" : but furnaces, or apples
upon trees, which belong to the freehold, and go
to the heir, cannot be sold by the sheriff on this
writ". Money in the sheriff's hands, belonging to
the defendant, may be taken in execution ° : But
the sheriff cannot take bank-notes ", &c. nor
goods pawned, or gaged for debt; nor goods de-
mised or letten for years; nor goods distrained '^
or taken and in custody of the sheriff upon a .for-
mer execution '^; nor any thing which cannot be
sold, as deeds, writings \ &.c.
In
i 1 Ld. Raym. 252. 1 Sulk. " Gilb. Exec. 19.
320. Garth. 419. S. C. and see » Doug. 231.
the case of Rybot v. Peckham, p Cas. temp. Hardw. 53.
1 T, R. 731. in notts. 4 Bac. Abr. tit. Exec. 352.
J Gilb. Exec. 19. 3 Co. 12. and see Willes, 131.
^ Comb. 356. r Show. 173. 3 Mod. 236.
> Gilb. Exec. 19. • Cas. tanfi. Hardw. 53.
«" 1 Salk. 368. 3 Atk. 13.
918 OF EXECUTION.
Ill assigning a term for years, which has been
taken in execution, it is not necessary for the she-
riff to state in the assignment, the particular inter-
est which the defendant has, for he may not be able
to come at the precise knowledge of it; but it is
sufficient for him to state, that the defendant is
possessed of the premises for a term of years, yet
to come and unexpired, and to assign all his interest
therein generally*; and it is more prudent in the
sheriff to state the interest in this way, for if he at-
tempt to state it particularly and fail, the vendee
will not have a good title". It is said, that if a
sheriff, on a Jieri facias, sell a lease or term of an
house, he cannot legally put the party out of pos-
session, and the vendee in; but the vendee must
bring his ejectment". This however must be
understood of a forcible expulsion ; for it has been
determined, that luider a feri facias, the sheriff
may justify expelling the defendant peaceably "'', or
in other words, if the defendant will consent to go
out, the sheriff may put the vendee in possession.
If the defendant, subsequent to the deliver)^ of the
writ to the sheriff, make an assignment of a lease-
hold estate, the judgment- creditor need not bring
a suit in equity to come at the estate, by setting aside
the assignment; but may proceed at law to sell the
term,
t 4 Co. 74. Cro. Eliz. 584. ^ 2 Show. 85.
S. C. w 3 T. R, 292.
a Id. ibid. 3 T. R. 294.
OF EXECUTION. 919
term, and the vendee, who is generally a friend of
the plaintiff, will be entitled at law to the posses-
sion, notwithstanding such assignment ''. Where
the defendant has only an equity of redemption, in
a leasehold estate, it seems that an execution will
not affect it, as the legal estate is in the mortgagee ^ :
The plaintiff's only remedy in that case, is by
filing a bill in equity, to redeem the estate, by
paying off the principal and interest due on the
mortgage ^'.
The sheriff, upon this writ, may take any goods
which have been fraudulently sold, or conveyed
away by the defendant; and a principal badge of
fraud is the defendant's continuing in possession '^t
For if a man sell goods, and still continue in pos-
session, as visible owner of them, such sale is frau-
dulent and void as against creditors'*. So if a
creditor by fieri facias seize the goods of his
debtor, and suffer them to remain long in the
debtor's hands, and another creditor obtain a
subsequent judgment and execution, it has been
determined often, that this is evidence of fraud in
the first creditor, and the goods in the hands of
the
^ 3 Atk. 739.
Pri. 205. 357, 8. 8 T. R.
y Id. ibid.
82. 521. but see 2 Bos. &
'■ Gilb. Exec. 15. and see
Pul. 59. 3 Esp. Cas. Ni. Pru
Twine's case, 3 Co. 81.
52. S. C.
Godb. 161. I F.sp. Cas. A'i.
* Prec. in Chan. 286, 7.
920 OF EXECUTION.
the debtor remain liable '\ So where it was prov-
ed, in an action for a false return, that the war-
rant upon a fieri facias was directed to three
persons, as special bailiifs; that the plaintiff's at-
torney was present at the time of executing it, and
ordered one of the persons to use the defendant
kindly, and not to take any of his household goods,
for that his landlord would soon be in the country,
and pay the debt; and thereupon another of the
persons rode round the farm and grounds, and
said, " / seize all this corn and cattle^'''' and took
some account thereof, for the use of the plaintiff;
afterwards, the landlord sued out a fieri facias^ and
the sheriff's bailiffs not being in possession of the
goods, under the former writ, nor having left any
body for them, he got his execution executed;
and there was no proof that he promised to pay the
j)laintiff; it was left to the juiy, upon this evidence,
whether the first execution was intended to be, or
was really executed; and the jury thought it was
not, and gave a verdict for the sheriff, which was
afterwards confirmed by the court, on a motion
for a new trial ".
But if the defendant sell his goods bond fide^ and
lor a valuable consideration, before the delivery
of the writ to the sheriff, they cannot be taken in
execution; and though he sell them fraudulently,
yet
'^ Prec. in Chan. 286, r. M Wils. 44.
I Vcz. 24i. 456.
i
OF EXECUTION. 921
yet if they be afterwards sold to another, bona fide ^
they are not liable to be taken in the hands of die
second vendee "*. And if A^ indebted to B. and C,
after being sued to judgment and execution by B^
go to C. and voluntarily give him a warrant of at-
torney to confess judgment, on which judgment is
immediately entered, and execution levied on the
same day on which B. \vould have been intitled to
execution, and had threatened to sue it out; the
preference so given by A. to C. is not unlawful
nor fraudulent, within the meaning of the -statute
13 £/iz. c. 5^
In an action against one of two partners, the
sheriff must seize all their joint property, because
the moieties are undivided; for if he seize but a
moiety, and sell that, the other will have a right
to a moiety of that moiety ; but he must seize the
whole, and sell a moiety thereof undivided, and the
vendee will be tenant in common with the other
partner ^*
On a fieri facias, the sheriff is bound at his pe-
ril to take only the goods of the defendant: and
therefore if he take the goods of a third person,
though the plaintiff assure him they are the defcn-
dant's, he is a trespasser; for he is obliged at his
peril to take notice whose the goods are. And if
he
■J Godb. 161. Rep. 277. Cowp. 449. Doug.
*= 5 T. R. 235. 650. 1 East, 367. 3 Bos. &
f 1 Salk. 392. and see 2 Ld. Piil. 254.
Raym. 871. Comb. 217. Com.
* From the Addenda to the London edition. " In such case, the court
of common pleas will not, at the request of the partnership creditors,
give the sheriiVtime to return the writ, until an account can be t.iken
of the several claims upon the partnership property. 3 Bos. & Pul.
288. And 2i fieri facias havinpf issued afjainst the effects of the defen-
<lant, who was jointly concerned in a manufactory with other persons,
to whom he was indebted to a greater amount than his whole share,
and tlie sheriff having seized the whole of the partnership property,
that court refused to refer it to the prothonotary, to inquire what was
the defendant's interest in the effects seized." .'^ Bos. i< Pul 289
Vol. II. 2L
922 OF EXECUTION.
he doubt wliether the goods shewn him are the
defendant's, he may summon a jury, debene esse., to
satisfy himself^: This will justify tlie sheriiFin re-
turning, if it be so found, that the defendant has no
goods within his baiUwick; or if it be found that he
has, will mitigate damages in an action of trespass,
provided the goods should afterwards turn out not
to be the defendant's. And as this is not a proceed-
ing immediately from the court, but merely to in-
demnify the sheriff in making his return to the writ,
the court will not set aside the inquisition of a jury,
summoned by the sheriff to inquire in whom the
property of goods seized by him under 21. fieri facias
is vested ''.
As the sheriff cannot take the goods of a diird
person, so if the defendant become bankrupt^ before
the delivery of the writ to the sheriff, or as it
should seem, before it is actually executed ', the she-
riff cannot legally take or dispose of them, after no-
tice of the act of bankruptcy, and of a commission
sued out or docket struck: For, per Holt Ch. J.
"ifa writof execution be deliv^ered to the sheriff
against A. who becomes bankrupt before it is exe-
cuted, the execution is superseded; consequently,
the property of the goods is not absolutely bound
by
sDalt. Sher. 146. Gilb. R. 177.
Exec. 21. Bac. Abr. tit. Exec. ^ 6 T. R. 88.
352. 4 T. R. 633. 648. 7 T. ' 1 Lev. 173, 4.
OF EXECUTION. 923
by the delivery of the writ to the sheriff J." But if
the sheriff seize and sell the goods, before he has no-
tice of an act of bankruptcy, &.c. he is excused'';
and if he sell them after such notice, though he may
be sued in tro'uer \ yet he is not liable to an action
of trespass '". An execution against the goods of a
bankrupt, taken out after his certificate is signed, but
before it is allowed, is valid": And where a defen-
dant was taken in execution, under similar circum-
stances, and paid the debt and costs to the sheriff,
the court on application refused to relieve him. But
\i2i fieri facias^ issued against a bankrupt before his
certificate obtained, be not executed till after, the
court will order the goods to be restored, even though
he has not pleaded the certificate •* : and if any thing
be alleged to invalidate the effect of the certificate,
the court will direct a trial on a plea of bankruptcy ''.
On 2i fieri facias against a husband^ it seems that
the sheriff cannot take in execution goods vested in
trustees before marriage, for the benefit of the isiife^.
And
J 1 Ld. Raym. 252. and see " JVeatly and Eaglcton^ E. 24
2Eq. Cas. Abr. 581. Geo. III. K. B.
k 1 Blac. Rep. 205. 2 Blac. p 1 Bos. 5c Pul. 427.
Rep. 829. S. P. 4 Id. ibid.
1 1 Burr. 20. 1 Blac. Rep. •• Cowp. 432. 3 T; R.
65. S.C. 618. and see Co. Lit. 351. a.
Bi 1 T. R.475. n. 1. but see 2 Vern. 239. 4
n/rf. 361. and see 1 Blac. T. R. 638,9. 8 T. R. 82.
Rep. 400, 521,
924 OF EXECUTION.
And it has been determined at nisi prius^ that the
mere possession of goods is not sufficient to subject
them to an execution, issued against the party pos-
sessing them, if it be satisfactorily proved that they
were really and bond fide sold to a third person, as a
trustee for his wife, and possession taken by such
third person '.
On 2, fieri facias against an executor^ for his own
debt, the goods of the testator, in the hands of the
defendant, cannot be taken in execution '. But if an
executrix use the goods of her testator as herown, and
afterwards marry, and then treat them as the goods
of her husband, she shall not be allowed to object to
tlieir being taken inexecution forherhusband'sdebt".
The sheriff, upon a fieri facias, cannot justify
breaking open the outer door of a dwelling-house ' ;
but if that be open, he may, after demanding and
being refused admittance, break open an inner
door''': And as goods may be distrained, so it
seems they may be tiiken in execution, through
the windows, if open ''. When the officers are once
in the house, they may break open any chamber-
doors, or trunks, for executing the writ^, A
seizure of part of the goods in a house, by virtue
oi2i fieri facias, in the name of the whole, is a good
seizure
-^ 2 Esp. Cas. A7. Pri. 574. 5 Co. 93. Gilb. Exec. 17, 18,
* 4T. R. 621, Cowp. 1.
>i 1 Bos. &c Pul. 293. 2 ^^ Comb. 17.
Ksp. Cas. Mi. Pri. 657. S. C. ^1 Rol. Abr, 671.
V J 8 Ed. IV. 4. pi. 19. y 2 Show. 87.
i
OF EXECUTION. 925
seizure of all ^ : And the sheriff, by the seizure, has
such a property in the goods, that he may maintain
trespass or tro'uer^ against the defendant or a third
person, for taking them away ^. And he may sell
them after the return of the writ, and even after he
is out of office, without a venditioni exponas ^.
But, before the removal of the goods, the sheriff
should take care, if the defendant be tenant of the
premises on which the goods are taken, that the
landlord is satisfied what, if any thing, is due to him,
not exceeding a year's rent. For by the statute 8
Ann. c. 14. () 1. "no goods or chattels whatsoever,
" lying or being in or upon any messuage, lands or
*' tenements, which are or shall be leased for life or
*' lives, term of years, at will, or otherwise, shall be
" liable to be taken by virtue of any execution, on
" any pretence whatsoever, unless the party, at whose
" suit the said execution is sued out, shall before the
*' removal of such goods from off the said premises,
" by virtue of such execution or extent, pay to the
" landlord of the said premises, or his bailiff, all
*' such sum or sums of money, as are or shall
*' be due for rent for the said premises, at the
" time of the taking such goods or chattels, by
*' virtue of such execution, provided the said ai'-
" rears
7' 2 Ld. Raym. 725. »> Cro. Jac. 73. Yelv. 44.
^GWh.Exec. 15.2 Saund. S. C. 1 Salk. 323. 1 Vez.
4T. 2 Ld. Raym. 1073. 196.
926 OF EXECUTION.
*" rears of rent do not amount to more than one year's
" rent; and in case the said arrears shall exceed one
" year's rent, then the said party, at whose suit such
" execution is sued out, paying the said landlord or
"his bailiff one year's rent, may proceed to execute
"his judgment, as he might have done before the
" making of this act ; and the sheriff, or other officer,
" is thereby empowered and required to levy, and
" pay to the plaintiff, as well the money so paid for
"rent, as the execution- money."
" Provided always, that nothing in this act con-
" tained shall extend, or be construed to extend, to
" let, hinder or prejudice her majesty, her heirs or
" successors, in the levying, recovering, or seizing
"any debts, fines, penalties or forfeitures, that are or
"shall be due, payable or answerable to her said
"majesty," he''.
This statute extends to all manner of execu-
tions for the subject, upon judgments for the de-
fendant as well as the plaintiff''; and the landlord
is intitled to his whole rent, without deduction
of poundage ^. But after he has had one year's rent
paid him, he is not intitled to another, upon a se-
cond execution^; and the ground-landlord is not
within the act, where there is an execution against
the
■^ § 8. and see Bunb. 5. 269, « 1 Str. 643.
d 2 Wils. 140. f2 Str. 1024.
OF EXECUTION. 927
the under-lessee ^. The goods of a tenant are liable
to a year's rent, notwithstanding an outlawry in a
civil suit''. And where a sheriff's officer, being in
possession of the tenant's effects under an outlawry,
made a distress for rent, and sold the goods so dis-
trained, and afterwards the outlawry was reversed; it
was ruled, that the officer washable to pay the pro-
duce of the goods to the landlord, in an action for
money had and received''. But a commission of
bankrupt is not considered as an execution within
this statute ; and as the landlord, on the one hand,
may distrain for his whole rent, even after an as-
signment and sale by the assignees, before the goods
are removed off the premises; so, on the other hand,
if he suffer the goods to be removed, without dis-
training, he must in general come in for his rent pro
rata with the other creditors '. If the sheriff remove
the goods, without satisfying the landlord, he is li-
able to an action, which may be brought by the ex-
ecutor or administrator of the landlord ^ ; but in or-
der to maintain an action, there must be a demand
made of the rent, before the goods are removed ': Or,
instead of bringing an action, the landlord may move
the court, that he may be paid what is due to him,
out of the money levied, if sufficient for the purpose,
or otherwise so much as it will satisfy '".
On
K2 Sir. 787, 1 Id. 97.
''7T. R. 259. mCas. temfi. Hardw. 255.
i 1 Atk. 103,4. 2 Wils. 140. 1 Cromp. 381.
•^ 1 Str. 212. Willcs, 377. Barnes, 199.211.
928 01- EXEC U HON.
On the return- day of the fieri facias^ the sheriff
may be called upon by rule, to return the WTit; and
if he do not return it, or offer a reasonable excuse,
the court will grant an attachment against him. But
if the property of the goods be disputed, which fre-
quently happens on a commission of bankrupt, &c.
the court, on the suggestion of a reasonable doubt,
will enlarge the time for the sheriif 's making his re-
turn, till the right be tried between the contending
parties, or one of them has given him a sufficient
indemnity. And accordingly in a late case, the court,
upon the application of the sheriff, enlarged the
time for his making a return to a writ oS. fieri facias ^
upon suggestion of a reasonable doubt, whether the
goods seized under the writ were not covered by an
extent^ afterwards issued at the suit of the crown for
malt-duties, for the purpose of inducing the plaintiff^
to go into the court of Exchequer, and there contest
the question of right with the crown, in a more eli-
gible manner than in this court ".
The returns, commonly made by the sheriff to
2i fieri facias 2iVQ first, ?mlla bona°^ which is either
general, that the defendant has no goods in his
bailiwick, whereof he can cause to be made the
sum directed to be levied, or any part thereof; or
special, with this addition, that the defendant is a
bencr
n 7 T. R. 174. and see I « Append. Chap. XLI. ^
East, 338. 3 Bos. £^ Pul. 288. 33. 35.
OF EXECUTIQN. ^29
beneficed clerk, having no lay fee within his baili-
wick''; or, being an executor or administrator, that
he has wasted the goods of the testator or intestate "^ ;
secondly ^ Jie?'i Jeci, or that die sheriff has caused to
be made, of the defendant's goods, the whole or a
part of the money, which he has ready to be paid to
the plaintiff; thirdly, that he has taken goods of the
defendant, to a certain amount, which remain in his
hands for want of buyers '; or fourthly, that he has
made his mandate to the bailiff of a libert}% who has
given him no answer, or returned mdla bona, &c ^
If the sheriff return, on ?l fieri facias y that the de-
fendant has no goods in his bailiwick, the plaintiff,
if it be true, may have an alias fieri facias ", and af-
ter that, if necessary, a piuries ' into the same county;
or he may have a testatum fieri facias into a different
county, suggesting that the defendant has goods
there ^^ : And a testatum may be awarded into
Wales y or a county palatine ". In any of these
writs, there may be a clause of non omittas y ; com-
manding the sheriff, that he do not omit, on ac-
count
p Append. Chap. XLI. §34. i /(/. § 44.
q Tlies. Bre-v. 116, 17. Ap- v /rf. ibi^,
pend. Chap. XLI. § 36. w u. § 46, 48, &c.
r Append. Chap. XLI. § J' Cro. Jac. 484. and see 1
37, 8cc. Lev. 256. 29 1 . T. Raym, 206.
^ Id. % 42, 3. 2 Saund. 193. R. H. 19 Jac. L
r/rf. § 38.41. y Append. Chap. XLL $ 45.
Vol. II. 2 M
930 OF EXECUTION.
count of any liberty in his county, but that he enter
the same, &c. If the return be not true, the plaintiff
may maintain an action against the sheriff for a false
return. And where the sheriff returns nulla bona^
and there is a recovery against him for his false return,
that vests no property of the goods in him or tlie
plaintiff; but they remain in the defendant, and are
liable to a subsequent execution for his debt ^.
The plaintiff cannot regularly sue out 2i fieri facias,
into a difFerent county from that where the action is
laid, without a testatum "; nor a testatum without a
-^x^ViQM^ fieri facias ''. But the award of a testatum
on the roll, is sufficient to warrant a ^my^d^^ into
a different count}^ "; or if a fieri facias be sued out
into one county, when it should have been a testatum,
without any ou.^\y\^ fieri facias, and the plaintiff af-
terwards sue out an oxi^xvi^ fieri facias, the court will
permit the party to amend the former, on payment
of costs '^; and they will not set aside a testatum, sued
out \vithout an oxi^msX fieri facias to warrant it, if the
plaintiff afterwards sue out such QiX\^vi\?\ fieri facias,
and
''^ 2 Vern. 239. sufficient however, to verify
3 2 Blac. Rep. 694. Palter the fact of an ov\%\\\zS. fieri fa-
and Ellhon, H. 25 Geo. III. cias having been auarded, by
K. B. 3 T. R. 657. affidavit ; but the plaintiff
b 3 T. R. 388. ought to have the roll in
<= Barnes, 196, 7. and see court. -Per O^r. M. 42 G. Ill
Prac. Reg. 210. 12. It is not '^ 3 T. R. 657.
OF EXECUTION.
931
and get it returned and filed, so as to be able to pro-
duce it on shewing cause % though a writ of error
has been previously brought ^. So where the record
was produced in court, on which an original capias
ad satisfaciendum was entered, with the sheriff's re-
turn thereto, the court permitted the plaintiff to sue
out and seal an original capias ad satisfaciendum^ to
warrant a testatum into a different county 2. And it
is said, that the fieri facias on which the testatum is
founded, is returned of course by the attornies them-
selves, as originals are ^. In all continued writs, the
alias or testatum must be tested the day the former
was returnable ' ; and \i2i fieri facias issue to the she-
riff, returnable on a general return-day, and he at
that day return nulla hona^ a testatum fieri facias may
issue on the day following, and execution thereon
will be good; for though, on mesne -process, there
can be no testatum^ till the quarto die post^ yet it is
otherwise in writs of execution, for on these the par-
ty has no day in court J.
If the sheriff return nulla bona^ and that the de-
fendant is a beneficed clerk, having no lay fee, there
goes a leijari facias to the bishop of the diocese
wherein the benefice is, commanding him to le-
vy
e2 Salk. 589, 90. Bames, g 6 T. R. 450.
200,201.208,9.11. 3 T. R. »' 2 Salk. 590,
388. 657. i Id. 699.
f 5 T. R. 272. j T, Jon. 200.
932 OF EXECUTION.
vy the sum recovered, of the ecclesiastical ^oods and
chattels of the defendant ''. This writ is similar
to a Jieri facias; and the bishop, who is in nature
of a temporal officer or ecclesiastical sheriff, may
seize and sell the profits of the benefice ': But he
must return fej'i feci, and not sequestrari feci, upon
this writ "". He may also, like the sheriff, be cal-
led on by rule to return the writ; and if he make
a false return, will be liable to an action ". Upon
this writ, the bishop or his officer makes out a
sequestration, directed to the churclwardens, or
iipon a proper security, to persons of the plaintiff's
own appointment, requiring them to sequester the
tithes, and other profits of the benefice ° ; which
sequestration should be forthwith duly published,
by reading it in church during divine service, and
afterwards at the church-door, and fixing a copy
tliereon : for where a sequestration was made out,
and not published while the writ was in force, but
was stayed in the register's hands, by desire of the
plaintiff's attorney, the court held, that it had no
priority, as against other sequestrations, afterwards
made out and duly published ; but that if it had
been published, the execution would have taken
effect,
k Gilb. Exec. 26. Bac. Abr. 1 Salk. 320. 1 Ld. Raym. 265.
at. Exec. 360. Append. Chap. S. C.
XLI. § 5 1, Sec. o Burn, Eccles. Law, tit. Se-
> 2 Mod. 257, 8. questration, 3 V. 317. Append
^ 1 Str. 87. Chap. XLI. §56.
* Gilb. Exec. 26. and see
OF EXECUTION. 933
effect, and must have been first satisfied, notwith-
standing it was then returnable ^\ It is said, that
this writ of sequestration must be renewed every
term^; but it seems, that if the writ be laid and
executed, before the day of the return, the mesne
profits may be taken under it, after the writ is re-
turnable, otherwise not ^
In an action against an executor or ad7ninistrator,
if the sheriff return nulla bona to the Jieri facias,
the plaintiff must proceed by scire Jieri inquiry %
or action of debt upon the judgment, suggesting
a de'uastaiyit: but if a devastavit be returned by the
sheriff, the plaintiff may have execution immedi-
ately against the defendant, by capias ad satisfacien-
dum S or feri facias de bonis propriis ".
li fieri feci be returned, the plaintiff may proceed
against the sheriff for the money, by rule of court,
or action of debt founded on his return ; or, though
no return be made, an action of debt^ account or
assumpsit, will still lie against the sheriff, or his
executors, for the money levied ^ : And in such an
action, the defendant cannot plead the statute of li-
mitations ;
V Legassickev.BishofiofEx- Chap. XLII. § 47.
eter, E. 22 Geo. III. K. B. 1 ' Append. Chap. XLI. §
Cromp. 359. 103, &c.
q 1 Cromp. 345. Wood's ^ Thcs. Brev. 46, 7. 122.
Inst. 608, 9. 125. Append. Chap. XLI. §
«■ Burn, Eccles. Law, tit. Se- 57, 8.
questration,SY.3l7. ^ Cro. Car. 539. 2 Sho\y
» Lil. Ent. 664. Append. 79. 281. Gilb. AVcc. 25,
934 OF EXECUTION.
mitations; for though, till the ^vrit be returned,
it is not a matter of record, yet it is founded upon
a record, and has a strong relation to it ". If a part
of the money only be levied, the plaintiff may have
2i fieri facias for the residue""; and the first writ must
be returned, before a second execution can be taken
out; for that must be grounded on the first writ,
and recite that all the money was not levied thereon :
But if upon the first, all the money had been levied,
the writ need not have been returned, for no further
process was necessary ^ : And if nothing be levied
on the first writ, it need not be recited in the second.
If the sheriff return, that he has taken goods,
which remain in his hands for want of buyers, the
plaintiff may sue out a writ of lienditioni exponas^
reciting the former writ and return, and comman-
ding the sheriff to expose the goods to sale, and
have the monies arising therefrom in court, at the
return of it ^ If goods are not taken to the value
of the whole, the plaintiff may have a 'venditioni
exponas for part, and 2i fieri facias for the residue,
in the same writ ^ ; and it seems, that a "venditioni
exponas may be directed to the new sheriff, where
the
w 2 Show. 79. ■^ Append. Chap. XLI. § 64.
'' Append. Chap. XLI. § Cowp. 406. but see 1 Bos. &
59, &c. Pul. 359.
y 1 Salk. 318. Gilb. Exec. ^ Thes. Brev. 305. Append
36. Chap. XLI. § 65.
OF EXECUTION. 935
the old one returns, that he has taken goods, which
remain in his hands for want of buyers ''. But the
more usual way of proceeding, in such case, is by
writ of distringas to the new sheriff, commanding
him to distrain the old one, till he sell the goods %
&c. Of this writ there are two sorts; the first,
which is the more ancient, commands the sheriff,
to whom it is directed, to distrain the late sheriff, \
so that he expose the goods to sale ^, and cause
the monies arising therefrom to be delivered to the
present sheriff, in order that such sheriff may have
those monies in court, at the return ^ : The other
writ, which is the most usual \ is to distrain the late
sheriff, to sell the goods, and have the money in
court himself ^
If the writ of Jieri facias^ &c. be iiTcgular, the
defendant may move the court to set it aside, and
that the goods or money levied may be restored to
him. A third person, whose goods are taken un-
der it, may also move the court, to have them re-
stored. But if the right be not clear, the court
will leave him to his action against the sheriff; or
they will sometimes direct an issue for trying it, and
retain
^ 2 Saund. 343. f 6 Mod. 299.
c Append. Chap. XLI. § 66, e Rast. 164. Thes. Brev. 90,
Sec. Off. Brev. 45. Append. Chap.
J Gilb. Exec.^X. XLI. § 66, &c. 2 Ld. Raym,
= 34Hen. VI. p6, 1074, 5. 1 Salk. 323. S. C. ■
936' OF EXECUTION.
retain the money in court, to abide the event of the
trial.
Upon an erroneous judgment, if there be a regu-
lar writ, the party may justify under it, till the
judgment be reversed; for an erroneous judgment
is the act of the court '' : And the party need not
set forth in his plea, that the writ has been retur-
ned. But if the judgment or execution be irre-
gular^ the party cannot justify under it, for that is
a matter in the privity of himself or his attorney:
And if the sheriff or officer, m such case, join in
the same plea with the party, he forfeits the bene-
fit of his defence '. The sheriff or officer however
may justify under an irregular judgment, as well as
an er-oneous one; for they are not privy to the ir-
regularity : And so as the writ be not void, it is a
good justification, however irregulai-, and the pur-
chaser will gain a title under the sheriff; for it would
be very hard, if it should be at the peril of the pur-
chaser, \jnd.eY 2i fieri facias y whether the proceedings
were regular or not'^'. But a justification by the
sheriff or officer, under a returnable process, is ill,
without shewing a return of it; and if the plaintiff
join with the officer, there must be judgment against
both ^ Where the plaintiff has execution, and the
money is levied and paid, and the judgment is af-
terwards reversed, there the party shall have resti-
tut ion
h 1 Str. 509. k 1 Vez. 195.
'^ Id. ibid. 1 2 Str. 1184.
OF EXECUTION. 937
tution without a scire facias ; because it appears on
the record that the money is paid, and there is a cer-
tainty of what was lost; otherwise where it was. le-
vied, but not paid, for then there must be a scire
faciasy suggesting the matter of fact, uiz. the sum
levied, &.c. But where judgment is set aside after
execution for irregularity, there needs no scire facias
for restitution ; but if it be not made, an attachment
shall be granted upon the rule, for a contempt "'.
When the sheriff has taken goods upon 2iferi fa-
cias, to the amount of the sum directed to be le-
vied, the defendant is discharged, and may plead it
in bar to an action of debt, or scire facias, upon the
judgment": But where two persons are jointly and
severally bound, and execution is had against one of
them, and his goods are seized, but not sold, this
cannot be pleaded in an action of debt against the
odier obligor ; because it is no actual satisfaction °.
After 2i fieri facias, if the plaintiff be not satisfied,
he may have an elegit against the goods of the de-
fendant, and a moiety of his lands ■', or a capias ad
satisfaciendum
« 2 Salk. 588. ^ Id. ibid. 2 Show. 394.
n 2 Ld. Raym. 1072. 1 Salk. p Append. Chap. XLI. f
822. S. C. 69.
Vol. II. 2N
93S OF EXECUTION.
satisfaciendum against his person; or he may sue out
either of these writs in the first instance.
An elegit is founded on the statute Westm. 2.
(13 Ediv. I.) c. 18. by which it is enacted, " that
" when a debt is recovered or acknowledged in
" the king's court, or damages awarded, it shall be
" in the election of him who sues for such debt or
*' damages, to have a writ to the sheriff, for levy-
" ing the debt of the lands and chattels, or that the
" sheriff cleliver to him all the chattels of the debt-
" or, (except his oxen, and beasts of the plough,)
" and a moiety of his land, until the debt be le-
*' vied, by a reasonable price or extent; and if he
" be evicted, he shall recover by WTit of novel dis-
" seisifi, and aftenvards by writ of re-disseisin, if
*' there be occasion." The writ we are now speak-
ing of lies against the defendant in his life-time, or
his heir and tertenants after his death '^ : And it may
be had against peers of the realm, as well as others;
and also against executors and administrators,
upon a de'vasta'oit returned ^ But it lies not against
an heir, till his full age; and therefore, on a scire
facias brought against him, the parol shall demur,
because he may have a good plea to bar the exe-
cution, which might be mispleaded '. This writ
may be sued out after a year, without a scire facias,
upon awarding an elegit on the roll % and continuing
it
a Append. Chap. XLI. § ^ Gilb. Exec. 58.
70. ' Carth. 283. Append. Chap
' I Cromp. 346. XLI. § 72..
or EXECUTION, 939
at down by vkecomes non misit bre'oe; and the plain-
tiff may have elegits awarded into as many different
counties as he pleases, without being under the ne-
cessity of suing out testatums "*. But it is said, that if
he award an elegit into one county, and extend the
lands upon that writ, and afterwards file it, he is bar-
red, and cannot sue out an elegit into another count}'- '^^.
Upon this writ, the sheriff is to impanel a jury;
who are to make inquiry of all the goods and chat-
tels of the debtor, and to appraise the same, and also
to inquire as to his lands and tenements'''. The
goods and chattels being appraised, are to be deli-
vered to the plaintiff, at the price set upon them ^;
and in this respect, an elegit differs from ^. fieri fa-
cias^ upon which the sheriff cannot deliver the
goods, though he may sell them, to the plaintiff >'.
If the goods and chattels are sufficient to satisfy
the plaintiff's demand, the sheriff ought not to ex-
tend the lands', but otherwise he may extend
them: And he may not only extend a moiety of
the lands, properly so called, but also of a reversion '',
or rent-charge issuing out of land ''; and by the 29
Car. II. c. 3. lands, &c. held in trust may be ex-
tended,
» 1 Cromp. 546. 352. Law " Gilb. Exec. 33.
of £xec. 208. Append. Chap. y 1 Ld. Raym. 346. Bac.
XLI. § 73. Abr. tit. Exec. 352.
V 1 Cromp. 346. 352. Law ^ 1 Cromp. 346. 2 Inst
of Exec. 287. but see Gilb. 395.
Exec. 53. a Gilb. Exec. 38.
»•• Bac. Abr. tit. Exec. 349. b Id. 39. Moor, 32.
940 OF EXECUTION.
tended, in the hands of trustees, for the debt of
cestui que trust. But copyhold lands are not exten-
dible ^•, nor a rent- seek '^, advowson in gross ^'j or
glebe belonging to a parsonage or vicarage "". A
term for years may be either extended, or sold as
part of the personalty f^: If it be extended, the
plaintiff is accountable for all the profits he receives
out of the term, upon such extent; and if he re-
ceive the debt out of such term, before it expires,
the defendant shall be restored to the term itself '',
but otherwise he shall keep the term, and not ac-
count for the profits of it '.
No notice is given of executing an elegit K And if
there be no lands, the sheriff need not take or return
an inquisition ''; but otherwise an inquisition must be
taken and returned, describing the lands with conve-
nient certainty ^; and after it is taken, the sheriff must
deliver a moiety to the plaintiff, by metes and bounds ^ :
If he do not, the return is ill, and may be quashed for
uncertainty " ; and if the defendant be joint-tenant, or
tenant in common, it ought to be specially alleged
in
c 1 Rol. Abr. 888. 3 Blac. J 1 Cromp. 363.
C^om. 419. k2Str. 874.
d Cro. Eliz. 656. ' Moor, 8 Com. Dig. tit.
e Gilb. Exec. 39. Exec.{Q,. 14). Append. Chap.
f/(i. 40. XLI. §71.
SB Co. 171. "^Dalt. Sher. 135.
^ Gilb. Exec. 35. ^- Garth. 453.
^ Id.
oo.
OF EXECUTION. 941
in the return °. But it has been adjudged, that upon
an elegit^ the sheriff is not bound to deliver a moiety
of each particular tenement and farm, but only cer-
tain tenements, &c. making in value a moiety of the
whole ''. If he deliver more than a moiety, the exe-
cution is void ''.
It was formerly usual for the sheriff to deliver ac-
tual possession of a moiety of the lands : But he now
only delivers legal possession, and in order to obtain
actual possession, the plaintiff must proceed by <?;>rr-
ment'' \ in which he must not only prove the judg-
ment, and by the judgment-roll, that ^xs. elegit issued
and was returned, but he must also prove the WTit of
elegit^ by a true copy thereof, and the inquisition
thereon; for it is the elegit^ and inquisition upon it,
which carve out the term, and give the right of entry,
the judgment-roll being no more than a memorandum^
that the elegit issued and was returned %
After an elegit^ if lands be duly extended, and
delivered to the plaintiff, he cannot afterwards
have any other species of execution, unless in case
of eviction; when he may proceed, in the metiiod
pointed out by the statute JVestm. 2. or if he be
evicted out of all the lands, he may sue out a scire
facias
o Hut. 16. r 2 Eq. Cas. Abr. 38 1 . 3 T.
1' Doug. 472. R. 295.
q 2 Salk. S63, 4. 1 Vent.259. '^ Gilb. £vid. (by Lojt,)
S, C. 10, 1 1 . Run. Eject. 330.
942
OF EXECUTION.
facias upon the statute 32 Hen. VIII. c. 5. to have
a new writ of execution, for what remains unsatis-
fied : But if lie be evicted out of part onl}', or of the
whole but for a time, as by a prior judgment, so that
the extent is still continuing, there is no remedy by
this statute ^ If the defendant has no lands, and the
goods are not sufficient to satisfy the plaintiff, he may
have a capias ad satisfaciendum after an elegit " : And
a void elegit or inquisition, being as none, will not
prevent the plaintiff from having a new elegit with-
out a scire facias^ though it be after the year "'.
A question having arisen, in the court of Chan-
cery, whether, upon an elegit, the plaintiff could
be allowed interest, beyond the penalty of a judg-
ment, lord Hardwicke was of opinion, that at law,
upon a judgment entered up, the penalty is the de-
bitum recuperatum, and the stated damages between
the parties; but if the creditors do not take out an
execution against the person of the debtor, or his
personal estate, but extend the lands by elegit,
which the sheriff does only at the annual value,
and much below the real, the creditor holds quous-
que debitum satisfaction fuerit, and at law the
debtor cannot, upon a writ ad computandiim, in-
sist upon the creditor's doing more than account
for
t Co. Lit. 289. b. Gilb. Exec. 1451 . S. P.
sr, 8. V Gilb. Exec. 54.
a 1 Str. 226. 2 Ld. Raym.
OF EXECUTION. 943
for the extended value ; but if the debtor come into
a court of equity for reUef, this court will give it
him, by obliging the creditor to account for the
whole that he has received; and as a person who
comes for equity must do equity, will direct the debt-
or to pay interest to the creditor, even though it
should exceed the principal : And he said, he remem-
bered very well, upon Serjeant Whitaker''^ insisting,
before Lord Chancellor Cowper^ that this would be
repealing the statute of Westminster, his Lordship
said, he would not repeal the statute, but he would
do complete justice, by letting the creditor carry
on the interest upon his debt, as he was to account
for the whole he had received "".
An extendi facias or extent " lies in the following
cases ; first, for the debt of the crown; secondly,
on a statute-merchant or statute-staple, or recogni-
sance in nature of a statute- staple ; and thirdly, on
a judgment in an action of debt against an heir, on
the obligation of his ancestor.
The king's debts are either of record, or not of
record: in either case, the execution for them is a
writ of extent, which is either an immediate extent ^,
or
w 3 Atk. 517, 18. and see cution at the suit of the
Amb. 520, 1. 1 East, 403. crown. 1 East, 338. (c).
436. y Append. Chap. XLI. ^
-'' This is properly an exe- 75, &c.
944 OF EXECUTION.
or an extent in aid of the king's debtor \ As to
debts of record, they bind the lands of the debtor,
from the time of his becoming in debt to the king;
and an execution may be taken out for such debts,
though an elegit may have been issued at the suit of
a subject ^ : And if the king's debt be prior on record,
it binds the lands of the debtor, into whose hands
soever they come ; because it is in the nature of an
original charge upon the land itself, and therefore
must subject every one that claims under it: But
if the lands were aliened in the whole or in part, as
by granting a jointure, before the debt contracted,
such alienee claims prior to the charge, and in that
case the land is not subject ''.
As to debts not of record, the remedy for the
recovery of them is governed by the statute 33
He?u VIII. c. 39 ^ by which it is enacted, that
" all obligations and specialties, which shall be
" made for any cause or causes touching or in any
*' wise concerning the king's most royal majestj',
" or his heirs, or to his or their use, commodity
*' or behoof, shall be made to his highness, and
" to his heirs, kings, in his or their name or names,
" by these words, to the lord the kingy and to none
" other person or persons to his use, and to be
*' paid
2 Append. Chap. XLI. § 79. tit. Execution, K.
^ 2 Rol. Abr. 156, 7. Gilb. ^ Id. ibid.
fixcheq. 88. 51, Bar. Abr, ^ § oO.
li
OF EXECUTION. 945
paid to his highness by these words, to be paid
to the said lord the Hng, his heirs or executorsy
with other words used and accustomed in com-
mon obligations ; and that all such obligations
and specialties shall be good and effectual in the
law, to all intents and purposes, and shall be of
the same nature, kind, quality, force and ef-
fect, to all intents and purposes, as the writings
obligatory taken and acknowledged according
to the statute of the staple at Westminster : And
that all suits, process, judgments, decrees and
executions, hereafter to be taken, pursued, or
given for the king, in any of the king's courts
mentioned in that act, of or upon any of the
same obligations, shall be of the same or like
strength, force, effect and intent in the law to
all purposes, only against all and all manner
such person and persons as have been bound in
such obligations or specialties, as well spiritual
as temporal, and against their heirs, successors
executors and administrators, and every one of
them, and against none other, as writings obli-
gatory taken and acknowledged according to the
statute of the staple at Westminster, at any time
before the making of that act, had been used to
be taken, exercised and executed against any
lay person or persons''."
" And if any suit be commenced or taken, or
" any
^ § 53.
Vol. II. 20
946 OF EXECUTION.
" any process awarded for the king, for the reco-
" very of any of his debts, then the same suit and
*' process shall be preferred before the suit of any
" person or persons ; and that the king, his heirs
" and successors, shall have first execution against
^' any defendant or defendants, of and for his said
" debts, before any other person or persons, so
" ahvays that the k'mg''s suit be taken and com-
" menced^ or process awarded for the said debt ^ at
" the king^s suit, before judgment given for the
*' said other person or persons^.''''
This statute is not confined in its operation to
bond debts only, but extends to all debts and exe-
cutions, at the suit of the king^. And it is held
to be restrictive upon the old prerogative, and in-
troductive of anew law; for ita quod, so always
that the king^s suit, &.c. makes a condition prece-
dent, and a limitation : Hence therefore, a judgment
and execution executed by elegit, before any suit
or process commenced by the king, shall be pre-
ferred to the extent of the king, issuing on a bond
debt, bearing date before the subject's judgment,
and assigned to the king before the subject's exe-
cution *-'.
With respect to persojial pro]yerty, the general
rule is, that where the king and a subject stand in
equal degree, and the property of the debtor re-
mains
« § 74. g Hard. 23. but see Dyer,
f 7 Co. 18. b, 67. b.
I
or EXECUTION. 947
mains unaltered, the king's prerogative must pre-
vail^: Quandojiis domini regis et subditi iJisimul
concurrunt^ jus regis prceferri debet ^: and there-
fore if an extent at the suit of the crown, be tested
before or on the day of delivering the subject's
execution to the sheriff, the former shall have the
preference "\ So an extent against the king's debt-
or, tested after a distress taken for rent, with notice
to the tenant, and appraisement made, but before
sale, shall prevail against the distress ^ And as the
crown is not bound by the acts relating to bank-
rupts, not being named in them, therefore an ex-
tent served upon the property of the bankrupt,
will bind from the teste of the writ, and till actual
assignment by the commissioners; but the king is
bound by an actual assignment, because the pro-
perty is then absolutely transferred to a third per-
son™.
But as by the common law, abridged as it is by
the statute of frauds, the property of the debtor's
goods is bound by the delivery of the writ to the
sheriff, there then remains no property in the
debtor, on which the prerogative of the crown
can attach": And therefore if goods be taken in
execution, on 2ifieri facias against the king's debtor,
and
I»4T. R. 411. • 112. 2 Vcz. 288. S. C.
i 9 Co. 129. b. m W. Jon. 202. Bumb. 202-
k Id. ibid. 2 Show. Rep. 480.
' Biinb. 42, 3. 569. Parker, " 4 T. R. 41 1.
948
OF EXECUTION.
and before they are sold, an extent issues at the
king's suit, grounded on a bond debt, and tested
after the delivery of tht Jieri facias to the sheriff,
these goods cannot be taken upon the extent".
But process sued out by the crown against a de-
fendant to recover penalties, upon which judgment
for the crown is afterwards obtained, entitles the
king's execution to have priority, within the sta-
tute 33 Hen. VIII. c. 39. § 74. before the execu-
tion of a subject, issued on a judgment recovered
against the same defendant prior to the king's
judgment, but subsequent to the commencement
of the king's process; the king's writ of execu-
tion having been delivered to the sheriff, before the
actual sale of the defendant's goods under the
plaintiff's execution ^
Immediate extents take place among them-
selves, according to the teste 'i; And it is a rule,
that an extent cannot be ante-dated, but must bear
teste on the day it issues, though it be out of term ;
for it issues, out of the equity side of the Exchequer,
Vv^hich is always open^ An extent in aid is a writ
issued at the instance of the king's debtor, for the
recovery of his own debt^: but this being of an in-
ferior
o 3 Mod. 236. Comb. 123.
Parker, 262. Com. Dig. tit.
Debt^ G. 8. Uppom v. Sum-
ner, 2 Blac. Rep. 1251. 1296.
4. T. R. 402. but see 2 Rol.
Rep. 295. Comb. 452. 2
ShoAv. 481. Bunb. 8. 1 Bur.
p 1 East, 338.
1 Parker, 28 1. and see Gilb.
Excheq. 167, &c.
r 2 Str. 749. Gilb. Rep.
222. Bunb. 164. S. C.
s Append. Chap. XLI. C
79.
OF EXECUTION. 949
ferior nature, is postponed to an immediate ex-
tent ^
On a statute-merchant, the first process after
it was forfeited, and certified into chancery, was
a writ of capias si iaicus, directed to the sheriff,
commanding him to take the body of the conusor,
if a layman, to satisfy the debf". And if the she-
riff" returned upon this writ, that the party was
dead, or not found in his bailiwick, a writ issued
to extend the lands", which might be made re-
turnable in either bench; and the sheriff" might
thereupon deliver the lands, &:c. to the conusee,
upon a reasonable extent, without the delay or
charge of a liber-ate^''. If the conusor was a clerk%
the sheriff" was directed to levy the debt of his
moveable goods and chattels''.
On a statute -staple, or recognisance in nature of
a statute -staple, if the conusor cannot be found
within the staple, i^or his goods to the value of
the debt, the first process, after the certificate
under seal in chancery, is a writ in nature of an
extent, to take body, lands and goods, all in one
writ; in which respect it is preferable to the sta-
tute-merchant, as being a much speedier remedy y.
This
t Parker, 281, 2. w p. N. B. 130. A. 1 Vent.
«i F. N. B. 130. Append. 41.
Chap. XLI. §81. xF. N. B. 131. Append.
'^F. N. B. 130. A. Ap- Chap. XLI. § 83.
pend. Chap. XLI. § 82. y 2 Bac. Abr. 334. Ap-
pend. Chap. XLI. § 84.
950 OF EXECUTION.
This writ is returnable in chancery ; and the same
sort of proceedings are had under it, for extending
the lands, &c. as upon an elegit^: But the sherift'
after the extent, cannot deliver the lands, &C. to
the conusee, but must seize them into the king's
hands ; and in order to get possession of them, the
conusee must sue out a liberate^ which is a writ is-
suing out of chancery, reciting the former writ and
return, and commanding the sheriff to deliver to
the conusee all the lands, tenements and chattels,
by him taken into the king's hands, if the conusee
will have them, by the extent and appraisement
made thereof, until he shall be satisfied his debt'.
Upon this writ, the sheriff cannot turn the tertenant
out of possession, as upon an habere facias posses-
sionem ; but is only to deliver the legal possession,
as upon an elegit^ and in order to obtain the actual
possession, the conusee must proceed by eject-
ment''.
By the common law, after a full and perfect exe-
cution had by extent, returned and entered of re-
cord, the conusee could have no re-extent on the
effects of the conusor, (because there was once
satisfaction given to the creditor on record,) though
the lands had been recovered from him, before he
had levied the debt out of them''. But by the sta-
tute
^- ./fn^f, 939. *> 1 Vent. 41. Ante^ 941.
ap. N. B. 132. I Lutw. c Co. Lit. 290. a. Bac. Abr.
429. Append. Chap. XLI. § tit. Execution^ (B. 6).
85.
or EXECUTION. 951
tute 32 Hen. VIII. c. 5. it is provided, that " if
after any lands, tenements or hereditaments, be
had and deHvered in execution, upon a just and
lawful title, wherewithal the said lands, &c. were
liable, tied and bound, at such time as they were
delivered and taken into execution, shall be re-
covered, divested, taken, or evicted out of or from
the possession of any such person and persons as
have and hold the same in execution, without any
fraud, deceit, covin, collusion, or other default of
the said tenant or tenants by execution, before
such time as the said tenants by execution, their
executors or assigns, shall have fully levied their
whole debt and damages, for the which the said
.lands, &c. were delivered and taken in execution ;
then every such recoveror, obligee, and recognizee,
shall have a scire facias out of the same court,
from whence the former execution did proceed,
against such person or persons as the former exe-
cution was pursued, their heirs, executors or as-
signs, to have execution of other lands, &c. liable
to be taken in execution, for the residue of the debt
or damages."
This statute, by a favourable construction, was
extended to the executors, administrators and as-
signs of the recoveror*^, &c.; and to executions
issuing out of any court, where the record is re-
moved by writ of error, and affirmed ^• But the
statute, we have seen, did not extend to a partial
e\'iction.
^ Co. Lit. 290. a. '> III, ibid.
952 OF ExfictrtioN,
eviction^. Bj a subsequent statute ^ however,
which wais made for supplying some defects in the
statute 23 Hen. VIII. c. 6. it is enacted, that " in
case it shall, at any time or times, before or after
the filing or returning of any liberate or liberates^
sued out on any extent or extents, upon a re-
cognisance in the nature of a statute -staple,
be made appear to the court of Chancery, that
sufficient has not been extended and levied,
or sufficiently extended and levied, to sa-
tisfy such recognisance ; or that any omission,
error or mistake has happened, in making, suing
out, executing or returning any of the said
writs, or any process thereupon; or it should
happen, that any lands, tenements or heredita-
ments shall be evicted from any person or per-
sons, who shall have extended the same, by
virtue of any such writ or process as aforesaid ;
that then, and in every such case, the said court
of Chancer}' shall and may award one or more
re-extent or re-extents, for the satisfying the
same as aforesaid, and that writs of liberate or
liberates may be sued out thereupon."
We have before seen, that in debt against an heir,
on the obligation of his ancestor, the judgment for
the plaintiff is general^ for the debt and damages,
or special^ directing them to be levied of the lands
descended^ On a general judgment, the execu-
tion
i Antey9i2. ^^ Jnce, 854. and see
2 8 Geo. I. c. 25. § 4. 2 Wms. Saund. 7. (4.)
OF EXECUTION. 953
tion .may be general also, against the defendant,
his goods and chattels, or a moiety of his lands,
by capias ad satisfaciendum^ fieri facias^ or elegit ':
But where the judgment is special, the execution
is so likewise, by a writ in nature of an extent, to
levy the debt and damages, of all the lands de-
scended''. And it seems that on a general judg-
ment, although the plaintiff may have execution
by elegit of a moiety of all the heir's lands, yet may
he also at his election surmise, that the heir hath
certain lands by descent, and pray to have execu-
tion of the whole of them ' : For if the plaintiff had
not this election, he might be a loser by the gene-
ral writ of elegit, upon which he could have only
a moiety in execution, inasmuch as the heir might
not have any other lands except those descended '".
A capias ad satisfaciendum lay, at common law,
in actions of trespass vi et aj-jnis only, but has since
been given in other actions, by a variety of sta-
tutes " : And, where the defendant is at large, it
commands the sheriff, or other officer to whom it
is
i 2 Rol. Abr. 71. and see i Append. Chap. XLI. § 87.
Vin. Abr. til. Heir, (D). Bac. °' 2 Rol. Abr. 72. Bac. Abr.
Ahr. tit. Heir ix.jinces(or,(ti). tit. Heir he. Ancestor, (H). 3
2 Wms. Saund. 7. (4.) Wms. Saund. 7. ('4.)
k Id. ibid. Off. Brev. 83, 4. " Hob. 56.
Append. Chap. XLI. § 86.
Vol. II. 2P
954 OF EXECUTION.
is directed, to take the defendant, and him safely
keep, so that he may have his body in court on the
return-day, to satisfy the plaintiff". Where the de-
fendant is already in custody, there is no occasion
for this writ; but if the plaintiff would proceed
against his body, he must charge him in execution,
as directed in a former chapter p.
This writ lies after judgment, in every instance
where the defendant was subject to a capias before ''f
and it may be taken out against the defendant,
sued by a wrong name, if he has omitted to take
advantage of the misnomer "" : but it lies not
against Peers, or members of the House of Com-
mons, except upon a statute- merchant or sta-
tute-staple ' ; nor against executors or admini-
strators, unless a devastavit be returned ^ An
infant seems to be liable to this process " ; and it
may be taken out against bail, without any pre-
vious Jieri Jacias, or return of nulla bona''. In an
action against husband and wife, they may both
betaken in execution; and the wife shall not be
discharged, unless it appear that there is fraud and
collusion,.
" Append. Chap. XLI. § '^ 1 Cromp. 345.
iBf &c. t 3 Blac. Com. 414.
p Chap. XVI. "i 2 Str. 1 2 1 7. and see I Bos.
q 3 Co. 12. 5c Pul. 480.
f 2 Str. 1218. ^ 2 ou. 822. 1139.
II
OF EXECUTION. 955
icoUusion, between the plaintiff and her husband,
to keep her in prison '''.
In point of form, the capias ad satisfaciendum
must pursue the judgment : therefore on a judg-
ment against several defendants, it must include
them all ''. And if part of the demand has been al-
ready levied \ii\ditr2ijie7'i facias, the capias ad satis -
Jaciendum is only for the residue ^. This writ must
be signed, as well as sealed ^ ; and it must be tested
and returnable in term-time, in like manner as the
fieri facias *. It was formerly necessary that there
should h^ fifteen days at least between the teste and
return oit\\G fieri facias and capias ad satisfaciendum,
by original: but as that occasioned great delay, it
was enacted by the statute 13 Car. II. stat. 2. c. 2.
^ 6. that " in all actions of debt, and other per-
*' sonal actions, and also in all actions oi ejectmetit,
*' depending by original writ in the courts of King's
" Bench and Common Pleas, after any judgment
" obtained therein, there need not be fifteen days
" between the teste and return of any writ oi fieri
*■'■ facias or capias ad satisfaciendum; nor shall
** the want thereof be assigned for error." This
statute however does not extend to any writ of
oapias ad satisfaciendum^ whereon a writ of exigent
after
^»2Str. 1167. 1237. iWils. v Append. Chap. XLI. §
149. Say. Rep. 149. jinte, 101, &c.
174. ^ R. E. 1659.
« 6 T. R. 526, 7. > Ante, 913, 14,
956 OF EXECUTION.
after judgment is to be awarded; nor to any capias
ad satisfaciendum against the defendant, in order to
make his bail Hable. For the purpose of charging
the bail, there ought to be eight days between the
teste and return by bill^, and fifteen by original'^;
but a capias ad satisfaciendum returnable out of
term, is not void as against the bail, though it may
be set aside by the principal on motion, for irregu-
larity ^ : and there may be an intervening term,
between the. teste and return of this writ ^ If the
capias ad satisfaciendum be informal, it may be
amended, in like manner as the feri facias^.
The common returns to a writ of capias ad satis-
faciendum are, that the sheriff has taken the de-
fendant, whose body he has ready ^; or that the de-
fendant is not found in his bailiwick ^. On the
latter return, the plaintiff may sue out an alias
capias' into the same, or a testatum^ into a differ-
ent county ; or he may have a non omittas capias
ad satisfaciendum into either': And as the defendant
can only be once taken, it seems there may be se-
veral
b 2 Salk. 602. % Append. Chap. XLI. §
6 13 Car. II. c. 2. §6. 92.
^ 2 Bur. 1188. ^ Id. § 93.
e 2 Salk. 700. 2 Ld. Raym. i Id. § 95.
775. S. C. k Id. § 97, &c.
f 2 Blac. Rep. 836. 2 T. R. 1 Id. § 96.
757. 5T.H.577. 6 T. R. 450.
OF EXECUTION. 957
veral writs running against him, at the same time,
in different counties : Or, instead of suing out an
alias or testatum^ the plaintiff may, if the action was
commenced by original writ, proceed at once to
outlaw the defendant, by suing out an exigi facias "",
and process of outlawry.
The defendant being taken upon a capias ad sa-
tisfaciendum^ if he do not satisfy the plaintiff, ei-
ther remains in custody of the sheriff, who may
carry him immediately to the county-gaol", oris
removed bv habeas corpus to the king's-bench pri-
son. In either case, the execution is considered,
quoad him, as a satisfaction of the debt °: There-
fore a judgment creditor, who has taken his debtor
in execution, cannot afterwards sue out a com-
mission of bankrupt against him upon the same
debt ''. And if the plaintiff, having the defendant
in execution, consent to his discharge, though it
be on terms which are not afterwards complied
with '*, or upon giving a fresh security, which af-
terwards becomes ineffectual "■, the plaintiff cannot
resort to the judgment again, or charge the defen-
dant's
■» Append. Chap. XLI. § a commission of bankrupt
106. having since been sued out
n 4 T. R. 555. Ante, 203. against him by the plaintiff.
o Hob. 59. 1 Bos. & Pul. 302.
P 8 T. R. 123. But the ^ 4 Bur. 2482. 6 T. R
court has no power to dis- 526, 7. 7 T. R. 420.
charge the defendant out of »" i f. R. 556.
execution, on the ground of
958 OF EXECUTION.
dant's person in execution ; even though he were
discharged the first time by the plaintiff's consent,
upon an express undertaking that he should be li-
able to be taken in execution again, if he failed to
comply with the terms agreed on *. But a capias
ad satisfaciendum is no actual satisfaction, so as to
bar the plaintiff from taking out execution against
other persons, liable to the same debt or damages ';
though if the plaintiff consent to discharge one of
several defendants, taken on a joint capias ad sa-
tisfaciendum, he cannot afterwards retake him, or
take any of the other defendants ".
It was formerly hoiden, that if a person taken
on a capias ad satisfaciendum died in execution, the
plaintiff had no further remedy; because he had
determined his choice, by this kind of execution,
which, affecting a man's liberty, is esteemed the
highest and most rigid in the law ^. But now, by
the statute 21 Jac. I. c. 24. reciting, that foras-
much as daily experience doth manifest, that divers
persons of sufficiency in real and personal estate,
minding to deceive others of their just debts, for
which they stood charged in execution, have obsti-
nately and wilfully chosen rather to live and die in
prison, than to make any satisfaction according to
their
s 2 East, 243, Barnes, 205. " 6 T. R. 525.
^ Hob. 59. ^ Hob. 52. 6 T. R. 52'6.
or EXECUTION. 959
their abilities ; to prevent which deceit, and for
the avoiding of such doubts and questions, it is
declared, explained and enacted, " that the par-
" ty or parties at whose suit, or to whom any per-
" son shall stand charged in execution, for any
" debt or damages recovered, his or their execu-
" tors or administrators, may, after the death of
*' the person so charged and dying in execution,
" lawfully sue forth and have new execution, against
" the lands and tenements, goods and chattels, or
" any of them, of the person so deceased, in such
*' manner and form, to all intents and purposes,
" as he or they or any of them might have had, by
" the laws and statutes of this realm, if such per-
" son so deceased had never been taken or charged
** in execution."
" Provided, that this act shall not extend to
" give liberty to any person or persons, their exe-
" cutors or administrators, at whose suit or suits
" any such party shall be and die in execution, to
" have or take any new execution, against any
'* lands, tenements or hereditaments of such party
" so dying in execution, which shall at any time
*' after the said judgment or judgments, be by him
" sold bondjide^ for the payment of any of his credi-
•' tors, and the money which shall be paid for the
*' lands so sold, either paid or secured to be paid to
•' anyof his creditors, with their privity and consent,
''in
960 OF EXECUTION.
■^^ in discharge of his or their due debts, or of some
^' part thereof."
If a party taken on a capias ad satisfaciendum
escape or be rescued, though the sheriff is hereby-
liable, because he ought to have taken the posse
comitatus^ yet the plaintiff may sue out a new
execution ; and shall not be compelled to take his
remedy against the sheriff, who may be dead or
insolvent "' : And if the defendant escape from the
king's-bench or fleet prison, the plaintiff, on appli-
cation to a judge, may have an escape- warrant, in
order to retake him, which shall be in force
throughout England ".
By the common law, a prisoner in execution
was to be kept in salvd et arcta ciistodid^ till he sa-
tisfied the plaintiff. The rigor of imprisonment
however is now considerably abated, by his being
allowed, on giving security to the marshal, the be-
nefit of the rules of the king's-bench prison, or of
living within certain limits '' out of its walls. This
benefit may be ha.d by one in custody on an excom-
municato capiendo "■; but it is never granted to a pri-
soner
^^ 2 Bac. Abr. 240. 244. R. 583.R.E. 35 Geo. III. 6
,355. T. R. 305. R. T. 36 Geo. III.
X Stat. 1 Ann. c. 6. 6 T. R. 778.
y For the limits o{ the. rides ^ 1 Str. 413. and for the
of the king's-bench prison, nature of this writ, see 7 T.
see R. E. 30 Geo. III. 3 T. R. 153.
I
OF EXECUTION. 961
sbner in execution on a criminal account ^, or for a
contempt ^.
A prisoner also, whether he be detained in cus-
tody on mesne process or in execution, may on pe-
tition to the court, have day-rides allowed him, or
the liberty of going out of the prison or its rules,
for transacting his business, in term-time. The pe-
tition for this purpose must be signed by the pri-
soner, before he goes at large ^ ; and formerly, a
day-rule might have been obtained in this court^
every day during the term, as is still the practice in
the Common Pleas : But this indulgence having
been abused, a rule of court was made, that " no
" prisoner in the king's-bench prison, or within
" the rules thereof, shall have, or be entitled to
" have, day-rules, above three days in each term ;
" and every such prisoner, having a day-rule, shall
*' return within the walls or rules of the said pri-
" son, at or before nine o'clock in the evening of
*' the day for which such rule shall be granted '*.'*
Still however it was open to a prisoner, on a special
case, to obtain from the court more days than were
allowed by the rule ; as where his attendance was
wanted by a master in chancery : but when that
happened, they would restrain this indulgence to
such days as the master should certify to be ne-
cessary.
» 1 Str. 196. 2 Str. 845. d R. £. 30 Geo. III. 3 T.
»»2Str. 817. R. 584.
c 1 Str. 503.
Vol. II. 2Q
06^2 OP EXECUTION.
cessary ''. And now, by a late rule of court ^, " not-.
*' withstanding the general rule before mentioned.,
" if any prisoner in the king's-bench prison shall
" state by affidavit any special cause, to the satis-
" faction of the court, for having an additional day-
" rule or day-rules, beyond those allowed by the
" aforesaid rule, such additional rule or rules shall
'' be granted accordingly, for any day or days en-
" suing such application."
Besides these indulgences, acts are occasionally
passed, for the relief of insolvent debtors ^ : And
towards the end of the last reign, some lasting pro-
visions were made for their relief against impri-
sonment, by the statute 32 Geo. II. c. 28. § 13.
which (originating in the House of Lords) is called
the Lords'* act. By this statute, " if any person
" shall be charged in execution, for any sum of
" money not exceeding 100/. (since extended to
i200/. by the 26 Geo. III. c. 44. and to 300/. by
the 33 Geo. III. c. 5. which is made perpetual by the
39 Geo. III. c. 50.) " and shall be minded to deli-
*' ver up to his creditors, all his estate and effects,
*' in satisfaction of his debts, he may, in order to
*' entitle
e Per Lord Kenyon, E. 36 366. 399. 7 T. R. 305. 8
Geo. III. T. R. 49. 1 Bos. & Pu!
fR.M. 37 Geo. III. 7 T. 477 : on the insolvent act of
R. 82. 37 Geo. III. G. 112. see 8
e For determinations on T. R. 424 : and on the last
the insolvent act of 34 Geo. III. insolvent act, of 4 1 Geo. Ill
c. 69. see 6 T. R. 28.76. c. 70. see 2 East, 148. 257.
OF EXECUTION. 963
" entitle himself to the benefit of the above acts,
*' before the end of the first term next after he shall
*' be charged in execution, exhibit a petition to any
" court of law, from whence the process issued,
" upon which he was taken and charged in execu-
" tion; or to the court into which he shall be re-
" moved by habeas corpus, or charged in custody;
" certifying the cause of his imprisonment, and
" setting forth a just and true account of all the
" real and personal estate, which he, or any per-
" sons in trust for him, was or were entitled to, at
" the time of his so petitioning, and also at the time
** of his first imprisonment, and of all incumbrances
*' and charges (if any) aifecting the same, andlike-
" wise a just and true account of all securities,
*' deeds, evidences, writings, &c. concerning the
*' same, and the names and places of abode of the
*' witnesses."
The humane provisions of the Lords' act v/ere
-jendered as beneficial as possible, by the liberality
of the judges, who construed it to extend to pri-
soners in custody upon an attach?ne?;^, for the non-
performance of an award'', or non-payment of
costs ', &.C ; which construction has been recogni-
sed by the statute 33 Geo. III. c. 5. § 4. whereby,
after
1 Bos. 8c Pul
h 1 T. R. 266.
T. R. 756.
i Cowp. 136, 1 T. R.
336.
)6, 4T. R. .317. 809. 7
964 OF EXECUTION.
q^fter reciting that persons are often committed on
attachments, for not paying money awarded, under
submissions to arbitration by or made rules of court,
and likewise for not paying costs, duly and regu-
larly taxed and allowed, after proper demands made
for that purpose, and also upon writs of excommu-
nicato capiendo, or other process for or grounded
on the non-payment of costs or expences, in causes
or proceedings in ecclesiastical courts ; it is decla-
red and enacted, that *' all such persons are and
*' shall be entitled to the benefit of this act, and
" subject to the same terms and conditions as are
" therein expressed and declared, with respect to
" prisoners for debt only." And it is no objection
to a prisoner being discharged under the Lords'
act, that his creditor is dead"". But the defendant
in a qui tarn action is not entitled to the benefit of
that act ^ And a prisoner who is taken in execution
for more than 300/. and afterwards reduces his debt
below that sum, is not entitled to be discharged
under the above act, in the next term after he has
so reduced hi » debt, unless it be also the next term
after he was taken in execution"".
The act requires, that the petition should be ex-
hibited before the end of the first term next after
the prisoner is charged in execution. But where a
defendant taken on a capias ad satisjaciendiim es-
caped,
^ 1 Bos. & Pul. 336. Rep. 372. S. C.
13 Bur. 1322. 1 Blac. «" 1 Bos. & Pul. 423.
OF EXECUTION. 965
caped, and was retaken and committed to the cus-
tody of the marshal in a subsequent term, the court
held, that he might apply to be discharged, under
the Lords' act, in the term following ". And by the
statute 33 Geo. III. c. 5. § 5. "where any debtor
" shall have neglected to take the benefit of the
*' acts, within the time limited, and shall make it
" appear to the court out of which the execution
'' issued, that such neglect arose from ignorance
" or mistake, such debtor shall then be entitled to
*' take the benefit of the acts, as if he had taken the
" same, within the time so limited as aforesaid."
Upon which statute it has been holden, thatapri-
soner is entitled to the benefit of the acts, who has
been prevented from applying for it in due time,
by the misconduct of his agent °.
When a prisoner intends to take the benefit of
the Lords' act, he must give to or leave for every
creditor at whose suit he is in execution, or his exe-
cutors or administrators, at his or their usual place
of abode, or in case they cannot be met with, to or
for his or their attorney or agent last employed in the
action, a noticein writing'', signed with his proper
name or mark, importing that he intends to petition
the court, and setting forth a true copy of the ac-
count or schedule •* he intends to deliver in ; which
notice
^ 4.T. R. 367. 107.
" Id. 231. «!/£/.§ lOS.
I' Append. Chap. XLI. §
966 or EXECUTION.
notice must be given Jourteen days at least before
the petition is presented ■" : though the judges in
one case held, in favour of Hberty, that under cir-
cumstances, the day of giving the notice might be
reckoned as one % An affidavit is annexed to the
notice and schedule, made by some person who
saw the defendant sign them ^ : And an affidavit of
the due service of the notice and schedule is also
to be made, on unstamped paper, and sworn before
a judge in town, or commissioner in the country ".
After the expiration of the time specified in the
notice, the petition "^ is to be exhibited, with a cer-
tificate annexed, or copy of causes in which the
defendant stands charged, obtained from the gaol-
er, or from the clerk of the papers, if the defendant
be in custody of the marshal : If he be in any other
custody, there must be an affidavit^ of seeing the
gaoler sign the certificate '■''. The petition, certifi-
cate and affidavit of service of the notice being left
with the clerk of the rules, he will draw up a rule
for bringing the prisoner into court, and summon-
ing the creditors to appear, personally or by attor-
ney, at some certain day to be therein specified '' ; a
cop3^
' 32 Geo. II. c. 28. § 13. » Id. § 1 10.
s 4 Bur. 2525 ^/rf. §111.
^ Append. Cliap. XLI. § «' /j. § 1 12.
i09. X 32 Geo. II. c. 28. § 13.
OF EXECUTION. 967
copy of which rule should be served on each cre-
ditor, and also on the gaoler, and an affidavit made
of such service ^ . But it is ordered, that insolvent
debtors petitioning under the Lords' act, and sub-
sequent acts for their further relief, shall be brought
into court, during term-time, upon Mondays and
Thursdays^ and upon no other days ^.
When the prisoner is charged in execution above
twenty miles from Westminster-hall^ or the court
out of which the execution issued, the rule re-
quires him to be brought to the next assizes, and
that the creditors be summoned to appear there ;
and a copy of such rule is to be served on every
creditor, his executors or administrators, or left at
his or their dwelling house, or usual place of abode^
or with his or their attorney, fourteen days at least
before the holding of such assizes *.
On bringing up tlie prisoner, the court or judge
of assize are, in a summary way, to examine into
the matter of the petition ; and after being swoni to
the truth of his schedule, if no opposition be made,
he is discharged of course, upon executing an as-
signment and conveyance of his estate and effects,
for the benefit of his creditors ; which is done by a
short indorsement on the back of the petition''.
The prisoner may be compelled, under the Lords'
act,
y Append. Chap. XLI. § 113. » 32 Geo. II. c. 28. % 15.
'H.H. 37 Geo. III. ^ Id.% 13.
k
968 OF £XECUTIOMr.
act, to include in his schedule, every thing that he
can sell for his own benefit "^ : And the place of a
life -guardsman being constantly sold, the court
will compel a prisoner who holds such a place to
sell it, and insert the value in his schedule, before
they permit him to take the benefit of the act **.
But the half- pay of an officer is not the subject of
sale ; and therefore a prisoner cannot be compelled
to include it in his schedule ^
If the persons, at whose suit the prisoner is in
execution, are not satisfied with the truth of his
oath, and cither personally or by attorney desire
further time, the court may remand him ; and direct
the parties to appear on some other day, to be ap-
pointed by the court, within the first week of the
next term at farthest \ or sooner if the court shall
think fit^: And the creditors may file mterrogato-
ries for his examination, before he is admitted to
take the benefit of the act ^. In such case it is a
rule, that the creditor do file his interrogatories with
the clerk of the rules, and that the clerk of the
rules do thereupon draw up a rule for the debtor's
examination before the master, to whom he shall
also deliver the original interrogatories ; and that
the
3T. R. 681. f 32 Geo. II. c. 28. § 13.
^ Id. ibid. Cadwallader Jones's s 3 Bur. 1393.
case, M. 14 Geo. III. ^ 33 Geo. III. c. 5. § 5.
«3T. R. 68!.
OF EXECUTION. 969
the debtor having been previously sworn in open
court for the purpose, the master shall proceed to*
take down in writing the examination of the deb-
tor, in answer to the said interrogatories ; and the
same being signed by the debtor, shall be afterwards
filed by the master, with the clerk of the rules ;
and the said interrogatories and examination shall
be produced by the clerk of the rules and read,
when the debtor shall on a subsequent day be
brought up by rule for that purpose \
All objections to the insufficiency of the sche-
dule, in point ofjorm, must be made the first time
the prisoner is brought up ''. And if, at such se-
cond day, the creditor shall make default, or shall
appear and be unable to discover any estate or ef-
fects omitted in the account, the court shall imme-
diately order the prisonerto be discharged, upon his
executing an assignment and conveyance of his
estate and effects ; unless the creditor insist upon
his being detained in prison, and sh^ll agree by
writing, signed with his name or mark, (or, if he
be out of England, under the hand of his attor-
ney,) to pay and allow the prisoner weekly, a sum
not exceeding 3^. 6^. or if more creditors than one
insist on his detention, not exceeding 2s. a- week
each^ to be paid on Monday in ever)" week, so
lone
i R. E. 36 Geo. III. i 37 Geo, III. c. 85. § 3, 4.
k 32 Geo. II. c. 28. § 13.
Vol. II. 2P
970 OF EXECUTION.
long as the prisoner shall continue in execution ;
and in every such case, the prisoner shall be re-
manded '". But if failure be made in payment of
the said weekly sums, the prisoner, upon applica-
tion to the court in term-time, or in vacation to a
judge, may, by order of the court or judge, be
discharged out of custody, on executing an as-
signment and conveyance of his estate and ef-
fects".
The note or security for payment of the prison-
er's allowance ", must be signed by the plaintiff, if
in England^ or otherwise by his attorney ; it not
being sufficient for the attorney to sign the note, if
his client can be met with ^ : And if the note be
not signed by the plaintiff in open court, it is the
practice to require an affidavit with the note, shew-
ing that it was duly signed "•. Where there are seve-
ral plaintiffs, the note must be signed by all of them '^,
or if they are partners, by one on behalf of himself
and the others " ; a note signed by one of several
lessors of the plaintiff in ejectment '', or by one of
several
"^ 32 Geo. II. c. 28. § 13. 114.
If a plaintiff hold the defend- p Imp. K. B. 646. and see 1
ant in execution in several ac- Bos. & Pul. 337.
tions, he need not give more i Edwards v. Carter, M. 36
than one note for 3s. bd. a Geo. III.
week. Jones v. Cox, M. 36 •• 7 T. R. 156. 8 T. R. 325.
Geo. III. s 8 T. R. 25.
n 32 Geo. II. c. 28. § 13. t 7 T. R. 156.
° Append. Chap. XLI. §
OF EXECUTION. 971
several executors ", without mentioning the others,
not being deemed sufficient. The payment is to
be made, by the act, every Monday \ and the note
must be drawn up accordingly ^'. It was determined
in one case '", that such a note ought to be stamp-
ed : But the judges, upon a conference, afterwards
held a stamp to be unnecessary ''. If the payment
be not made in time, the prisoner has a right to his
discharge ^ : And where it was not made before
ten o'clock at night of the day on which it became
due, it was holden that the defendant's right to his
discharge was not waived, by the turn-key on the
felon's side accepting it after that time''. The
mode of obtaining a prisoner's discharge for non-
payment of the allowance, is by application to the
court in term-time, or to a judge in vacation : And
a judge's order for a prisoner's discharge under
the Lord's act, made out of term, we have seen "
is final.
It sometimes happens, that persons who are
prisoners in execution in gaol for debt or damages,
will
.«» 8 T. R. 325. Id. ibid.
V Blakemore v. Ronea, M. * 7 T. R. 530.
36 G. III. K. B. 3Bos. &Pul. ^ Id. 670. 1 Bos. & Pul.271.
184. e. P. And in this latter y Say. Rep. 103. Doug. 67.
court,it seems that such a note and see 7 T. R. 157.
ought to contain an express '^ 5 T. R. 36. and see 7 T.
promise to pay the allowance R. 156.
on a Monday., although it be » Jntt\ 464.
ttated on th*t day of the week.
972 OF £XEC0TION.
will rather spend their substance in prison, than
discover and deliver up the same, towards satis-
fying- their creditors their just debts, or so much
thereof as such substance will extend to pay : To
remedy ^vhich, there are compulsive clauses in the
Lord's act *", by which it is enacted, that " if any
*' prisoner who shall be committed or charged in
" execution, in any prison or gaol, for any debt
" or damages not exceeding one hundred pounds.
" besides costs," (since extended to 200/. by the
26 Geo. III. c. 44. ^ 2.) " shall not within three
" months next after every such prisoner shall be
" committed or charged in execution, make satis-
" faction to his or her creditor or creditors, who
'' shall charge any such prisoner in execution, for
" such debt, damages and costs; then such cre-
" ditor or creditors may require every such priso-
" ner (on giving twenty days notice'^ in writing to
" him or her, of such creditors design,) to give in
" to the court at law, from which the writ or pro-
" cess issued, on which any such prisoner shall be
" charged in execution, or into the court in the
" prison of which any such prisoner shall be remo-
" ved by habeas corpus ^ or shall remain or be
" charged in execution, within the first seven days
'' of the term which shall next ensue the expiration
'' of the said twenty days, in respect to any priso
" ner
i> 32 Geo. II. c. 28. § 16, 17. - Append. Chap. XLI. § 1 15
OF EXECUTION. 97S
" ner charged in any prison belonging to the
'^ courts in Westminster -hall; and at the second
" court which shall be held by any other court of
" record, after the expiration of the said twenty
" days, in respect to any prisoner charged in any
" prison belonging to such other court; and where
" any such prisoner shall be charged in execution
" in any county gaol, or other gaol or prison, above
" the space of twenty miles distant from fVestmin-
" ster-hall, or the court or courts out of which the
'^ writ or process issued, on which any such priso-
" ner is or shall be charged in execution, then to
" give in upon oath, at the assizes or great sessions,
'* and on the crown- side thereof, which shall be
" held for the county or place in the prison of
*' which any such prisoner shall be, next after the
•' expiration of twenty days from the time of gi-
" vingany such notice; a true account in writing,
*' to be signed with the proper name or mark of
" every such prisoner, of all the real and personal
*' estate of such prisoner, and of all incumbrances
" affecting the same, to the best of his or her
" knowledge and belief, in order that the estate
*' and effects of such prisoner may be divested
*' out of him or her, and may by the court, judge
" or judges, justice or justices aforesaid, be or-
*' dered to be assigned and conveyed in manner
*' and for the purposes thereinafter declared'*."
" And
<i Append Chap. XLI. % U7.
974 OF EXECUTION.
" And every such creditor or creditors shall also
" give twenty days' like notice in writing, of such
" his her or their intention to require any such
*' prisoner to be brought up as aforesaid, to all
" and every other creditor and creditors of every
" such prisoner, if any, at whose suit any such
*' prisoner shall be detained or charged in custody*,
" if such other creditor or creditors can be met
'' with; and if not, then to the attornies last em-
" ployed in the actions or suits, in which any such
" prisoner shall be so detained or charged irt custo-
" dy, by any such other creditor or creditors: And
" shall likewise give a like notice in writing to the
" sheriff or sheriffs, gaoler or keeper of the gaol or
" prison, in which any such prisoner shall be de-
" tained in custody^, of such his or her intention
^^ to have any such prisoner so brought up, and to
" require such sheriff, &c. to bring up every such
'■' prisoneraccordingly; and every such notice which
" shall be so given to any such sheriff, &c. shall be
" so given, twenty days at least before the time
" appointed for any such prisoner to be so brought
" up; and thereupon every such sheriff, &c. shall
" at the costs of such creditor or creditors, cause
" every such prisoner to be brought, as by such
" notice
c Append. Chap. XLI. § intention to have the prisonep
116. brought up, should require
f The notice to the sheriff him to bring up the prisoner
or gaoler, of the plaintiff's accordingly.
OF EXECUTION. 975
*' notice in writing shall be required, to such court,
" assizes or great sessions as aforesaid, together
" with a copy of causes of his or her detainer
" there."
" And that every prisoner who, in pursuance of
" this act, shall be brought up to any such court,
" assizes or great sessions as aforesaid, shall, on
^* proof being there first made of such notices as
" aforesaid having been given, deliver in there tin
*' open court, upon oath, within the time therein-
" before for that purpose prescribed, a full true and
" just account, disclosure and discovery in writing,
" of the whole of his or her real and personal estate,
** and of all books, papers, writings and securities,
" relating thereto, and of all incumbrances then af-
" fecting the same, and the respective times when
" made, to the best of his or herknowledge and be-
" lief, (other than and except the necessary Avearing
" apparel and bedding of such prisoner, and his or
" her family, and the necessary tools or instruments
" of his or her respective trade or calling, not ex-
" ceedingthe value of ten pounds in the whole,)
" which account shall be subscribed with the pro-
*' per name or mark of the prisoner, who shall so
" deliver in the same."
" And on the delivering in of any such account,
" the estate and effects of ever)- such prisoner shall
" be by him or her assigned and conveyed, by a
" short
976 «F EXECUTION.
'^ short indorsement on the back of every suchac-
" count, to such person or persons as the court,
*' judge or judges, justice or justices, in which or
*' to whom any such account shall be so given in,
•' shall order or direct,, in trust, and for the bene-
" fit of the creditor or creditors, who shall have
" required any such prisoner to be brought up as
'' aforesaid, and of such other creditor or creditors
-' (if any) of ever)^ such prisoner, at whose suit any
" such prisoner shall be charged in custody or exe-
" cution, and who shall, by any memorandum or
" writing, to be signed by such creditor or credi-
" tors, before any such conveyance or assignment
'' shall be made, consent to any such prisoner's
" being discharged out of gaol or prison, at his
^' her or their suit, and agree to accept a propor-
^ tionable dividend of such prisoner's estate andef-
*' fects, with the creditor or creditors who shall
" have required any such prisoner to be brought
*' up; and if there shall be no other creditor or
•' creditors, or there being any such, if he she or
'' they shall not agree in writing to discharge such
" prisoner, and accept such proportionable dividend
*•' as aforesaid, then in trust for the creditor or cre-
" ditorsonly, who shall require any suchprisonerto
' be brought up for the purpose aforesaid : And
" by such assignment and conveyance as aforesaid,
" all the prisoner's estate and effects shall be vested
•■' in the creditor or creditors, to whom the same
" shall
OF EXECUTION. 977
" shall be assigned and conveyed in trust as afore-
*' said; and if any overplus shall remain of any
" such prisoner's estate, after payment of the debt,
*' or damages and costs, which shall be due to any
" creditor or creditors, at whose suit any such
" prisoner shall, in pursuance of this act, be dis-
*' charged out of gaol or prison, and all reasonable
" charges expended in or by means of getting in
'' such estate or effects, the same shall be paid to
*' such prisoner, his or her executors, administra-
" tors or assigns."
" And upon every such discovery, assignment
" and conveyance being made and executed, to
*' the satisfaction of the court, judge or judges of
" assize, justice or justices of great session, before
" whom the same shall be made, every such prisoner
*' shall, by such court, &c. be discharged and set
" at liberty, in the actions and charges, at the
" suit of the creditor or creditors, who shall re-
*' quire him or her to be so brought up, and also
*' in the actions and charges of every other credi-
" tor, who shall sign such consent as aforesaid, for
" his or her discharge, with the same benefit of
" making use of such discharge, as is therein be-
" fore provided for prisoners seeking, and who
*' shall obtain their discharge, under the provisions
" contained in the former part of this act: And
'* no stamp shall be necessary on any such assign-
VoL. II. 2S ment
.,
978 OF EXECUTION.
" ment and conveyance, or any rule or order which
*' shall be made for any such discharge."
" But notwithstanding any discharge obtained
*' by virtue of that act, for the person of any
" prisoner, the judgment obtained against every
*' such prisoner shall continue and remain in force,
*' and execution may at any time be taken out
" thereon, against the lands, tenements, rents, or
'' hereditaments, goods or chattels of any such
" prisoner, other than and except the necessar}'
'* wearing apparel and bedding for himself and fa-
'* mily, and the necessary tools for the use of his
*' trade or occupation, not exceeding 10/. in value
" in the whole s, as if he had never been before
*' arrested, taken in execution, and released out of
*' prison^." And it has been adjudged, that the
effects acquired by an insolvent, after his discharge
under the 34 Geo. III. c. 69. are liable to be taken
in execution, for a debt due before '.
For executing a writ o^ fieri facias or capias ad
satisfizciendumy the sheriff" is entitled, by the statute
29 £liz. c. 4. to twelve-pence for every QOs. when
the sum exceedeth not a hundred pounds, and six-
pence for every 20*. above that sum, that he shall
levy or take the body in execution for; which is
called
s In the compulsive clause, restriction in point of value
§ 17. the exception is gene- '^32 Geo. II. c. 28. §20.
ral, and extends to all wear- i 6 T. R. 366.
ing apparel} &c. without any
OF EXECUTION. 979
caWedhis poundage*. But by the statute 3 Geo. I,
c. 15. ^17. poundage upon a capias ad satisfacien-
dum shall not be demanded or taken, for any greater
sum than the real debt bona Jide due, and marked
on the back of the writ. And by the same statute ^^
the sheriff* is entitled, upon executing a writ ol"
elegit^ to have for poundage twelve-pence for every
20^. of the yearly value of the lands, whereof pos-
session is given, where the whole exceedeth not the
yearly value of a hundred pounds, and six -pence
only for every 20*. per ami. above that value.
By the statute 23 Hen. VIII. c. 6. \ 8. there was
due to his majesty, a fee of one half-penny in the
pound, according to the value or sum entered
into and contained in every recognisance in nature
of a statute staple, taken in pursuance of the said
statute, to be paid on sealing the first process on
every such recognisance. But by the 8 Geo. I. c.
25. § 3. "the prosecutor of every such recognisance
shall, at the time of suing out the first process, or
a writ of extent thereon, deliver in to the officer
who shall make out such process or extent, a note
in writing under his hand, testifying the sum or
value of the damages thereby intended to be ex-
tended, or levied thereon; which sum or value
the said officer shall insert in the said writ, to be
only extended or levied thereon, and no more;
and
* JWf p.911. k (; ]6.
980 OF EXECUTION.
and that the said poundage of one half-penny, pay-
able on all process as aforesaid, shall be taken and
paid only for every pound, according to the said
sum or value so inserted, and intended to be
extended and levied as aforesaid, and not other-
wise : And that no sheriff of any county shall take
for the extent and liberate^ 2Ci\&hab€re facias posses-
sionem or seisinam on the real estate, and levy on
the personal estate, by virtue of such extent, any
more than the same fees as are appointed by the 3
Geo. I. c. 15. for executing a writ of elegit^ and
habere facias possessionem or seisinam; under the
like penalties and forfeitures, and to be in like
manner recovered, against every sheriff or person
therein offending, as are mentioned and appointed
in and by the same act."
If a sheriff levy under 2ijieri facias^ he is entitled
to poundage, though the parties compromise, be-
fore he sells any of the defendant's goods •; and he
is entitled thereto, upon a capias ad satisfaciendum y
though the defendant go to prison, without satis-
fying the plaintiff". But it seems that he is not en-
titled to poundage on executing a writ of attach-
ment, for non-payment of money". For the
poundage he is entitled to, the sheriff may main-
tain an action of debt on the statute °, or he may
retain
1 5 T. R. 470. "2 East, 411.
'"4 Burr. 1981.1mp. -S/^er. ° I Salk. 209. 2,:i3. 2 Ld/
145, Raym. 1212. S.C.
I
OF EXECUTION. 981
vetain it out of the sum levied ; and if the sheriff
take more than he is entitled to, he is liable to an
action for treble damages, at the suit of the party
grieved p, and shall forfeit 40/. to the king and the
informer *i.
When the judgment is satisfied, by any of the
above species of execution or otherwise, the de-
fendant has a right to call on the plaintiff for a
warrant ' or authority, directed to some attorney of
the court wherein the judgment is recovered, au-
thorising such attorney to enter up satisfaction on
the judgment-roll; which being obtained, a satis-
faction-piece * is made out, on a slip of unstampt
parchment, in the form of a bail-piece, and taken,
with the warrant of attorney, to the clerk of the
judgments, who will make an entry thereof in his
book of remembrances, and deliver it over to the
clerk of the treasury, who enters the same on the
roll ^
p 2 T. R.
148.
118.
1 29 Eliz.
c. 4.
^Id.
§
119.
^ Append
. Chap.
XLI.
§
^ Id.
§
120,
CHAT
[ 982 ]
CHAPTER XLIL
Of Scire Facias.
A SCIRE FA CIAS is a judicial writ % founded
on some matter of record, as a recognisance*
judgment, &c. on which it lies to obtain execu-
tion ^, or for other purposes % as to repeal letters-
patent ^^ hear errors ^, &c.
But though a scire facias be a judicial writ, yet
because the defendant may plead thereto, it is
considered in law as an action ^: And therefore
a release of all actions is a good bar to a sci7-e fa-
cias 5 : And for the same reason, there must be a
new
a Though a scire facias be
properly 2i judicial writ, yet be-
ing the foundation of an action,
it is sometimes considered as
in nature of an original. Skin.
682. Comb. 455. S. C. and see
10 Mod. 258. In Littleton^ §
505. it is called a writ of exe-
cution; and in one case, it was
said to be in nature of a decla-
ration. 1 Sid. 406.
b Lit. § 505. Co. Lit. 290.
b. 291. a. F. N. B. 267. and
see 3 Lev. 220.
c Bac. Abr. tit. Scire facias,
A. B.
d Id. C. 3. And for a parti-
cular account of the writ of
scire facias to repeal letters pa-
tent, when it lies, and in what
court, the form of the writ,
and the proceedings, trial and
judgmentthereon, see 2 Wms.
Saund. 12. fi. q. and see id. 6
{\).adfintm. 7 T. R. 367.
e Post. Chap. XLIIL
f Co. Lit. 290. b. 291. a. 2
Wils. 251. 2Blac.Rep. 1227.
2 T. R. 46.
g Co. Lit. 290. b. Comb.
445. Skin. 682. S. C. 2 Ld.
Ravm. 1048. 2 Wils. 251.
OF SCIRE FACIAS. 983
new warrant, to authorise the appearance of the
plaintiff's attorney ''; and there is no occasion for
II rule to change the attorney in the former suit'.
So where a judgment was entered for securing the
payment of an annuity, before the 17 Geo. III. c.
26. which requires, that " before any execution
" shall be sued out, or action brought on any such
" judgment, a memorial of the consideration, &c.
"shall be enrolled in chancery;" this court set
aside a scire facias^ &c. issued after the act, to re-
vive the judgment, for want of such a memorial ^'.
Upon a recognisance, a scire facias is an origi-
nal proceeding ; but upon a judgment, it is only
a continuation of the former suit; and therefore
where the defendant's attorney, pending an action,
agreed that no writ of error should be brought,
and afterwards the defendant died, between the
execution and return of the writ of inquiry, and
thereupon a ^c?re/acm issued against his executors,
to shew cause why the damages assessed upon the
writ of inquiry, should not be recovered against
them, upon which they brought a writ of error ;
the court held, that the executors were bound by
the agreement of their testator's attorney, and ac-
cordingly
h Cro. Eliz. 177. 2 Ld. ^ Say. Rep. 218. and sec
Raym. 1048. 1252, 3. 1 Salk. 7 T. R. 337. 2 Bos. Sc PuK
89. 2 Salk. 603. S. C. and see 357.
2 Bos. & Pul. 357. {b). k 1 T. R. 267, 8.
984 OF SCIRE FACIAS.
cordingly ordered him to nonpros the writ of error ^:
For this is not a new action, but a continuation of
the old one; it is only a scire facias to revive the
former judgment; and as the testator himself, if
he had lived, could not have brought a writ of
error, so neither can his executors ^
A recognisance is an obligation of record, which
a man enters into before some court of record or
magistrate duly authorised "", with condition to do
some particular act : And it is either at common
law, or by statute. A recognisance at common law
is either to the king, or a subject; and may be
acknowledged before any one of the judges out of
term, and in any part of England, and may be en-
tered on record, as well out of as in term : So
the chancellor or keeper may take recognisances
and award execution, or hold plea of scire facias
and audita querela in chancery to avoid execution,
&c. as the case requires, on all recognisances ta-
ken in that court ". By the custom of the city of
LondoUy the mayor and aldermen, or the mayor
singly, may take recognisances ; for the custom is
not only reasonable in itself, but as all other cus-
toms of the city, has been confirmed by act of par-
liament °. And the king, by special commission,
may appoint any person to take recognisances
from one man to another; and such recognisances,
duly
M T. R. 388. " Bac. Abr. tit. Execution,
<n Bro. Abr. tit. Recogni- (B).
sance, 24. ^ Id. ibid.
OF SCIRE FACIAS. 985
duly certified with the commission into Chancery,
are binding: And though the commission be so
particular, as to mention only a recognisance to be
taken from A. to B. yet the commissioners have a
general power to take a recognisance from any
other person p.
But recognisances at common law are not per-
fect records, till they are enrolled in some court of
record '^; for since the law allowed any one judge
out of court, and in any part of the kingdom, to
take these recognisances, which are the highest
security of the common law, it was very necessary
they should be enrolled, to perpetuate the contract,
and by that means secure the creditor his just debt,
which must have been very precarious and uncer-
tain, while the security lay in the hands of a pri-
vate person, who might either through carelessness
mislay, or by ill practices be prevailed upon to
suppress it^
Recognisances by statute are either founded on
a statute -merchant or statute -staple; or are in na-
ture of a statute -staple, by the 23 Hen. VIII. c. 6.
A statute -77iei'chajit is a bond of record, acknow-
ledged before the mayor of ZiO?ido?i, or chief- war-
den of some other city or town, or other discreet
men for that purpose chosen and sworn, or before
one
p Bac. Abr, tit. Execution, •■ Bac. Abr. tit. Execution.^
(B). F. N. B. 267. (B). F.N. B. 267.
1 But see 2 Vern. 750.
Vol. II. 2 T
986 OF SCIRE FACIAS.
one of the clerks of the statute-merchant, pursuant
to the statute of Acton Burnel, (11 Edw. I. ) en-
forced and amended by the statute 13 Edw. I. stat.
3. de mercatorihus. This recognisance is to be en-
tered by the clerk on a roll, which must be double,
one part to remain with the mayor or chief- warden,
and the other with the clerk, who shall write with
his own hand a bill obligatory, to which a seal of
the debtor shall be affixed, together with the seal
of the king, for that purpose appointed ^
The statute -j^cp/d" is a bond of record, acknow-
ledged before the mayor of the staple, in the pre-
sence of the constables of the staple, or one of
them, pursuant to the statute 27 Edw. III. stat. 2.
c. 9. To this end, the statute requires that there
shall be a seal ordained, which shall remain in the
custody of the mayor of the staple, under the seals
of the constables; and that all obligations made
on such recognisances, shall be sealed therewith \
This security was only designed for the merchants
of the staple, and for debts on the sale of mer-
chandises
s Bac. Abr. tit. Execution, be entered in the office of the
(B). clerk of recognisances taken
t/rf. ibid. By the stat. 27 according to the 23 Hen. VIII.
Eliz. c. 4. § 7, 8. the whole c. 6. who is to enter the same
tenor and contents of all sta- statutes in a book provided for
tutes-merchant and statutes- that purpose; otherwise they
staple shall, within six months are made void, as against sub-
after they are acknowledged, sequent purchasers.
I
OF SCIRE FACIAS. 987
ehandises brought thither; yet in process of time,
others began to apply it to their own purposes, and
the mayor and constable would take recognisances
from strangers, surmising that they were made for
the payment of money, for merchandises brought
-to the staple : To prevent this mischief, the parli*
ament in the 23 Hen. VIII. reduced the statute-
staple to its former limits, and laid a penalty of 40/.
on the mayor and constables, who should extend
the benefit of the statute to any but those of the
staple. But though the statute 23 Hen. VIII. c. 6.
deprived them of this benefit, yet it framed a new
sort of security, to be used by all persons, known
by the name of a recognisance on the 23 Hen.
VIII. or a recognisance in the nature of a statute-
staple, so called, because this act limits and ap-
points the same process, execution, and advan-
tage in every particular, as is provided for the sta-
tute-staple ^
A recognisance therefore in nature of a statute-
staple, as the words of the act declare, is the same
with the former, only acknowledged before other
persons; for as the statute runs, the chief justices
of the King's Bench and Common Pleas, and each
of them, or in their absence out of term, the mayor
of the staple at Westminster and the recorder of
London jointly together, shall have power to take
recognisances
« Bac. Abr. tit. Execution^ (B).
988 OF SCIRE FACIAS.
recognisances for payment of debts, in the form
set down in the statute ''. In this, as in the former
cases, the king appoints a seal to attest the con-
tract, and each of the justices shall have the keep-
ing of one such seal, and the mayor and recorder
another of the like print and fashion ; and every
obligation made and acknowledged before either
of the justices, or the mayor and recorder, must be
sealed with the seal of the conusor, the king's seal,
and the seal of the chief-justice, or seals of the
mayor and recorder before whom it is taken, who
are likewise obliged to subscribe their names'''.
Besides this, a clerk was appointed to make, write
and enrol all obligations thus acknowledged, and
at the request of the conusee, his executors or ad-
mininstrators, to certify such obligations into chan-
cery, under his seal "".
The statute-merchant having the seal of the co-
nusor, besides the king's seal, the conusee may
waive the execution given by the statute 13 Edw.
I. and use it as an obligation, by bringing an ac-
tion of debt thereon: So, for the same reason, may
the conusee on the 23 Hen. VIII. c. 6. the recog-
nisance having the seal of the conusor to it. But
it
V Stat. 23 Hen. VIII. c. 6. cognisances, and certifying
§ 2, them into chancery, see the
w Id. § 3. statutes 23 Hen. VIII. c 6.
X /(/. § 4, 5; and for the §4,5. 8 Geo. I. c.25. § 1, 2,
mode of enrolling these re-
OF SCIRE FACIAS. 989
it is otherwise of a statute -staple, because the king's
seal only is affixed thereto, without that of the par-
ty, which is absolutely necessary in all obligations
at common law y.
These several securities bind the land at common
law, from the time they are entered into ^ : There-
fore if a man be conusee of a statute, and the
debtor, before execution sued, alien by fine, and
five years pass, yet the conusee may still sue out
execution \ But a creditor by statute of J. S. who
becomes bankrupt before the statute is sued and
executed, shall come in only pro rata, though there
were lands bound by the statute ''. And by the sta-
tute of frauds and perjuries % "the day of the
*' month and year of the enrolment of recogni-
" sauces shall be set down in the margent of the
" roll, where the said recognisances are enrolled;
" and no recognisance shall bind any lands, tene-
" ments or hereditaments, in the hands of any pur-
*' chaser bondjide, and for valuable consideration,
*' but from the time of such enrolment." It is also
declared
y Bac. Abr. tit. Execution, z 2 Bac. Abr. 363. 3 Co. 14.
(B); and for a fuller account ^ 1 Chan. Cas. 268. 1 Mod.
of these securities, the differ- 217.
ences between them, and the ^ 1 P. Wms. 92.
mode of proceeding thereon, c 29 Car. II. c. 3. § 18. ex-
see Bac. Abr. \\\., Exccutmi, tended to JFa/e* and the coun-
(B). Com. Dig. tit. Statute- ties/m/af//?^, by the 8 G. I. c
Merchant. 25. § 6.
990 OF SCIRE FACIAS.
declared by the register-acts"^ that " no statute or
" recognisance (other than such as shall be entered
" into, in the name and upon the proper account
" of his majesty,) shall affect or bind any manors,
" lands, tenements or hereditaments, in Middlesex
" or Yorkshire, but only from the time that a me-
" morial of such statute or recognisance shall be
'' entered at the register-office, in such manner as
" therein is directed."
With regard to the time of suing out execution
on these several securities, a distinction is to be
made between recognisances at common law, and
statutes- merchant, &c. ; for upon the former, if the
conusee did not take out execution, within a year
after the day of payment assigned in the recogni-
sance, he was obliged to commence the suit again
by original; the law presuming the debt might
have been paid, if he did not sue execution
within a year after the money became payable :
But this was altered by the statute Westm, 2. (13
Edw. I.) Stat. 1. c. 45. which gives the conusee a
scire facias to revive the judgment, and put it in
execution, if the conusor cannot stay it, by plead-
ing such matters as the law judges sufficient for
that purpose, such as a release, &c. But the
conusee of a statute -merchant, &:c. may at any time
sue
<! Ante, 862
OF SCIRE FACIAS. 991
sue execution, without the delay or charge of a
scire facias ^.
Another distinction is to be made between re-
cognisances at common law, and by statute ; for
on the first, if the conusee die before execution
sued, his executor shall not sue it, even within
the year, without bringing a scire facias against the
conusor : The reason is, because the law presumes
that the debt might have been paid to the testa-
tor, and therefore will not suffer the debtor to be
molested, unless it appear that he hath omitted to
perform the judgment; and for that purpose a
scire facias must be brought by the executor, for
the alteration of the person altereth a process at
common law : But this tending to delay, the scire
facias was taken away on recognisances created by
statute-law, by the several acts of parliament
which introduced them ; and therefore, upon the
death of the conusee of a statute -merchant, &c. his
executors may come into Chancery, and upon pro-
ducing the testament and the statute, have execu-
tion without a scire facias, as the testator himself
might have had ^.
But the recognisance which will here principally
claim our attention, is the recognisance entered
into by the bail in an action, or upon a writ of
error,
« Bac. Abr. tit. ExecuttQii, f Id. ibid.
B. tit. Scire facias, C.
992 OF SCIRE FACIAS.
error, either alone or jointly with the principal.
Thtjbrm of the recognisance of bail in an action
differs, accordingly as the action is by bill or origi-
nal: In actions by bill, the undertaking of the bail
is general, that if the defendant be condemned in
the action, they will pay the condemnation-money,
if the defendant shall not pay the same, or render
himself to the prison of the marshal^. By original,
their recognisance is taken in a penalty or sum cer-
tain, being double the amount of the sum sworn
to, upon the like condition^. Therefore, if the
defendant be condemned in the action, and do not
pay the condemnation-money, or render himself
to the prison of the marshal, in due time, (or if
there be several defendants, and they do not all
render themselves^,) the recognisance is forfeited,
and the bail are liable to be sued thereon, unless
discharged by some of the means stated in a pre-
ceding chapter ' : And a cognovit by the principal,
without notice to the bail, does not discharge
them''. But if the principal be not condemned,
or (which is tantamount) be not condemned in
the same action, as where the plaintiff declares
against the defendant, for a different cause of action
from what is expressed in the process ', or affidavit
to
§ J7itey 220. k 5 T. R. 277. Jnte, 244.
H 2 Lev. 192. 1 Vent. 315. ' I Str. 202. 2H.Blac.2rs.
i Chap. XI. p. 242, &c.
OF SCIRE FACIAS. 993
to hold to ball'", or by original, in a different county
from that where the action is brought", his bail are
discharged: And they are also discharged, where
the cause is referred to arbitration, unless it be
agreed on the reference, that a verdict shall be ta-
ken, and judgment entered for the plaintiff's se-
curity ^
Before any proceedings can be liad against the
bail in the action, upon their recognisance, a capias
ad satisfaciendum must be sued out against the
principal, and returned non est inventus : For it is
clearly settled, that no scire facias or action of debt
lies against the bail in the action, until a non est inven-
tus be returned, upon a capias ad satisfaciendum
against the principal ; for the bail are not bound to
render the principal, till they know, by the plain-
tiff's suing out this writ, that he means to proceed
against the person of the defendant ^ : And if the
principal be already in custody of the sheriff, in
another action, the sheriff will not be justified in
returning non est inventus"^. But so as the co/>i(ars
ad satisfaciendum be regularly sued out and return-
ed, it may be filed at any time ; the filing being
mere
« 6 T. R. 363. 7 T. R. 80. 139. Cro. Car. 48 1 . Sty. Rep.
n3 Lev. 235. R. E. 2 Geo. 281. 288. 323. Lutw. 1273. I
II. a. Barnes, 116. Ld. Raym. 156. 10 Mod. 267.
o Ante, 761, 2. R, E. 5 Geo. II. Rei,-. 3. a.
i> Poph. 186. W. Jon. 29. q Per. Cur. M. 42 G. III.
Vol. 11. 2U
994 OF SCIRE FACIAS.
"mere matter of form "^ : And if the principal die af-
ter the return of the capias ad satisfaciendum^ and
before the return be filed, the bail are fixed, and
the court will not stay the filing of the return, in
favour of the bail ^
The capias ad satisfaciendian against the princi-
pal, should be directed to the sheriff of the county
where the original action was laid : And where the
proceedings are by bill, there must be eight days,
or if by original fifteen days, between the teste and
return of the writ ^ ; the latter being a case except-
ed out of the statute 13 Car. II. stat. 2. c. 2. § 7:
And in order to charge the bail, it must lie four
days exclusive in the sheriif's ofiice"; and be made
returnable, like the former proceedings, on a day
certain, or general return-day.
Upon the return of jion est ijiventus to the capias
■ad satisfaciendum^ the recognisance being forfeit-
ed, the plaintiff may proceed thereon against the
bail in the action, and against the principal also, if
he joined in the recognisance, by action of debt or
scire facias : And the proceeding in either case
may be commenced on the return-day of the capias
ad satisfaciendum against the principal ''. In debt,
the plaintiff may bring one action against all the
persons
«• 1 Lev. 225. 3 Bur. 1360. Reg. 3. a.
1 Blac. Rep 393. S. C. "2 Salk. 599. R. E. 5 Geo
» 6 T. R. 284. II. Reg. 3. a.
t 2 Salk. 602. 2 Ld. Raym. ^ 8 T. R. 628. and see 2 Ld.
\ 177. S. C. R. E. 5 Geo. II. Raym. 1567. 2 Str. 866. S. C
OF SCIRE PACIAS. 995
persons bound in the recognisance, or several ac«
tions against each of them : But one scire facias
seems in all cases to be sufficient; for the recog-
nisance being joint and several, it is holden that
the execution may be several, though the scire fa-
cias was joint "'.
In an action oidebt upon a recognisance of bail,
the defendant cannot be arrested; for the suffi-
ciency of the bail must have been proved or ad-
mitted, previous to their being allowed; and if the
defendant were arrested in such an action, there
would be bail in ijifiiiitum ''. And where a writ is
sued out upon a recognisance of bail, it is necessa-
ry, by rule of court, that after the words " in a plea
*' of trespass ^^"^ there should be inserted the follow-
ing clause, " and also to a bill of the said plaintiff,
" agaijist the said defendant, in a plea of debt upon
'* recognisance, according to the custom of our court
*' before us to be exhibited ;'''* otherwise the defen-
dant, or his attorney, is not bound to accept a de-
claration in debt upon such recognisance ^.
We have already seen ^, what time the bail are
allowed to render their principal, when they are
proceeded against in an action of debt upon their
recognisance. We have also seen ^, that on staying
proceedings
'*' Bac. Abr. tit. Execution, y R. E. 15 Geo. II. Ante,
G. 1 Lev. 225. 1 Sid. 339, 84.
S.C. ^Jnte,237.
^ Ante, 152, 3. » Ante, 483.
996 OF SCIRE FACIAS.
proceedings, in an action of debt on recognisance,
the bail must pay the costs in that, as well as the
debt and costs in the original action, though they
apply \\dthin the time allowed them for surrender-
ing the principal: And on that account, it is in
general more adviseable to proceed against the
bail, by action of debt on the recognisance, than
by sch'e facias^ wherein no costs are allowed, un-
less they appear and plead, or join in demurrer ^.
There is also a further reason for proceeding by ac-
tion of debt on the recognisance, namely, that in
such an action, the plaintiff may recover damages
for the detention of the debt, which he cannot do
in scire facias^. But as a copy of the process must
be served in debt, if the bail be out of the way, or
the plaintiff do not mean to give them notice, he
must proceed by scire facias on the recognisance.
A scire facias against the bail in the action, is-
sues out of the court in which the action was de-
pending ; and begins by stating the recognisance,
after which the judgment is set forth, prout patet
per recordum : It then states, that the principal has
not paid the debt or damages recovered, nor ren-
dered himself to the prison of the marshal ^ ; and
concludes by requiring the sheriff to make known
to
b Stat. 8 & 9 W. III. c. 11. ^ 2 Salk. 439. 3 Salk. 320.
§3.3 Bos. 8c Pul. 14. 2 Ld. Raym. 804, S. C,
cS Bur. 179 L
II
OF SCIRE F AC I AS. 997
lo the bail, that they be before the khig at TFest-
minster, on a day certain, (by bill, or by origlnalon
a general return-day, wheresoever, &c.)to shew if
they have or know of any thing to say for them-
selves, why the plaintiff ought not to have his ex-
ecution against them, for the debt or damages
aforesaid, (by bill, or by original for the sum ac-
knowledged,) according to the force, form and ef-
fect of the recognisance, if it sail seem expedient
for him so to do; and further, he ^. On a recogni-
sance of bail, the scii'e facias against the principal
is in hac parte, or that he do and receive what the
court shall consider of him in this behalf; but
against the bail it is in ed parte, or that they do
and receive what the court shall consider of them
in that behalf^. And where a scire facias, was
brought against three persons as bail, upon a re-
cognisance acknowledged by them and the princi-
pal jointly, the writ abated; because this being
founded on a record, the plaintiif ought to set forth
the cause of the variance from the record, as that
one was dead ^ : But if an action be brought upon
a joint bond, against three only, where there arc
four or five obligors, there the defendant ought to
shew that it was made by them and others in full
life,
e Append. Chap. XLII. § 599. S. C. but see 1 Ld.
2, £cc. Raym. 532. semb. contra.
f 1 Ld. Raym. 393. 2 Salk. k Aleyn, 2 1 .
998 OF SCIRE FACIAS.
life, not named in the writ ; for otherwise the court
will not intend that the bond was sealed ^
By the recognisance of bail in error, which will
be more fully treated of in the next chapter, the
plaintiff or plaintiffs in the writ of error become
bound, with two sufficient sureties, in double the
sum adjudged to be recovered by the former judg-
ment, to prosecute the writ of error with effect, and
also to satisfy and pay, if the judgment be affirm-
ed, as well the debt or damages and costs adjudged
upon the former judgment, as also all costs and
damages to be awarded for the delay of execution '.
Therefore if the writ of error be nonprossed or dis-
continued, or the judgment affirmed, the defendant
in error may proceed against the bail upon their
recognisance, by action of debt or scire facias at
his election. And as a render in this case will not
excuse the bail '', there is no occasion to sue out
a capias ad satisfaciendum, in order to proceed
against them.
The scire facias against bail in error should be
brought in the same court where the recognisance
was taken, unless it was taken in the Common
Pleas, and then the scire facias may be brought
either in that court, or in the King's-Bench, to
which the record is supposed to be removed '.
This
'f^AleynjSl. XLII.5 6, 7. 28, 29.
» Stat. 3 Jac. I.e. 8. 13 Car. ^ r. m. 5 W; & M. (b).
II. Stat. 2. c. 2. § 9. 16 8c ir > Lil. Ent. 643. 3 Mod.
Car. II c. 8. § 3. 19 Geo. III. 251. 1 Wils. 98.
c, 70. and see Append, Chap.
OF SCIRE FACIAS. 999
This writ is made out by the clerk of the errors'";
and on a recognisance taken in the King's-Bench,
it recites not only the recognisance, but the condi-
tion of it, and the affirmance of the judgment", &c.
but on a recognisance taken in the Common Pleas,
the scire Jacias merely states the recognisance, and
the non-payment of the sum acknowledged to be
due " ; for in that court, the condition of the recog-
nisance in error is not incorporated, as it is in a re-
cognisance of bail on a capias ad responde7idu?7i^ but
it is subscribed by way of defeasance ; so that the
recognisance and condition are two distinct re-
cords ^ : And besides, if the condition were stated,
it would be necessary to state also the affirmance of
the judgment, which might occasion difficulty, if
the bail were to appear and plead mil tiel record of
the judgment of affirmance, which remains in the
King's-Bench.
A scire facias upon a judgment is either by or
against the same or different parties. As between
the same parties, it will be proper to treat of a
scire facias ^ in the following cases ; first, after a
year and a day ; secondly, after a writ of error
brought in the King's-Bench, to compel the plain-
tiff in error to assign errors; thirdly, where judg-
ment
n^ Barnes, 93. o /gT. § 5.
" Append. Chap. XLII. ^6 r l^arnes. QS. :s%9^
1000 OF SCIRE I-ACIA3.
ment is given in covenant or annuity^ or in debt oil
bond conditioned for the payment of an annuity,
or of money by instalments, or for the performance
ofcovcna?its, and damages arise, or money becomes
payable, on the same securit)^ after the judgment;
and fourthly, when the debt or damages recovered
are to be levied out oi future eft'ects, or, in the case
of an executor or administrator, de bonis propriis^
And first, of the scire facias after a year and a day.
At common law, in rt'a/ actions, \vhere land was
recovered, the demandant after the year, might have
taken out a scire facias to revive the judgment, be-
cause the judgment being particular ^z^oac^ the land,
with a certain description, the law required that
the execution of that judgment should be entered
upon the roll, that it might be seen, whether exe-
cution was delivered of the same thing of which
judgment was given; and therefore if there was no
execution appearing on the roll, a scire facias issu-
ed, to shew cause why execution should not be
awarded '^ : Besides, in real actions, if execution
was not sued within the year, a scij'e facias lay for
the land, because no other advantage could be ta-
ken of the judgment, as an action of debt could not
be maintained thereon ^
But if the plaintiff, after he had obtained judgment
in n personal v.ct'ion, had lain by, and taken no pro-
cess of execution within the year, he was put to a
new
'1 Bac. Abr. lit. Exenition. H. '" 3 Salk. 321.
OF SCIRE FACIAS. 1001
new original upon his judgment, and no scire
facias was issuable ; because there was not a judg-
ment for any pailicular thing in the personal action,
with which the execution could be compared:
Therefore after a reasonable time, which was a year
.and a day, it was presumed to be executed, and the
law allowed him no scire facias^ to shew cause why .
there should not be execution; but if the party had
exceeded his time, he was put to his action on the
judgment, and the defendant was obliged to shew
how the debt, of which the judgment was evidence,
was discharged ^
To remedy this, and make the modes of pro-
ceeding more uniform in both actions, the statute
of Westm. 2. (13 Edw. I.) stat. 1. c. 45. gave a
scire facias to the plaintiff in a personal action to
revive the judgment, where he had omitted to sue
execution within the year after judgment was ob-
tained ^ The words of the act are " that those
" things which are found enrolled before them that
" have the record, or contained in fines, whether
" they be contracts, covenants, obligations, ser-
" vices or customs, recognisances, or other things
*' whatsoever enrolled, to which the King's court
*' may lawfully give effect, from henceforth shall
" have such force, that hereafter it shall not be
" necessary
sBac. Abr. tit. Execution, S. C.
H. but see 2 Salk. 600. 7 t Bac Abr. tit. jE,xccution,
Mod. 64. 2 Ld. Raym. 806. II.
Vol. IT. "^ 2X
I0(>2 OF SCIRE FACIAS.
*^' necessary to implead upon them: But when the
" plaintiff comes to the king's court, if the recog-
'' nisance or fine levied be recent, that is to say^
" levied within the year, he shall forthwith have
" a writ of execution of the same recognisance.
" And if perchance the recognisance were made,
"or fine levied, of a longer time past, the sheriff
" shall be commanded, that he make known to the
*' party of whom the complaint is made, that he
" be before the justices at a certain day, to shew if
" he has any thing to say, why such matters en-
" rolled, or contained in the fine, ought not to have
"' execution : And if he do not come at the day, or
" come and can say nothing why execution ought
" not to be made, the sheriff shall be commanded
" to cause the thing enrolled, or contained in the
•' fine, to be executed." But notwithstanding this
statute, the plaintiff may still proceed, if he think
proper, by action of debt on the judgment.
It hath been doubted, whetljer a scire facias lay^
to revive a judgment in ejectment, after a year and
a day, either by the common law, or by force of the
above statute ; for at common law, this was look-
ed upon as a personal action, and it was thought
that the statute extended only to such personal ac-
tions, in which debt or damages were recovered,
and not to provide a remedy in this case, since at
the time of making the act, the possession was not
recovered
OF SCIRE FACIAS. 1003
specovered in this action : But it seems now to be
settled, and is confirmed by daily practice, that a
^?re facias lies on a judgment in ejectment; for
the words of the act are, '* whether they be con-
*' tracts, &c, or other things whatsoever enrolled,"
which comprehend all judgments, and give the like
remedy on them by scire facias^ as the demandant
had on a judgment inarealactionatcommonlaw^
The reason why the plaintiff is put to his scire
facias after the year, is because where he lies by
so long after judgment, it shall be presumed that
he hath released the execution, and therefore
the defendant shall not be disturbed, without be-,
ing called upon, and having an opportunity in
court of pleading the release, or shewing cause, if
he can, why the execution should not go ". And
it is said, that if the plaintiff delay executing a
writ of inquiry, till a year after interlocutory judg-
ment, he cannot do it after, without a scire facias ^^
The year must be computed from the day of sign-
ing judgment " ; and is to be reckoned by calendar
months, and not by terms ^. And if the plaintifi
sue a scire facias within a year after the judgment^
he
" Bac. Abr. tit. Executioiij ^ 2 Inst. 470.
H. The sczVeycczas in this case ^^ 12 Mod. 500, scd quaere^
should go against the terte- whethei' a term's notice is not
nants, as well as tlie defendant, in this case sufficient ?
1 Salk. 258. and see Carth. 2. ^ Barnes, 197.
2 Salk. 600. 1 Ld. Raym. 669. y l Str. 301 . and see 6 Mod.
3 Salk. 319. S.C. Run. Eject. 14,
426, &c.
1004 OF SCIRE FACIAS.
he cannot afterwards have a capias within the year,
till h§ hath a new judgment in the scire facias '\
But in the case of the king, there need not be
any scire facias after the year^, for nullum tempus
occurrit regi. And though the general rule be, that
the plaintiff cannot in other cases take out execu-
tion after the year, without a scire facias, yet this
rule must be understood with the following restric-
tions.
Where si feri facias or capias ad satisfaciendum
is taken out within the year, and not executed, a
new writ of execution may be sued out at any
time afterwards, without a scire facias; provided
the first writ be returned, and continuances en-
tered from the time of issuing it '': which continu-
ances may be entered after the issuing of the second
writ, unless a rule be made upon motion, for the
proceedings to remain in statu quo. And if judg-
iiienL be given, and no execution sued out within
the year, yet the plaintiff may afterwards enter an
award of an elegit on the roll of the judgment, as
of the same term with the judgment, and thence
Contimit'itdiOwnhyvicecomes non misit breve: And
though the court at first inclined to think, that an
elegit ought to be actually taken out within the
year, yet being informed by the clerks of the
court,
z Rol. Abr. 900. 1 Keb. 159. S. C Carth. 283.
a 2 Salk. 603. Comb. 232. S. C. 3 Salk. 321.
bCo. Lit. 290. b. 2 Inst. 1 Str. 100.
471. 2 Leon. 77 ^Q. 1 Sid. 59.
i\
OF SCIRE FACIAS. 1005'
court, that it had been the practice for many years
to make such an entry, &c. it was said to'be the
law of the court, and they ordered the execution
to standi
If the plaintiff have judgment with a cesset
execution or stay of execution for a year, he may
after the year, take out execution without a scire
facias S because the delay is by consent of parties,
and in favour of the defendant ; and the indulgence
of the plaintiff ought not to be turned to his preju-
dice : But if the plaintiff do not take out execution,
within a year after the cesset executio is deter-
mined, he must sue out a scire facias ^
So if the defendant bring a writ of error ^ and
thereby hinder the plaintiff from taking out
execution within the year, and the judgment be
affirmed, the plaintiff in error nonsuited, or the
writ of error abated or discontinued, the de-
fendant in error may proceed to execution after
the year, without a scire facias^ \ because the
writ of error was a supersedeas to, the execution,
and the defendant in error must wait till it be
determined. It has even been holden, in one
case s, that if a writ of error be brought after the
year
c Carth. 283. Comb. 232. Eliz. 416. Carth. 237. 6 Mod.
S. C. 288. 1 6alk. 322. S. C, 3 Salk,
d 6 Mod. 288. 1 Salk. 322. 321.
S. C. g 1 Rol. Rep. 104. Cro. Jap-.
e 2 Cromp. 102. 364. S. C.
f 2 Inst. 471. 5 Co. 88. Cro.
1006 OF SCIRE PACIAS.
year is elapsed, and thereupon the former judg-
ment is affirmed, such affirmance will revive the
former judgment, and enable the party to take out
execution, w'lthoutascirejacias: But from this case
it seems, that if the plaintiff in error be nonsuited,
or the writ of error discontinued, there can be no
execution of the former judgment, without a scire
facias.
It was formerly holden, that if the plaintiff were
restrained by injunction out of Chancery for
a year, he could not take out execution after-
wards, without a scire facias^; because the
courts of law do not take notice of Chancery in-
junctions, as they do of writs of error: besides,
it might be no breach of the injunction, to take
out execution within the year, and continue it
dowii by vicecomes non misit breve, which cannot
be done in the case of a writ of error. But in a
modern case ', where it appeared that the whole
delay had arisen on the part of the defendant, by
bills in chancery for injunctions, and by obtain-
ing time for payment, &c. the court were unani-
mous, that this rule, of reviving a judgment
above a year old by scire facias, before execu-
tion, which was intended to prevent a surprise
upon the defendant, ought not to be taken ad-
vantage of by one, who \\ as so far from being
surprised
'i 6 Mod. 288. 1 Salk. 322. i 2 Bur. 660.
S. C. 1 Str. 301. S. P.
I
OF SCIRE FACIAS. 1007
surprised by the delay, that he himself had been
trying all manner of methods, whereby he might
delay the plaintiff; and therefore they discharged
the rule for setting aside the execution, with
costs.
The scire facias upon a judgment must be sued
out of the same court where the judgment was
given, if the record remains there *"; or if it has
been removed, out of the court where the record
is. If the judgment be under seven years old, the
plaintiff, we have seen ', may sue out a scire faciaSy
as a matter of course, without any rule or motion:
If it be above seven years, but under ten^ he can-
not have a scire facias, without a side-bar rule °\ If
it be above ten years old, but under twenty, there
must be a motion under counsel's hand, supported
by an affidavit that the judgment is unsatisfied " :
And if the judgment be of more than twenty years
standing, there must be a rule to shew cause, on a
similar affidavit °.
A scire facias upon a judgment, after a year and
a day, states the judgment recovered by the plain-
tiff, which differs according to the nature of the
action, and the court in which it was obtained :
And when a scire facias is brought on a judgment
in
k Comb. Dig. tit. Pleader, 3 Sty. P. R. 495 .
L. 3. " Id. ibid.
i.//ra/f, 439.(o). ° Blakeleyv. Fi?icent,T. 35
m 2 Salk. 598. Comb. 356. Geo. III. JVa(ers v. Hales, E.
S. C. and see CI. Inst. 159. 37 Geo. III.
1008 OF SCIRE FACIAS.
in the King's Bench, the plaintiff must shew where
the court of King's Bench was held, because that
court is ambulatory : But if it be brought upon a
judgment in the Common Pleas, it is otherwise,
because that court is confined to a certain place ^
It then states, that although judgment be thereup-
on given, yet execution of the debt or damages still
remains to be made ; and commands the sheriff,
to make known to the defendant, that he be in
court at the return-day, to shew why the plaintiff
ought not to have execution against him for the
debt or damages, according to the form and effect
of the recovery, &c ''. This being a judicial writ,
must pursue the nature of the judgment: therefore
if a joint judgment be obtained against two, the
scire facias must be against both"^: And in setting
out the judgment, if there be a material variance,
it will be fatal, on mil tiel record.
Where a scire facias is brought in the King's
Bench, upon a judgment of an inferior court, it
must appear in the writ itself, how the judgment
came into the King's-Bench, whether by certio-
rari^ or by writ of error, because the execution is
different ' ; for if it came in by certiorari^ the scire
facias ought to shew the particular limits of
the inferior jurisdiction, and pray execution within
those
PSSalk. 321. S. C.
1 Append. Chap. XLII. § ^ 3 Salk. 320. 1 Ld. Raym-
31, &c. 216. S. C.
'•2 Salk. 598. Carth. 105..
OF SCIRE FACIAS. 100^
those limits ' : But if the judgment be removed in-
to the King's-Bench by writ of error, and affirmed,
the party may have execution in any part of Eng-
land; for by the affirmance, it is become the judg-
ment of the King's-Bench ".
After the judgment has been once revived hy scire
facias^ if the plaintiff do not take out execution
within a year ^, or the defendant die before execu-
tion '% the plaintiff cannot afterwards take it out,
without a new scire facias., or action on the judg—
ment; but he may have a new writ without motion,
for the judgment was revived before ''.
Secondly: As the parties in the King's-Bench,
have no day in court given to either of them, on
the removal of the record by writ of error ^ the de-
fendant in error hath no other way of compelling
the plaintiff to assign his errors, than by suing out
a writ oi scire facias qiiare executionem non, &c. ^;
and if upon such writ, the plaiatiff in error do not
assign errors, but suffer judgment to pass by de-
fault upon scire feci, or two nihils, no errors after-
wards
t But see the statutes 19 Blac. 532. ^/z/e, Chap. XVII.
Geo. III. c. 70. and 33 Geo. "Append. Chap. XLII. §
III. c. 68. by which execution 43, &c. 1 Ld. Raym. 216. 3
may be issued in certain cases, Salk. 320. S. C. and see 3 T.
out of the courts at IVestmin- R. 657.
«?er, upon judcrments obtained ^ 2 Cromp. 103. Imp. K.
in inferior courts, against the B. 382.
person or effects of the defen- w 2 Salk. 598.
dant, in like manner as upon ^ Id. ibid.
juds^ments obtained in the y Godb. S8. 3 Leon. 197
<!ourts above : And see 1 H .
Vol. II. 3Y
lOlG OP SCIRE FACIAS.
wards assigned shall prevent execution*. This
writ, and the proceedings thereon, will be more
fully treated of in the next chapter.
Thirdly y with respect to demands arising after
the judgment, it is said to have been adjudged,
that in covenants perpetual, as to repair, &c. if they
be once broken, and an action of covenant brought,
and a recovery had thereon, if they be afterwards
broken, the plaintiff shall have a scire facias upon
the judgment, and need not bring a new writ of
covenant ^
Upon a writ of annuity^ the old books differ as
to the necessity of a scire facias^ in order to have
execution for subsequent arrears. In some books
it is said, that if judgment be given in a writ of an-
niiity^ the plaintiff shall have execution, within the
year after every day of payment, hy Jieri facias or
elegit, though it be many years after the judg-
ment '' ; but other books seem to hold a different
doctrine, and that for arrearages incurred after the
judgment, it is necessary to have a scire facias, in
order that the defendant may have an opportunity
of pleading payment, or other matter in bar of ex-
ecution ^
2 Carth. 40, 4 1 . « 1 1 Hen. IV. 34. Bro. Abr.
a Crc. Eliz. 3. but see 3 tit. jinnuity, -pi. 17. tit. Scire
Leon. 51. facias, pi. 75. Co. Lit. 145. 2
"> 21 Edvv. III. 22. 2 Inst. Co. 37. 6 Co. 45. Jenk. 51,2.
471. 1 Rol. Abr. 900. 2 Blac. 1 Rol. Abr. 229. 1 Salk. 258
Kep. 844. 2 Salk. 600,
OF SCIRE FACIAL. .1011
ecution. And this latter opinion is in some mea-
sure confirmed by the language of the judgment,
which is to recover the annuity, and arrearages of
the same, as well before the bringing of the action
as afterwards, up to the time when judgment is
given*^ ; but the amount of the arrearages subse-
quent to the judgment not being ascertained, it
seems to be necessary to have a scire facias^ to
warrant an execution.
In an action of (/e-f^? on bond, conditioned for the
payment of an annuity, after judgment had been
once obtained, it does not seem to have been for-
merly necessary to have a scire facias, to warrant
an execution for subsequent arrears ; but an exe-
cution might have been sued out for such arrears,
without a scire facias, at any time within a year af-
ter they were incurred, or even afterwards, if a
writ of execution had been previously taken out,
and was properly continued down *". Under such
an execution however, the plaintiff was not allowed
to levy the whole penalty, but only the arrears;
and therefore where he levied the whole penalty,
the court made a rule upon him to refund the
overplus, beyond what would satisfy the arrears;
and that judgment should stand as a security, with
liberty to take out execution, as future arrears
should
•iCo. Ent. 50. Cro- Car. « 2 Blac. Rep.843. and se«
436. Ante, 842. 1 H. Blac. 297.
1012 OF SCIRE FACIAS.
should arise ^. And now, as a bond conditioned for
the payment of an annuity is held to be within the
statute 8 & 9 W. III. c. 1 1. ^ 8 '^. it seems neces-
sary to proceed by scire facias on that statute, for
subsequent arrears.
In an action of debt on bond, conditioned for the
payment of money by instalments^ where the pro-
ceedings are stayed on payment of one or more
of the instalments, judg-ment is entered as a secu-
rity for the remainder, with a stay of execution till
they become due ; and in such case, there seems
to be no necessity for a scire facias, if execution be
taken out within a year after each default ^
Where judgment is entered in an action of debt
on bond, or on any penal sum, for non -performance
of covenants or agreements in any indenture, deed
or writing contained, we may remember ', that by
the statute 8 &. 9 /r. III. c. 11. ^ 8. it remains as
a security to answer such damages as shall or
may be sustained, for further breach of any covenant
or covenants in the same indenture, deed or wri-
ting contained; and the statute further directs, that
" the plaintiff may have a scire facias upon the said
'' judgment against tlie defendant, or against his
^* heir, tertenants, executors or administrators,
*' suggesting other breaches of the said covenants
''or
f 2 Blac. Rep. 1111. Rep. 706. 958. Bames, 281.
%Jnte,5\\. Jnte, 485.
^ 2 Str. 814. 957. 2 Blac '^ j^niey 51©.
OF SCIRE FACIAS.
1013
or agreements, and to summon him or them re-
spectively to shew cause, why execution should
not be had or awarded upon the said judgment'';
upon which there shall be the like proceeding,
as in the action of debt upon the said bond or
obligation, for assessing damages upon trial of
issues joined upon such breaches, or inquiry
thereof upon a writ to be awarded in manner as
therein directed; and that upon payment or satis-
faction of such future damages, costs and charges,
all further proceedings on the said judgment are
again to be stayed, and so toties quoties^ and the
defendant, his body lands or goods, shall be dis-
charged out of execution."
Fourthly^ with regard \.o future effects, it is enac-
ted by the statute 5 Geo, II. c. 30. § 9. that " in case
" any commission oi bankruptcy shall issue against
" any person or persons, who shall have been dis-
*' charged by virtue of that act, or shall have com-
*' pounded with his, her or their creditors, or de-
" livered to them his, her or their estate or effects,
" and been released by them, or been discharged
" by any act for the relief of insolvent debtors, then
" and in either of those cases, the body and bodies
" only of such person and persons conforming as
" therein mentioned, shall be free from arrest and
" imprisonment, by virtue of that act; but the
^''future
^ Append. Chap. XLII. § 46.
1014 0F SCIRE FACIAS.
'■^future estate and eflfects of every such person and
" persons shall remain liable to his, her or their
*' creditors, as before the making of that act;
" (the tools of trade, necessary household goods
" and furniture, and necessary wearing apparel of
" such bankrupt, and his wife and children, only
*' excepted,) unless the estate of such person or
" persons, against whom such commission shall be
" awarded, shall produce clear after all charges,
" sufficient to pay every creditor under the said
" commission, jifteeii shillings in the pound for
*' their respective debts." Upon this statute it has
been holden, that though a prior commission be
superseded by consent, a second bankruptcy does
not protect future effects, unless fifteen shillings in
the pound are paid under the second commission '.
The judgment against a bankrupt, under the
above circumstances, is general, if given before he
has obtained his certificate under the second com-
mission ; or if given afterwards, it may be special,
against his future estate and effects, with the ex-
ceptions in the statute. On a general judgment, the
plaintiff it seems cannot sue out a special execu-
tion against the future effects of the bankrupt, such
an execution not being warranted by the judg-
ment "". But where the defendant, having given a
warrant of attorney to confess a judgment, took the
benefit
' Doug. 46. « 1 T. R. 80.
OF SCIRE FACIAS. 1015
benefit of an insolvent act, and then became bank-
rupt and obtained his certificate ; after which the
plaintiff entered up a general judgment, and sued
out a general execution against his effects; the court
of Common Pleas held the proceedings to be regu-
lar, and that no scire facias was necessary, to autho-
rize either the judgment or execution; no dividend
appearing to have been made, nor any goods taken
under the execution more than the plaintiff was
entitled to ".
Where a writ of scire facias is necessary, as
where the judgment has been given more than a
year, and the defendant in the mean- time has been
taken in execution, and discharged upon obtain-
ing his certificate, the scire facias should state the
judgment, and the circumstances which make the
defendant's future estate and effects liable to satisfy
it, as that he was before a bankrupt, or had com-
pounded with his creditors, &.c. ; and in particular,
it is necessary to aver, that the bankrupt's estate
had not paid fifteen shillings in the pound under
the second commission, at the time of suing out the
writ: It then states, that the defendant has become
seised or possessed of some estate or effects ; and
commands the sheriff, that he make known to the
defendant, to appear in court at the return-day, to
shew why the plaintiff should not have execution
•f the debt or damages, to be levied of the estate
and
«3Bos. &Pul. lis.
1016 OF SCIRE FACIAS.
and effects, whereof the defendant hath become
seised or possessed, since the obtaining of his
certificate under the last commission, except his
tools, &c.
By the Lords' act, (32 Geo, 11. c. 28. ) 17. 20.)
we may remember", that "notwithstanding any
" discharge obtained by virtue of that act, for the
" person of any prisoner, the judgment obtained
" against every such prisoner shall continue and re-
" main in force, and execution may at any time be
" taken out thereon, against the lands, tenements,
" rents or hereditaments, goods or chattels of any
" such prisoner, other than and except the neces-
" sary wearing apparel and bedding for himself
" and family, and the necessary tools for the use of
*' his trade or occupation, not exceeding 10/. in
" value in the whole, as if he had never been be-
" fore arrested, taken in execution, and released
" out of prison." And it has been determined, that
the effects acquired by an insolvent, after his dis-
charare under the 34 Geo. III. c. 69. are liable to
be taken in execution, for a debt due before •*.
On a general judgment, obtained against a de-
fendant, before his discharge under an insolvent
act, no special execution can be taken out, with-
out first suing out a scire facias"^. And where a
warrant
o Jnte, 978. 1 1 T. R. 79.
p 6 T. R. 366. Ante, 978.
OF SCIRE FACIAS. 1017
warrant of attorney was given, before the passing
of an insolvent act, of which the defendant was en-
titled to take advantage by pleading in discharge
of his person, &c. it was holden, that a general
judgment signed by virtue of such warrant of at-
torney, after the defendant's discharge, would not
warrant a special execution under the act ' . But it
seems that in this case, a general execution, pur-
suing the judgment, would be regular; and that a
scire facias is unnecessary ^
In the case of an executor or administrator^ the
judgment against him is either upon the plaintiff's
confession of the plea of plene administravit, or plene
administravit prceter^ for the debt or damages and
costs, to be levied as to the whole or in part, of the
goods of the testator or intestate, which shall after-
wards come to the hands of the defendant to be
administered; which is called a judgment of assets
quando acciderint : or it is after a verdict, demur-
rer, or issue of nul tiel record^ or by confession of
the defendant, or nihil dicit, for the debt or da-
mages and costs, to be levied of the goods of the
testator or intestate, in the hands of the defendant,
if he hath so much thereof in his hands to be ad-
ministered, and if not, then the costs to be levied
of his own proper goods ^
In
«• 1 T. R. 79. B. 3 Bos. & Pul. 185. C. P.
*Per Cur. H. 41 G. III. K. ' 4 T. R. 648. 7 T. R. 359.
Vol. II. 2Z
1018 OF SCIRE FACIAS.
In the first case, the judgment appears to be
founded on the opinion of the court in Mary Ship-
ley'* s case ", where it was held, that upon a plea of
plene adininistravit^ the plaintiff may have judgment
for his debt presently, for thereby the defendant
confesses the debt; but he cannot have execution,
until the defendant have goods of the deceased,
when he may either sue out a scire facias ^, or bring
an action ol debt upon the judgment, suggesting a
devastavit: And though this opinion was question-
ed, in the case oi Dorchester \. IVehh '", yet in a sub-
sequent case "^ it was established, and has ever since
been adhered to. So in debt against an heir, if he
plead nothing by descent, the plaintiff may have
judgment presently, and a scire facias Vvdien assets
descend ''. But by taking judgment of assets quando
acciderint^ the plaintiff admits that the defendant
has fully administered to that time ; and therefore
on a scire facias y or action of debt on the judgment,
suggesting a devastavit, the court will not allow the
plaintiff to give any evidence of effects come to
the defendant's hands before the judgment ^ And
for the same reason, the scire facias on a judgment
of
"8 Co. 134. 2 Keb. 606. 621. 631. 666.
''Append.Chap.XLII.§48. 671. S. C. Hob. 199. S. P.
w Cro. Car. 372. and see 7 T. R. 29.
X Mlson V. J^'oell and others, v 8 Co. 1 34.
2 Saund. 226. 1 Sid. 448. ^ Bui. JV7. P77. 169.
1 Lev. 286. 1 Vent. 94, 5.
OF SCIRE FACIAS. 1019
of assets quando acciderint^ must only pray execu-
tion of such assets as have come to the defendant's
hands since the former judgment; and if it pray
execution of assets generally, it cannot be support-
ed *. Where, upon a suggestion of assets, a scire
Jaciaswas taken out, and assets were found for part,
judgment was given to recover so much immedi-
ately, and the residue of assets infuturo ^.
In proceeding upon a judgment against an exe-
cutor or administrator, after verdict, &c. it is
usual for the plaintiff to sue out a fieri facias de
bonis testatoris, si, ^c. et si non, de bonis propriis.,
according to the judgment •=; upon which the
sheriff, if he cannot execute the writ according
to its tenor, either returns nulla bona generally, or
nulla bona and a devastavit by the defendant *. On
the latter return, the plaintiff, we have seen ^, may
have execution immediately against the defendant,
by capias ad satisfaciendurn, ov fieri facias de bonis
propriis: But on the former, the ancient course was
to issue a special writ, for the sheriff to inquire
whether the defendant had wasted any of the goods
of the deceased ^: And if a devastavit were found,
and returned by the sheriff, a scire facias issued for
the defendant to shew cause, why the plaintiff
should
> 6 T. R. 1. c Cro. Eliz. 887.
^ Ferryman 8c Westwood, ^ Thes. Bvcv. 116, 17.
cited in Vent. 95. ?c 1 Sid. « Anic^ 93".
448. 'Cro. Eliz. 859. 887.
1020 OF SCIRE FACIA-S.
should not have execution de bonis propriis; to
which scire facias the defendant might appear, and
plead plene administravit ^. But now, for the sake
of expedition, the inquiry and scire facias are made
out in one WTit, which is called a scire fieri-mc\[iiry\
reciting the judgment, fieri facias, and return of
nulla bona, and after suggesting a devastavit, com-
manding the sheriff to cause the debt or damages
and costs to be made of the goods of the testator
or intestate, if, &c. ; and if not, then if it shall
appear by inquisition'', that the defendant hath
wasted the goods of the deceased, to give notice
to the defendant, to appear in court at the return
of the writ, to shew cause why the plaintiff ought
not to have execution de bonis propriis ': And there
must be the same notice of executing such writ, as
of a common writ of inquiry \ This method how-
ever, though preferable to the old one, is seldom
pursued at this day ; as the plaintiff is not allowed
any costs, unless the defendant appear and plead,
or there be a joinder in demurrer: And therefore
it is more usual, on the return of nulla bona to the
fieri facias, to bring an action of debt on the judg-
ment, suggesting a devastavit.
The
B Cro. Eliz. 859. 887. Lil. XLII. § 47.
Ent. 667. J Gilb. Cas. 95. I Str. 235.
h Append. Chap. XLII.§ 69. 623. 2 Ld. Raym. 1382. 8
i Thes. Brev. 236, &c. Lil. Mod. 366. S. C. Cas. Pr. C
Ent. 666. Append. Chap. P. 1.
OF SCIRE FACIAS. 1021
The scire facias^ upon a change of parties, is
governed by the rule laid down in the case of Pen-
oyer v. Brace "", that where a new person is to be
benefited or charged by the execution of a judg-
ment, there ought to be a scire facias to make him
party to the judgment; but w^here the execution
is not beneficial or chargeable to a person, who
was not party to the judgment, a scire facias is un-
necessary. On this rule depend the cases of mar-
riage, bankruptcy, and death: and first, o^ marriage.
If Si feme-sole obtain judgment, or there be judg-
ment against her, and she afterwards marry before
execution, there must be a scire facias for or against
husband and wife, in order to execute the judg-
ment. And in a modern case ^ it was holden, that
the husband cannot have execution for the costs,
on a plea of coverture found for his wife, sued as
2i feme -sole, without a scire facias ; it being a max-
im, that a person not a party to the record, cannot
be benefited or charged with the process, without
a scire facias. In a scire facias by baron and feme,
upon a judgment recovered by the feme clum sola,
the plaintiffs should state their marriage "' ; but
they need not allege it with a venue, this being
only matter of surmise, to which no venue is ne-
cessary ".
If
k 1 Ld. Raym. 245. I Salk. " 2 Str. 775. 2 Ld. Raym.
319, 20. S. C. and see 2 Inst. 1504. 1 Barnard. K. B. 16.
471. 2 Ld. Raym. 768. S. C. and see 2 H. Blac. 14"
» Doug. 637. 7 T. R. 343.
"^ Append. Chap. XLII. % 50.
1022 OF SCIRE FACIAS.
If husband and wife obtain judgment, for the
proper debt of the wife, and afterwards the wife
die before execution, the husband alone may have
a scire Jacias, without taking out administration " ;
for by the judgment, the nature of the debt is al-
tered, and it is become a debt to the husband. So
if execution be awarded to the husband and wife,
on a judgment obtained by the wife clum sola, for
her own proper debt, the husband alone may have
a scire Jacias after his wife's death °; for though the
award of execution does not alter the nature of the
debt, yet it alters the property, and vests it in the
husband jointly with his wife. And, in like manner,
if judgment be obtained against stjeme-sole, and
she marry, and then the plaintiff sue out a scire Ja-
cias against husband and wife p, and have judgment
quod haheat executionem against both, and after-
wards the wife die, the plaintiff may sue out a scire
facias^ and have execution against the husband ''.
But if husband and wife obtain judgment, for a
debt due to the wife as executrix, and then the
wife die before execution, the husband cannot
have 2l scire Jacias upon the judgment '^; for though
he was privy to the judgment, he shall not have
the
n Cro. Eliz. 844. 1 Sid. § 51.
337. 1 Mod. 179. q 3 Mod. 186. Carth. 30.
o 1 Salk. 116. Carth. 415. Comb. 103. S. C.
Comb. 455. Skin. 682. S. C. ^ Cro. Car. 207. 227. W,
p Append. Chap. XLTI. Jon. 248. S. C.
OF SCIRE FACIAS. 1023
the thing recovered, but it belongs to the succeed-
ing executor or administrator.
Secondly, of bankruptcy. If the plaintiff become
bankrupt, after interlocutory and before final judg-
ment', or after final judgment and pending a writ
of error ', his assignees may proceed to final judg-
ment or affirmance, in the bankrupt's name. And
where the plaintiff became bankrupt after j udgment,
and a writ of error allowed, it was determined that
his assignees could not sue out a scire facias in their
own names, to compel an assignment of errors,
but must go on with the writ of error in the bank-
rupt's name, till judgment". It was formerly
holden, that if the plaintiff became bankrupt, after
final judgment or affirmance, and before execution,
the assignees must have sued out a scire facias^.
And a scire facias by the assignees of a bankrupt,
stating that he became bankrupt, within the true
intent and meaning of the statutes, &c. and that
his effects were afterwards in due manner assigned
to the plaintiffs, was deemed sufficiently certain;
without alleging the particular requisites neces-
sary to support a commission, or that the party
was
» 2 Wils. 372. 2 T. R. 45. where a scire facian
M T. R. 463. 2 T. R. 45. issued, upon a bankruptcy hap-
i^ 1 T. R. 463. pening between interlocutory
V 1 Mod. 93. 1 Vent. 173. and final judgment.
S.C.and see 2 Wils. 372, 78.
1024 OF SCIRE FACIAS.
was declared a bankrupt, or his effects assigned by
deed, and without making a profert in curia of the
deed of assignment '^ But where the plaintiff be-
came bankrupt, after he had revived the judgment
by scire facias^ the court ordered the special mat-
ter to be entered, to entitle his assignee to the bene-
fit of the judgment on the scire facias^ without bring-
ing a new scire facias ". And in a late case '', where
the plaintiff became bankrupt between interlocu-
tory and final judgment, and sued out execution
in his own name, the court refused to set aside the
proceedings.
Thirdly, oi death; which may be considered ei-
ther as it happens before, or after final judgment.
At common law, the death of a sole plaintiff or
defendant, at any time before final judgment,
would have abated the suit. But now, by the sta-
tute 17 Car. II. c. 8. for the avoiding of unneces-
sary suits and delays, it is enacted, that " in all
" actions personal, real or mixed, the death of ei-
*' ther party, between the verdict and the judgment ^
" shall not be alleged for error; so as such judg-
" ment be entered within two terms after the ver-
*' diet." Upon this statute, the judgment is en-
tered for or against the party, as though he were
alive ^; and it should be entered, or at least signed^,
within
^v 2 T. R. 45. and see Append, y 3 T. R. 437.
Chap. XLII. § 52. ^ 1 Salk. 42.
s 5 Mod. 88. a 1 Sid. 385. Barnes, 261
or SCIRE FACIAS. 1025
within two terms after the verdict. But there must
be a scire facias to revive it, before execution ^ :
And such scire facias^ pursuing the form of the
judgment, should be general % as on a judgment
recovered by or against the party himself.
By a subsequent statute '^, it is enacted, that " in.
*' all actions to be commenced in any court of re-
*' cord, if the plaintiff or defendant happen to die,
*' after interlocutory, and before final judgment, the
" action shall not abate by reason thereof, if such
" action might have been originally prosecuted or
*' maintained by or against the executors *or ad-
*' ministrators of the party dying; but the plaintiff,
" or if he be dead after such interlocutory judg-
" ment, his executors or administrators, shall and
** may have a scire facias against the defendant, if
*' living after such interlocutory judgment, or if
" he died after, then against his executors or ad-
*' ministrators, to shew cause why damages in such
" action should not be assessed and recovered by
" him or them ^. And if such defendant, his exe-
*' cutors or administrators, shall appear at the re-
*' turn of such writ, and not shew or allege any
*' matter sufficient to arrest the final judgment, or
" being returned warned, or upon two writs of
" scire facias, it be returned that the defendant, his
executors
Chap. XLir.
«> 1 Wils. 302.
§6.
^2 Ld. Riiym. 1280.
e Append.
<*Stat.8 8c 9 VV.III.c.
11. § 53, &c.
Vol. II.
%A
1026 OF SCIRE FACIAS.
" executors or administrators, had nothing where-
" by to be summoned, or could not be found in the
" county, shall make default, that thereupon a writ
*^ of inquiry of damages shall be awarded; which
" being executed and returned, judgment final
" shall be given for the said plaintiff, his executors
" or administrators, prosecuting such writ or writs
" of scire facias^ against such defendant, his exe-
*' cutors or administrators, respectively ^" This
statute has been held not to extend to cases where
the party dies before interlocutory judgment;
though it be after the expiration of the rule to
plead ^.
Where either party dies after interlocutory judg-
ment, and before the execution of the writ of in-
quiry, the scire facias upon this statute ought to
be for the defendant, or his executors or adminis-
trators, to shew cause why the damages should not
be assessed, and recovered against them \ and to
hear the judgment of the court thereupon '. But
where the death happens after the writ of inquiry
is executed, and before final judgment, the scire
facias must be to shew cause, why the damages as-
sessed by the jury should not be adjudged to the
plaintiff, or his executors or administrators ^
The
t'Append.Chap. XLII. § 76. i 6 Mod. 144.
g 1 Wils. 315. k 1 wils. 243. and see 1 T.
h Lil. Ent. 647. R. 388.
OF SCIRE FACIAS. 1027
The judgment upon this statute is not entered
for or against the party himself, as upon the 17
Cai'. II. but for or against his executors or admi-
nistrators ^ And where the defendant dies, after in-
terlocutory and before final judgment, two writs of
icire facias must be sued out by the plaintiff, be-
fore he can have execution ; one before the final
judgment is signed, in order to make the execu-
tors or administrators parties to the record; the
other after final judgment is signed, in order to
give them an opportunity of pleading no assets, or
any other matter in their defence : for it would be
unreasonable that the executors or administrators
should be in a worse situation, where their testator
or intestate died before the final judgment was
signed, than they would have been in, if he had
died afterwards *".
Where there were two or more plaintiffs or de-
fendants in a personal action, the death of one or
more of them pending the suit, would formerly in
some cases have abated it ". But now, by the sta-
tute 8 & 9 /r. III. c. 11. ^ 7. 'Mf there be two or
*' more plaintiffs or defendants, and one or
*' more of them die, if the cause of action shall
•*' survive to the surviving plaintiff or plaintiffs, or
*' against the surviving defendant or defendants,
«' the
» Salk. 42. n Cro. Jac. 19. Carter, 19.X
'« Say. Rep. 266. 3 Mod. 249.
1028 OF SCIBE FACIAS.
" the writ or action shall not be thereby abated j
" but such death being suggested upon the record,
" the action shall proceed, at the suit of the sur-
" viving plaintiff or plaintiffs, against the surviving
" defendant or defendants." In such case, if the
death happen before issue joined, it should be sug-
gested in making up the issue ; but otherwise it
need not be suggested, till the plea-roll is made
up°. And where one of two plaintiffs died before
interlocutory judgment, and the suit notwithstand-
ing went on to execution in the name of both ; on
a motion to set aside the proceedings for this irre-
gularity, the court permitted the surviving plain-
tiff to suggest the death of the other on the roll,
and to amend the capias ad satisfacieiidum^ without
paying costs ''. But as no new person is introduced,
there is no occasion for a scire facias in these cases,
to revive the judgment.
Where there were two or more defendants, and
one of them died after judgment^ arid before exe-
cution, it was formerly holden'', that the plaintiff
was put to his scire facias^ against the personal re-
presentatives of the deceased. But it was afterwards
determined, that in such case a scire facias would
lie against the survivor alone, reciting the death ' ;
and
1 Bur. 36S. § 57. T. Rayin. 26. 1 Lev. 30,
V5 T. R. 577. 1 Keb. 92. 123. S. C. Carth-.
1 Yelv. 208. 106. S. C. cited.
I" Append. Chap. XLIh
OF SCIRE FACIAS. 1029'
and he could not plead, that the heir of the deceas-
ed had asbcts by descent, and pray judgment if he
ought to be charged alone : for at common law, the
charge upon the judgment, being personal, survi-
ved ; and the statute of TFestm. 2. which gives an
elegit^ does not take away the common-law reme-
dy ; and therefore the plaintiff may take out his ex-
ecution, which way he pleases : But if he should,
after the allowance of this writ, and revival of the
judgment, take out an elegit to charge the land,
the party may have remedy by suggestion, or else
by audita querela ^ And it is now settled, that
where there are two or more plaintiffs or defen-
dants in a personal action, and one or more of them
die after judgment, execution may be had for or
against the survivors, without a scire facias ^ : But
the execution in such case should be taken out in
the joint names of all the plaintiffs or defendants" ;
otherwise it will not be warranted by the judgment.
Where there is only one plaintiff or defendant,
who dies after final judgment^ and before execu-
tion, a scire facias may be had by or against his
personal
p 3 Bac. Abr. 698. 4 Bac. Comb. 441. 5 Mod. 338.
Abr. 419. Show. 402. S. C. 3 Salk. 319.
t Moor, 367. Noy, 150. Car- 7 Mod. 68. S. P.
ter, 112. 193. 1 Ld. Raym. " 1 Ld. Raym. 244. 1 Salk.
244. 1 Salk. 319, Carth. 404. 319. S. G.
1030 OF SCIRE FACIAS.
personal representatives ; and upon the death of the
party against whom the judgment is given, the
other party may proceed by scire facias against his
heir and tertenants.
The personal representatives are the executor or
administrator of the deceased ; or if there be more
than one, the executors or administrators, and the
survivors of them : And the executor of an execu-
tor is considered as the representative of the first
testator. If any of the executors or administrators
are feme coverts, their husbands must be made
parties to the scire facias: And though an execu-
tor or administrator become bankrupt, yet he may
still proceed by scire facias; as the bankruptcy
does not affect him in his representative character.
But the administrator of an executor, claiming by
the act of the ordinary, does not represent the ori-
ginal testator ^ ; nor does the executor or admi-
nistrator of an administrator represent the first in-
testate. Therefore, when an executor dies intestate,
or after the death of an administrator, it is neces-
sary to take out administration de bonis non, or of
such goods as are left unadministered ^^.
At common law, an administrator de bonis non^
claiming by title paramount, could not have had a
scire facias, or otherwise proceeded on a judgment
recovered
^' I Bos. 8c Pul. S 10. "■ Id. ibid.
II
OF SCIRE FACIAS. 1031
recovered by an executor or administrator ; but it
was otherwise in the case of a judgment recovered
against an executor or administrator ". And now,
by the statute 17 Car. II. c. 8. \ 2. " Where any
" judgment after a verdict shall be had, by or in the
" name of any executor or administrator, in such
" case an administrator de bonis non may sue forth
*' a scire facias, and take execution upon such
" judgment." On this statute it has been holden,
that an administrator de bo?iis non may not only
commence an execution, on a judgment obtained
by an executor or administrator, but may perfect
an execution already begun y. But still, if an exe-
cutor bring a scire facias on a judgment or recog-
nisance, and get judgment quod habeat executio-
nem, and die intestate, the administrator c/d- bonis non
must bring a scire facias upon the original judg-
ment, and cannot proceed upon the judgment in
the scire facias i.
The scire facias on a judgment by the personal
representatives states, in addition to the judgment,
the death of the testator or intestate, as the court
have been informed by the person suing it out, who
is described as his executor or administrator '' : If
the writ be brought against personal representa-
tives,
^ 1 Rol. Abr. 890. W. Jon. ^ 2 Ld. Raym. 1049.
2U. Cro. Car. 167. S. C. ^ Append. Chap. XLII. §
' 1 Salk. 323. 58. 60.
1032 OF SCIRE FACIAS.
lives, it states that the testator died, having made
the defendant his executor, or in the case of an ad-
ministrator, the death of the intestate, and the grant
of administration; and is for the defendant to shew
why the plaintiff should not have execution of the
debt or damages, to be levied of the goods and
chattels which were of the testator or intestate at
the time of his death, in the defendant's hands to be
administered, he *". In a scire facias on a judgment
recovered by an executor, the death of the testa-
tor need not be expressly averred ^
Upon the return of nihil to a writ of scire facias
against the personal representatives the plaintiff
may have a scire facias against the heir of the de-
fendant, either alone or jointly with the t er te-
nants ^ or tenants of the lands whereof the defendant
w^as seised at the time of the judgment, or at any
time afterwards'^: But where judgment is had
against one who dies before execution, a scire facias
will not lie against his heir or tertenants, until a
nihil be returned against his executors or admi-
nistrators ^ ; and as the heir in this case is charged
as tertenant ^, the plaintiff can only have execution
of a moiety of his land ^, even where he pleads a
a false plea ^.
In
i* Append. Chap. XLII. § e Carth.107. 2 Wms.Saund.^
59.61. 72. o./z.
c 1 Str. 631. 2 Ld. Raym. f 3 Co. 12. Cro. Car. 295.
1395. S.C. 312.
d 2 Wms. Saund. 7. (4 ) g 2 Wms. Saund 7 (4.)
and see id. 8. (9.) for the de- ^ Id. ibid. Cro. Car. 296.
^\n\iiovi oi ter-tenants. Carth. 93.
OF SCIRE f ACIAS. 1033
In a scire facias against the heir r.nd tertenants,
the heir cannot object that the scire facias ought
first to have issued against him'. But it seems to
be the better opinion, that the tertenants alone are
not to be chariged until the heir be summoned, or
it be returned that there is no heir, or that the
heir hath not any lands to be charged''; for the
heir may have a release to plead, or other matter
in bar of excution: and his land is rather to be
charged than the land of the tertenants, for the
heir shall not have contribution against the terte-
nants, as they shall against him; also if the heir be
within age, the parol shall demur, and the terte-
nants shall have advantage of it '.
Where there are several defendants, and one of
them dies before execution, since the charge upon
the judgment survives as to the personalty, though
not as to the realty ", the plaintiff may have a scii'e
facias^ framed upon the special matter, viz. against
the survivor, to shew why the plaintiff should not
have execution against him, of his goods and
chattels, and of a moiety of his lands, and against
the heir and tertenants of the deceased, to shew
why the plaintiff should not have execution of a
moiety of the deceased's lands, without mention-
ing any goods ".
The
i Cro. Eliz. 896. 2 Wms. Saund. 7. (4).
3aund. 72. /z. " Ante, 1028, 9.
k 2 Wms. Saund. 8. (8). « Carth. 105. 2 Wms.
• Bac. Abr. tit. Scire facias, Saund. 72. p.
C. 5. Cro. Car. 295. 2 Wms.
Vol. it. 3 B
1034
OF SCIRE FACIAS.
The scire facias against the tertenants is either
general^ against all the tertenants, without naming
them ; or special, setting forth their names °. But
if a plaintiff undertake to name them, he must name
them all ; and if he do not, those who are named
may plead in abatement p.
There is also another writ oi scire facias^ which
lies against tertenants, upon a writ of error to re-
^erse a fine or recover} i. This writ is said by lord
Holt to be discretionary, and not strict! furls ; but
yet to have been the constant and usual course of
the court, and therefore not to be departed from. To
this writ the tertenants can only plead a release of
errors, to defend their own possession, or for the
sake of purchasers ; but they cannot plead in abate-
ment of the writ, because they are not parties to
the suif. And there is no necessity in such case,
for a scire facias against the heir^
Having hitherto treated of the WTits of scire
facias, on recognisances and judgments, in what
cases
o 2 Salk. 600. 1 Ld. Raym.
669. S. C. and see 2 Wms.
Saund. 7. (4). Append. Chap.
XLII. § 62, &c.
P Comb. 282. 2 Wms.
Saund. 7. (4).
qCarth. 111. Skin. 273. S
C. 1 Bur. 360.
"• Carth. 111. Skin. 273. S.
C. 1 Bur. 359, 60. and see 2
Wms. Saund. 72.//.
« 1 Bur. 412.
OF SCIRE FACIAS. 1035
cases they lie, and by and against whom they may
be brought, with the forms of them, distinctly ; I
shall now consider them together, and shew the
proceedings thereon from the time of their being
issued, till they are finally determined.
A scire facias on a recognisance of bail in the
action, being an original proceeding, must be
brought in Middlesex, where the record is; for
recognisances in this court are not obligatory by
the caption, as in the Common Pleas, but by
being entered of record \ But in case of a recog-
nisance entered into by bail on a writ of error, it
is said, that if it be entered as taken at a judge's
chambers in Serjeants- Inn, the scire Jacias maybe
sued out m. London"^. A scire facias to revive a
judgment by or against the parties, or their per-
sonal representatives, not being an original pro-
ceeding, but a continuation of the former suit,
must be brought in the county where the venue
was laid in the original action, the defendants
being supposed to reside in that county'': But
upon a return of jiihil to the writ against the per-
sonal
12 Salk. 564. 600. 659. P. but see 1 East, 603.
6 Mod. 42. 132. 7 Mod. 120, " 8 Mod. 290. R. E. 5 Geo.
21. R. E. 5 Geo. II. Reg. 3. II. Reg. 3. a. Lil. Ent. 620.
a. 1 Bur. 409. K.B. Hob. 195. v Hob. 4. Yelv. 218. Cro.
Brownl. 69. Moor, 883. S. C. Jac. 331. S. C. R. l\. 5 Ge^.
Sty. Rep. 9. Aleyn, 12. S. C. IT. Reg. 3. a.
2 Lutw. 1287. Barnes, 97. C.
1036 OP SCIRE FACIAS.
sonal representatives, the plaintiff upon a testatum,
may have a scire facias against the heir and terte-
nants in a different county '''.
The scire facias upon a recognisance against
bail in the action, where the proceedings are by
bill, ought to be tested on the return-day, or by
original, on the quarto die post of the return of
the capias ad satisfaciendum against the principal ''.
Upon a judgment, it may be tested at any time
after the judgment, or first day of the term to
which it relates : And it may be antedated, even
in term-time, unless where it issues by rule of
court ''. By hill, the scire facias is made returnable
before the king at Westminster, on a day certain '^ ;
and where there is but one writ, there need be
only four days exclusive between the teste and re-
turn of it '. But every scire facias by original,
ought to have fifteen days inclusive between the
teste and return''; and should be made returnable
on a general-return day, wheresoever, &c. ^ A
scire facias in general is not amendable; and there-
fore
w Cro. Car. 313. Carth. 105. Raym. 1417.
and see 7 T. R. 28. a 4 t. R. 663. and see R. E.
y^ 6 Mod. 86. 8 Mod. 227. 5 Geo. II. Reg. 3. a.
2 Str. 866. 2 Ld. Raym. 1567. b R. T. 8 W. III. a. E. 5
S. C. R. E. 5 Geo. II. Reg. Geo. II. Reg. 3. a.
3. a. c 2 Lil. P.-R. 499. 3 Salk.
y 2 Salk. 599. 320. 1 Str. 146. R. E. 5 Geo.
^ 2 Lil. P. R. 499, Sec. R. II. Reg. 3. a.
E. 5 Geo. li. Reg. 3. a. 2 Ld.
Qf SCIRE FACIAS. 1037
fore if it be defective in the teste or return, or vary
from the record, &:c. the plaintiff must move to
quash if*.
The scire facias being sued out, is delivered to
the sheriff; and if the bail or defendants live in the
county into which the writ issues, the plaintiff may
cause them to be summoned thereon ; for which
purpose the sheriff will make out his warrant, a
copy of which should be delivered to them, or they
should have some notice of the proceeding-, the
sufficiency of which, if disputed, must be deter-
mined by the courts The bail may be summoned
at any time before the rising of the court on the
return-day ^ : And where the sheriff returns scire
feci, the court will not enter into the validity of the
summons upon motion, but leave the party to his
action against the sheriff, for a false return ^.
On the return -day of the scire facias, or quarto
die post of the return by original, the sheriff may be
called
d 1 Salk. 52. 1 Ld. Raym. of it by pleading nw//zV/ record.
182. 548. 2 Ld. Raym. 1057. Seethe cases on this subject,
1 Str. 401. 2 Str. 892. 1165. collected in 2 Ld. Raym. 1057.
But there are cases in the and 2 Bos. & Pul. 275.
books, where a writ of scire e 2 Blac. Rep. 837.
facias has been amended by f 1 East, 86. and see 1 Str.
the court; not only where it 644. R. E. 5 Geo. IL reg. 3.
was bad on the face of it, by the (a), but see 2 T. R. 757. cow-
mistake of the clerk, but also tra.
for a variance, where the de- k 2 Str. 813. .I Bur. 1360.
fendant had not taken ad vantage I Blue. Rep. 393. S. C^
1038 OF SCIRE FACIAi.
called upon for the return of it ; and except on a
scire facias against the heir and tertenants, he
either returns scire feci ^ or nihil; that he has given
notice to the bail or defendants ^, or that they have
nothing by which he can make known to them ' ;
or that he has given notice to one, and the other
hath nothing ^^ Sec. On a scire facias against the
heir and tertenants, the sheriff's return is either
that there are none ^, or that he has warned them to
appear : In the latter case, if the writ be general,
the sheriff should return that he has warned certain
persons, being the tenants of all the lands in his
bailiwick, describing them; or the tenants of certain
lands, and that there are no others " ; a return that
he has warned the tenants of all the lands gene-
rally ", or certain persons, tenants of lands in his
bailiwick °, being insufficient.
Where the sheriff returns nihil^ the plaintiff must
sue out a second or alias writ oi scire facias p, com-
manding the sheriff, as before he was commanded,
Sec. ; and if upon this second writ, the sheriff also
return nihil, and the bail or defendants do not ap-
pear,
»» Append. Chap. XLII. § pend. Chap. XLII. § 71.
65. " Carth. 105.
i Id. § 66. 2 Salk. 598. 2 Wms.
k Id. § 67. Saund. 8. (7).
1 Id. § 70. p 2 Inst. 272. Cro. Jac. 59.
n^Co. Ent. 622, 3. Off. 8 Mod. 227. Say. Rep. 121.
Brev. 278. 282. 286. Hearne, Append. Chap. XLII. § 8. 72.
o26. Dalt. Sher. 559. Ap-
OF SCIRE FACIAS. 1039
pear, there shall be judgment against them '^; two
nihils being deemed equivalent to a scire feci. It
was formerly usual to sue out both writs of scire
facias together, making the teste of the second as
if the first had been actually returned '^: But now,
there is a rule of court, that no writ of alias scir^
facias shall issue, until the first writ be returnable '.
Where there are two writs of scire facias^ the
second should be tested on the return-day, or by
original^ on the quarto die post of the return of the
first, except in error \ or the return-day happen
on a Sunday ". The alias should be made return-
able, like the first writ, on a day- certain'', or
general return- day, according to the nature of the
proceedings. And by bill^ it is sufficient if there
be fifteen days inclusive between the teste of the
first, and return of the second writ, without re-
gard to the number of days between the teste and
return of each "^ : But by original, there should be
fifteen days inclusive between the teste and return
of
<i Dyer, 168. 198. 172.201. " Dyer, 168. a.
Yelv. 1 12. Sty. Rep. 281. 288. ^ o Lji, p. r. 499, 8cc.
323. -^ T. Jon. 228. 2 Salk. 599.
«■ 2 Salk. 599. 8 Mod. 227. Carth. 468. 7 Mod. 40. 8
sR. T. 8 W. III. 12 Mod. Mod. 227. 2 Str. 765. 1139.
87. 7 Mod. 40. 96. R. T. 8 W. III. a. R. E. 5
t R. T. 8 W. III. a. and Geo. II. Reg. 3. a.
see 4 T. R. 377.
1040 OF SCIRE FACIAS.
of the alias, as well as of the first writ oi scire fa-
cias"^. Every writ of scire facias, of which notice
is given to the defendants, must be left in the
sheriff's office, four days exclusive before the re-
turn y : And where there are two writs, the first
should be left in the office sometime ^, (generally
one day,) and the alias four days exclusive (which
must be the last four days %) before the return ;
and the sheriff should indorse on every such writ,
the day of the month it is left in his office \ But so
as the second writ o{ scire facias be filed in proper
time in the sheriff's office, that is sufficient to war-
rant proceedings against the bail, though it be not
entered in the scire facias book kept by the sheriff,
which is merely a private book for his own conve-
nience. 3 East, 570.
On the return of the second scire facias, or of
the first, \{ scire feci be returned, a rule must be
given with the clerk of the rules, for the bail or
defendants to appear '^j which expires in four days
exclusive ; within which time, they either appear
or make default : In the latter case, the plaintiff is
entitled to judgment '^, which he may sign on the
expiration of the rule : And if a man have judg-
ment for damages against two, and sue out a scire
facias against both, if one be returned summoned,
and make default, and the other have nothing,
the plaintiff" may have execution against him who
made
-^ R. E. 5 Geo. II. Reg. 3. a. ^ 4 T. R. 583.
y Williams v. Mason, M. 4 b R. £. 5 Geo. II. Reg. 3.
G. II. 1 East, 89. (a). R. E. ^ Id. a. Append. Chap.
5 Geo. II. Reg. 3. 3 Bur. XLII. § 73.
1723. 4 Bar. 2439. ^^ Com. Dig. tit. Pleader, S
" Id. ibid. L. 8, 9.
OF SCIRE FACIAS. 1041
made default, for the whole ". So if it be re-
turned that one of them is dead, he shall have ex-
ecution for the whole against the other ^ Judgment
being signed, the proceedings in scire facias should
be forthwith entered on a roll, and execution
awarded : The ent7'y of the proceedings is either
against bail ^, or in other cases ^ ; And where two
writs issue, returnable in different terms, the first
must be entered of the term wherein it is returna-
able ; and an award of the second is sufficient, with-
out setting it forth at large '.
If the bail or defendants appear to the scire fa-
cias^ which is signified by delivering a note in wri-
ting to the plaintiff's attorney '', a declaration must
be delivered, on treble-penny stamped paper, a
rule given to plead, and a plea demanded, as in
other cases ^
The declaration in scire facias begins by stating
that the king sent to the sheriff, his writ close in
these words, (setting forth the writ verbatim): It
then states the plaintiff's appearance at the return
of the writ, and the sheriff's return thereto ; and if
he return wi/zi/, it contains a recital of the mandatory
part
» Bac. Abr. tit. Execution^ » R. E. 5 Geo. II. Reg.
G. 3. a.
(Id. ibid. k Append. Chap. XUI. §
K Append. Chap. XLII. § 13. 77.
9, &c. »R. E. r; Geo. II. Rcj.
•»/rf. §74, &c. 3. a.
Vol. II. 3C
1042 OF SCIRE FACIAS.
part of the second writ of scire facias^ and goes on
to state the plaintijQf's appearance, in like manner,
at the return of that writ, and the sheriif 's return
thereto : Then follows the appearance of the bail or
defendants; and the declaration against ^ai/ con-
cludes, by praying execution of the debt or dama-
ges recovered by bill, or of the sum acknowledged
by original, according to the force, form and effect
of the recognisance *"; or upon a judgment after a
year and a day, it concludes by praying execution
of the debt or damages generally " ; or against exe-
cutors or administrators, of the debt or damages,
to be levied of the goods and chattels of the origi-
nal defendant, in their hands to be administered °;
or against the heir and tertenants, to be levied of
the lands and tenements, whereof they are returned
tenants, or which have descended and come to the
heir, by hereditary descent from the defendant, ac-
cording to the force, form and effect of the recove-
ry p. A declaration in scire facias, returnable the
last return of a term, may be entitled of the same
term generally ''. And it is usual for executors and
administrators, in declaring on a scire facias, to
make a profert in curia of the letters testamentary,
or of administration ; but it may be inserted either
in the middle, or at the end of the writ *■.
To
'"Append. Chap. XLII, § p/rf. §82.
14, 15. <! 3 VVils. 154.
•i Id. § 78, &c. ^ Carth. 69, 1 Show. 60. 8
°/c/. §81. Mod. 134. 7 Mod. 15.
OF SCIRE FACIAS. 1043
To a scire facias on a recognisance or judgment,
the defendant may plead in abatement or in bar, as
in other actions ^ On a general writ of scire facias
against the heir and tertenants, if some of the terte-
nants only are summoned, they may plead that
there are other tertenants not named, in the sa7ne
county, and pray judgment if they ought to an-
swer guousque the others be summoned, but ought
not to pray quod breve cassetur; for the court ought
never to abate the writ, but where the plaintiff can
have a better writ^ : But upon a special writ, if all
the tertenants are not named in it, those who are
may plead in abatement ; for there, the party may
have a better writ, by naming them all " : And it
seems to be a good plea, that there are other ter-
tenants not named, in another county ^. When a
tertenant is summoned, and doth not plead that
there are other tertenants, not summoned or named
in the writ, he shall never afterwards have a scire
facias or audita querela^ to compel the others to
contribute "'. To a scire facias against a tertenant,
upon a judgment in debt or other personal action,
the defendant cannot plead non-tenure generally,
because it is contrary to the sheriff's return ; but
he
s 2 Inst. 470. 10 Mod. 112. v 2 Vent. 104. Bac. Abr.tit.
t2 Salk. 601. 6 Mod. 199, Scire facias^ C. 5. 2 Wms.
226. 2 Ld. Raym. 1253. 3 Saund. 8. (10).
Salk. 321. S. C. 2 Wms. "^ Moor, 524. 2 Wms.
Saund. 8. (10). Saund. 8. (10).
u Id. ibid.
1044 OF SCIRE FACIAS.
he may plead a special non-tenure in such case, as
that he has onl}- a term for years '''.
On a scire facias against bail in the action, they
may plead mil tiel record of the recognisance '', or
of the recovery against the principal; payment by,
or a release to the principal or bail ^ ; or that the
principal rendered himself, or was rendered by
hi'^ bail, before the return of the capias ad satisfa-
ciendum ^. They may also plead, in discharge of
their liability, that there was no capias ad satisfa-
ciendum sued out and returned against the princi-
pal^: and if there be a void writ, it is as none ^
But if the writ be merely irregular, as if it was
sued out after a } ear, without a scire facias ^, or
made returnable on a day out of term '^, the bail
cannot take advantage of the irregularity by plead-
ing. If the principal die, before the return of the
capias ad satisfaciendum, this will operate in excuse
of performance, and the bail may plead it in their
discharge ''. So they may plead that a writ of er-
ror
^v 2 Salk. 601. 3 Salk. 321. b 3 Keb. 671. 6 Mod. 304.
6 Mod. 199. 225. 2 I,d. = 2 Ld. Raym. 1096. 6Mod.
Raym. 1253. S. C. and see 304. Holt, 90. S. C.
B 10. Abr. tit. Scire facias, E. ^2 Bur. 1 1 87, 8.
Con". Dig. lit. Pleader, 3 L. ^ i Roj. Abr. 336 Cro. Jac.
11. 165. W. Jon. 139. Sty. Rep.
^ T/ies. Brev. 265. 324. 12 Mod. 601. 10 Mod.
y Sty. Rep. 324. 1 Ld. 267. R. E. 5 Geo. II. Res?. 3.
Raym. 157. Stat. 4 Ann. c. a. But they cannot plead the
16. § 12. bankrufitcy and certificate of
2 1 Ld. Raym. 156, 7. their principal. 1 Bos. 8c Pul
a Sty. Rep. 281. 288. 324. 450. (b). 2 Bos. & Pul. 45
II
OF SCIRE FACIAS. 1045
ror was sued out and allo^\ ed, after the issuing and
before the return of the capias ad satisfaciendum
against the principal, so as to avoid proceedings
against them in scire facias upon the recognisance
of bail, prosecuted after a return by the sheriff of
non est inventus^ made pending such writ of error ^.
But it is not a good plea, that the principal
died before the issuing s^ or after the return ^ of
the capias ad satisfaciendum ; for though a plea
that the principal died before the writ issued, be
conclusive if found for the defendant, yet it is not
so, if found for the plaintiff; inasmuch as the prin-
cipal might still have died after the issuing, and
before the return of the w^-it : and where the prin-
cipal dies after the return of the capias ad satisfa-
ciendum^ this will not discharge the bail; for upon
the return of non est inventus, their recognisance
is in strictness forfeited; and though a render after-
wards, and before the return of the scire facias, is
allowed, yet that is merely ex gratia, and not ex
debito Justiti^, and therefore cannot be pleaded '.
Where the principal died after a capias ad satisfaci-
endum returned, and before it was filed, the court
on motion would have formerly stayed the filing of
it, in favour of the bail ^: But in a late case it was
hoi den,
f 2 East, 439. Say. Rep. 121.2 Wils. 67.
B 10 Mod. 267. 303. » .//«/e, 238, 9.
t* 12 Mod. 112.236. 8 Mod. ^ 1 Lil. P. H. 183. and sec
31. I Str. 511. S. C. 2 Ld. R. E. 5 Geo. II. Reg. 3. a. 2
Raym. 1452. 2 Str. 717. S.C. Cromp. 88. 1 Rich. Pr.445.
1046 OF SCIRE FACIAS.
holden, that if the principal die after the return of
the capias ad satisfaciendum^ and before the return
is filed, the bail are fixed ; and the court will not
stay the filing of the return ^ To a plea of the
death of the principal, before the return of the
capias ad satisfaciendum^ the plaintiff in his replica-
tion must set forth the writ, and that the principal
was alive at the return of it '^ ; and such replication
must conclude with an averment ".
If a scire facias be brought on a judgment, the
defendant may plead nul tiel record of the recovery",
payment '', or a release "^j or that the debt or da-
mages were levied on a feri facias % the defen-
dant's lands_extended for them upon an elegit % or
his person taken in execution on a capias ad satis-
faciendu?n\ But it is a rule, that the defendant
cannot plead any matter to the scire facias on a
judgment, which he might have pleaded in the
original action ". If the scire facias be brought
against an executor or administrator, he may plead
ple?ie administravit ; but then, the judgment being
entitled
1 6 T. R. 284. Ante^ 994. Cro. Car. S28. Clift, 675.
m Carth. 4. ^ Dyer, 299. b. 1 Lev. 92.
n 2 Wils. 65. Doug. 58. 2 t Off, Brev. 300. 1 Salk. 271.
T. R. 576. Ante^ 957. but see 1 Lutw.
o Off. Brev. 279. Mod. Int. 641, 3.
368. >! Cro. Eliz. 283. 588. 1 Sid.
p Stat. 4 Ann. c. 16. § 12. 182. 1 Salk. 2, 2 Str. 1043.
q 3 Lev. 272. Cas. temfi. Hardw. 233. S, C
»-4 Leon. 194. Sav. 123. Cowp. 727.
OF SCIRE FACIAS. 1047
entitled to a preference, he must shew in what
manner he has administered "". And where, in an
action against an executor, the plaintiff dies after
interlocutory and before final judgment, the defen-
dant cannot plead to the scire facias for assessing
damages, a judgment upon bond against his testa-
tor, and no assets ultra; for the statute never in-
tended that the executor should be in a better situ-
ation, as to the assessing of damages upon the in-
quiry, than his testator, who could have pleaded
nothing but a release, or other matter in bar, aris-
ing puis darrein continuance ^''. All pleas and de-
murrers, upon writs of scire facias^ ought to be
delivered ; and all issues " thereon made up by the
attorn ies ^.
Where the party has a release, or other matter
which he might have pleaded to the scire facias in
his discharge, and for want of pleading it, execu-
tion is awarded upon a scire feci returned, he is
estopped for ever, and cannot by any means take
advantage
"■' 1 Ld. Raym. 3, 4. " For the form of the issue
^v 1 Salk. 315. 6 Mod. 142, in scire facias against bail, see
S. C. but yziicre whether the Append. Chap. XLII. § 16.
interlocutory judgment in this and for the entry of issue, and
case was not obtained against award of execution, 8cc. after
the testator, and he dying, the verdict, see id. § 17.
scire facias issued against his y R. T. 12 W. III. ?l. Jnfe.
executor f 666.
1048 OF SCIRE FACIAS.
#
advantage of that matter"^. But where execution
is awarded on two jiihils returned, he may relieve
himself by audita querela, though not by writ of
error =* : And where the case is clear, and the ap-
plication recent, the court will interpose in a sum-
mary way, and relieve the party upon motion '',
without putting him to an audita querela. But
they will never do it, where the fact is disputed •=;
or there has been a long acquiescence, and several
steps have been taken subsequent to the award of
execution'^.
No damages are recoverable in scire facias, for
delay of execution ^ ; and the parties were conse-
sequently not entitled to costs, until the statute 8 &
9 W. III. c. 11. \ 3. by which it is enacted, that
" in all suits upon any writ or writs oi scire facias,
*' the plaintiff obtaining an award of execution af-
*' ter plea pleaded, or demurrer joined therein,
*' shall recover his costs of suit ; and if the plain-
'* tiff shall become nonsuit, or suffer a disconti-
" nuance, or a verdict shall pass against him, the
" defendant shall recover his costs, and have exe-
" cution for the same hy capias ad satisfaciendum^^
'■'• fieri facias'^ or elegit;''"' with a proviso, that the
statute
z F. N. B. 104. 1 Salk. 93. <= 2 Str. 1 198.
264. 1 Wils. 98. d Id. 1075.
^ Sty. Rep. 281. 288. 323. e 3 Bur. 1791.
1 Salk. 262. 4 Mod. 314. S. f Append. Chap. XLII,. §
C. 1 Str. 197. 25, 8cc.
''2Ld.Raym. 1295. Barnes, % Id.% 18, &c.
277.
OF SCIRE FACIAS. 1049
statute shall not extend |o executors or administra-
tors ''. This statute does not apply to a scire facias
to repeal a patent, prosecuted in the name of the
king '. And it has been adjudged, that no costs are
payable by the plaintiff, on moving to quash his own
writ befofe plea ^', or after a plea in abatement '.
The execution in scire facias is governed by the
award of it : And though in the case of bail, the
recognisance be to levy of the lands and chattels,
yet execution of the body by capias ad satisfacien-
dum is good '", even as against bail in error ", by the
course of the court. And a capias ad satisfacien-
dum may be taken out against bail, without any
fieri facias^ or return oi nulla bona". If the princi-
pal be in execution, the plaintiff, it is said, cannot
take the bail '' : But if execution be taken against
the bail, and they pay part, yet the plaintiff may af-
terwards take execution against the principal for the
residue, the bail being previously set at liberty "J;
and this is said to be the constant practice of the
court. Also, if two be bail, although one be in ex-
ecution,
^ 1 Str. 188. 3 East, 202. 25, &c.
i 7 T. R. 367. " 2 SU'. 822. Append.Chap.
k Cas. Pr. C. P. 74. 109. Pr. XLII. § 28.
Reg. 78. 378. Barnes, 431. o 2 Str. 1139.
but see 1 Str. 638. p Cro. Jac. 320.
1 1 Str. 638. >i 1 Sid. 107. and see Cro.
m 1 Rol. Abr. 897. 1 Lev. Jac. 549.
226. Append. Chap. XLil. §
Vol. 11. 3 D
1050 ©F SCIRE FACIAS.
ecution, yet the plaintiff may take the otlier '". And
the recognisance being joint and several, the exe-
cution may be several, though the scire facias was
joint '.
r Cro. Jac. 320. S. C. Bac. Abr. tit. Execu-
s 1 Lev. 225. 1 Sid. 339. ftow, G.
CHAP-
I
I
I 1051 ]
CHAPTER XLIII.
0/*Error.
\ WRIT of error is an original wnty issuing out
of Chancery, and lies where a party is ag-
grieved by any error in the foundation, proceed-
ing, judgment, or execution of a suit, in a court
of record * ; and is in nature of a commission to the
judges of the same or a superior court, by which
they are authorised to examine the record, upon
which judgment was given, and on such examina-
tion to affirm or reverse the same, according to
law ^. This writ is grantable ex clebito Justitice, in
all cases, except in treason and felony *". And it is
said, that wherever a new jurisdiction is erected by
act of parliament, and the court or judge that ex-
ercise this jurisdiction, act as a court or judge of re-
cord, according to the course of the common law,
a writ of error lies on their j'ldgments ; but where
they act in a summary way, or in a new course
different from the common law, there a writ of er-
ror lies not, but a certiorari^. To amend errors in
a court
» Co. Lit. 288. b. « 2 Salk. 504.
>> 2 Bac. Abr. 187. 1 Str. «» I Salk. 144. 263. and see
607. 2 Ld. Raym. 1403. S. C 3 Salk. 148.
Cas. tem/i. Hardw. 346.
1052 OF EHROR.
a court not of record, a writ oi false -judgment is,
the proper remedy ^.
The writ of error is usually brought by the par-
ty or parties against whom the judgment was
given; or it may be brought by a plaintiif to re-
verse his own judgment, if erroneous, in order to
enable him to briiig another action ^. But the de-
fendant is not allowed to bring it, contrary to his
own agreement, or that of his attorney^: And
where executors, against whom a scire facias had
been sued out, to recover damages assessed on an
interlocutory judgment against their testator,
brought a writ of error, after the testator's attorney
had agreed for him that no writ of error should be
brought, the court on motion ordered the attorney
to nonpros the writ of error; for the scire facias
was merely a continuation of the proceedings in
the original action ; and as the testator himself, if
he had lived, could not have brought a writ of er-
ror, in consequence of the agreement, so neither
could his executors \
If an action be brought against 2i feme-covert^ as
2i feme-sole^ and she plead to issue as a feme-solcy
and judgment be given against her, upon which she
is taken in execution, she and her husband may
join
e Co Lit. 288. b. Finch, L. s 2 T. R. 183.
484. 3 Blac. Com. 406. »» 1 T. R. 388. ^;zre,983, 4
f 3 Bur. 1772.
OF ERROR. 1053
join in bringing a writ of error ; for otherwise the
husband might be prejudiced by losing the society
of his wife, and her care in his domestic concerns,
and he hath no other means to help himself' : So
if an action be brought against a feme-covert and
others, they may ail join with the husband in
bringing a writ of error ''.
It is a general rule, that no person can bring a
writ of error to reverse a judgment, who was not
party or privy to the record, or prejudiced by the
judgment, and therefore to receive advantage by
the reversal of it ^ Hence it has been determined,
that if there be judgment, against the principal^
and also against the bail^ the principal cannot have
error on the judgment against the bail'", nor the
bail on the judgment against the principal ", nor
can they join in a writ of error ° ; for these ai*e dis-
tinct judgments, and affect different persons.
On a judgment against ^e-uera/ parties, the writ of
error must be brought in all their names •", provided
they are all living, and aggrieved by the judgment;
for
i 1 Rol.Abr. 748. Sty. Rep. 408. 481. 561. 1 Ld. Raym.
Q54. 280. 328, Carth. 447. S. C.
k 1 Rol. Abr. 748. o Pahn. 567. Cro. Car. 300.
• 2 Bac. Abr. 195. 408. 574, 5.
"> Id. 199. 1 Rol. Abr. 748, p 6 Co. 25. Cro. Eliz. 648,
9. Cro. Car. 408. and see Lil. 9. S. C. Yelv. 4. Cro. Eliz.
Em. 378. and the cases there 892. S. C. Carth. 7, 8. 3
cited. Mod. 134. S. C. 1 Ld. Raym.
" 2 Leon. 101. Cro. Car. 71. 151. 5 Mod. 1669.
1054
OF ERROR.
for otherwise this inconvenience would ensue, that
every defendant might bring a writ of error by him-
self, and by that means delay the plaintiff from his
execution for a long time, and from having any be-
nefit of his judgment, though it might be affirmed
once or oftener "^ : And if the writ of error, in such
case, be brought by one or more of the defendants
only, it may be quashed ^ But where judgment is
given against several parties, and one or more of
them die, the writ of error may be brought by the
survivors *^. And in trespass against three, if there
be judgment by default against two of them, and
the third plead to issue, and it be found for him,
the two only may bring a writ of error ; for the par-
ty in whose favour the judgment was given, can-
not say that it was to his prej udice '. So if a writ
of error l:!e brought in the names of several par-
ties, and any one or more of them refuse to appear
and assign errors, they must be su?n?noned and
severed; after which the Avrit of error may be pro-
ceeded
Carth. 36". Comb. 354. Holt,
54. S. C. 1 Ld. Raym. 244.
Carth. 404. Comb. 441. 1
Salk. 319. 5 Mod. 338. S. C.
1 Ld. Raym. 328. 2 Ld.
Raym. 870. 1 Salk. 313. S.C.
6 Mod. 40. I Str. 234. 2 Ld.
Raym. 1403. 1 Str. 606. 8
Mod. 305. 316. S. C. 2 Ld.
Raym. 1532. Cas. temfi.
Hardw. 135, 6. 1 Wils. 88. 3
Bur. 1792. 2 T. R. 737.
n Carth. 8. and see 3 Bur.
1789.
rPalm. 151. 1 Str. 234.
s 1 Lev. 210. Hob. 70. I-
Str. 683. 2 Str. 892. 1110.
Cowp. 425. 2 Blac. Rep.
1067. but see Sty. Rep. 190.
.T Salk. \\&.semb. contra.
OF ERROR. 1055
ceeded in by the rest alone ' : And where a writ of
error was brought in the names of two executors,
and one would not join in assigning errors, the
court gave the other time to assign them, till there
could be summons and severance ".
On a writ of error brought against two execu-
tors, one only appeared, and sued out a scire facias
quare execiitionem non^ upon which the judgment
was affirmed for both executors ; and upon a se-
cond writ of error, the court held, that a scire fa-
cias quare execiitionem non is only to bring in the
plaintiff in error to assign his errors ; and as he
came in upon it, and assigned his errors, he waived
any objection, and admitted the one executor to
be sufficient to call upon him to assign them ; and
the court are not to presume that the other execu-
tor is alive : And though a writ of error by one
alone, upon a judgment against two, be not good,
yet that is upon account of the inconvenience that
would arise, from a perpetual delay of execution,
if every defendant might bring a writ of error by
himself; but that reason docs not hold in this case,
where the executors are defendants in error, and
not plaintiffs ''.
A writ
t Yelv. 4. Cro. Eliz. 892. Hardw. 135, 6.
S. C. Cro. Jac. 1 17. Carth. 7, " 2 Str. 783.
8. 3 Mod. 134. S. C. 6 Mod. ^' 3 Buv. 1789.
40. 1 Str. 234, Cas. temp.
1056 or £RROK.
A writ of error lies for some error or defect in
substance, tha.t is not aided, amendable, or cured
at common law, or by some of the statutes of
amendments or jeofails ' . And it lies to the same
court in which the judgment was given, or to
which the record is removed by writ of error, or
to a superior court. If a judgment in the King's-
Bench be erroneous, in matter of^ac^ only, and not
in point of law, it may be reversed in the same
court, by writ of error coram nobis, or qme coram
nobis resident "", so called from its being founded
on the record and process, which are stated in the
writ to remain in the court of the lord the king,
before the king himself- ; as where the defendant,
being under age, appeared by attorney, or the
plaintiff or defendant was a married woman, at the
time of commencing the suit, or died before ver-
dict, or interlocutory judgment : for error in fact
is not the error of the judges, and reversing it is
not reversing their own judgment''. So upon a
judgment in the King's-Bench, if there be error in
the process, or through the default of the clerks, it
may be reversed in the same court, by writ of er-
ror
■>*■ ^n(e, 826, Sec. ror is called a writ of error co-
^ Append. Chap. XLIII. § ram vobis, or qux coram vobis
2, 3. resident.
y In the Common-Pleas, '^ 1 Rol. Abr. 747. Cro.
the record and process being Eliz. 105, 6. 1 Sid. 208. S
stated to remain before ti.e Salk. 145, 6, 7.
king's justices, the writ of er-
OF ERROR. 1057
ror coram nobis ^ : But if an erroneous judgment be
given in the King's-Bench, and the error lie in the
judgment itself, and not in the process, a writ of
error does not lie in the same court upon such
judgment ^
If a writ of error returnable in the King's-Bench
abate, after removal of the record, by death or
otherwise *^, or be quashed for any other fault than
variance '^, error coram nobis lies in the same court
to which the record is removed: But formerly, if
there had been a variance between the record and
the writ of error, the record not being removed,
there must have been a new writ '. And error co-
ram nobis lies not in the King's-Bench, after an af-
firmance m that court*, or in the Exchequer-cham-
ber ^. Neither does it lie, for error in fact, in the
Exchequer- chamber \ or House of Lords; for the
record is not removed thither, but only a tran-
script : and it is said to be beneath the dignity of
the House of Lords, that being the supreme judi-
cature, to examine matters of fact \
For
a 1 Rol. Abr. 746. F. N. B. 8 Mod. 305. 316. S. C.
21,Poph. 181. e Godb. 375. but see the
b 1 Rol. Abr. 746. stat. 5 Geo. I. c. 13.
c/rf. 753. Yelv. 6. Cro. f 2 Str. 949. 975. I Salk.
Eliz. 891. S. C. Godb. 375. 357 . Semb. contra.
Latch, 198. S. C. Cro. Car. s I Str. 6yO,
575. h I Uoi. Abr. 755. Com.
d 1 Ld. Raym. 151. Carth. Rep. 597.
367. 5 Mod. 16. 69. S. C. 1 • 3 Salk. 145, 6.
Str. 606. 2 Ld. Raym. 1403.
Vol. IL 3 E
1058 OF ERROR.
For the error or mistake of the judges, in point
of law, a writ of error lies to the King's-Bench,
from the Common- Pleas at JVestminster^y and from
all inferior courts of record in England \ except in
London"", and some other places; and after judg-
ment given thereon, a second writ of error may be
brought, returnable in the House of Lords: but
error lies not from an inferior court, to the Com-
mon-Pleas ".
In London, a writ of error lies from the sheriff's
courts, to the court of hustings of common pleas ;
and from the court of hustings, whether of com-
mon pleas or pleas of land, and also from the law
side of the mayor's court, to a court of appeal held
before commissioners appointed under the great
seal, and from thence immediately to the House of
Lords °. It also seems, that the appeal against de-
crees made on the equity side of the mayor's court,
is immediately to the House of Lords ^
On a judgment given in the Cinque-ports, no writ
of error lies in the King's-Bench or Common-
Pleas ; but by custom, such judgment is exami-
nable by bill, in nature of a writ of error, before
the
t 4 Inst. 22. o Emerson, on the City
^Append.Chap.XLIII. §7. Courts, 27. 76. 97. 2 Bac.
^"2 Bur. 777. Abr. 215.
n Finch, L. 480. Cro. Eliz. p Emerson, on the City
26. 3 Blac. Com. 411. Courts, 86.
OF ERROR. 1059
the lord-keeper or warden of the Cinque-ports^ at
his court of Shepxvay '^. So if a judgment be given
in the court of Stannaries, in the duchy of Cornwall,
for any matters touching the stannaries'^, no writ of
error lies upon this, in the King's-Bench or Com-
mon-Pleas; but an appeal to the wai'den of the
Stannaries, and from him to the Prince of JFales,
and when there is no prince, to the king in coun-
cil*.
A writ of error lies at common law in the King's-
Bench, upon a judgment in a county palatine ; for
though these are superior courts, and have jura
regalia, yet their jurisdiction is derived from the
crown \ And by the 34 & 35 Hen. VIII. c. 26.
^ 113. and 1 JV. &: M. c. 27. errors in judgments,
in pleas real mixed and personal, before the justices
in their great-sessions in Wales, shall be redressed
by writ of error, in the King's-Bench in England.
At common law, no writ of error lay on a judg-
ment from the King's-Bench, except in parliament;
by which means the subject was often disappointed
of his writ of error, either by the not sitting of
parliament, or by their being employed in pub-
lic business, when they did sit ". To remedy this,
it was enacted, by the statute 27 Eliz. c. 8. that
^' where
14 Inst. 224. t Jd. ibid. 4 Inst. 214. 218.
^ 3 Bulst. 183. 223.
s 1 Rol. Abr. 745. « 2 Bac. Abr. 212.
1060 OF ERROR.
" where any judgment shall be given in the King's-
" Bench, in any action of debt, detinue, cove-
*' nant, account, action upon the case, ejectment,
** or trespass,^r^? commenced there^ otherthan such
" only where the Queen shall be party, the plain-
" tiff or defendant, against whom such judgment
" shall be given, may at his election ^ sue out of the
" court of Chancery, a special writ of error, di-
" rected to the chief-justice of the King's-Bench,
*' commanding him to cause the record, and all
" things concerning the judgment, to be brought
" before the justices of the Common-bench, and
" barons of the Exchequer, into the Exchequer-
" chamber, there to be examined by the said
"justices and barons; which said justices, and
" such barons as are of the degree of the coif, or
" six of them, shall have full power and authority
" to examine all such errors as shall be assigned in
" or upon any such judgment, and thereupon to
" reverse or affirm the same, as the law shall re-
" quire, other than for errors concerning the ju-
" risdiction of the court of King's-Bench, or for
" want of form in any writ, return, plaint, bill,
" declaration, or other pleading, process, verdict,
" or proceeding whatsoever; and after the said
*' judgment shall be affirmed or reversed, the said
" record, and all things concerning the same, shall
"be
' 3 Salk. 147.
OF ERROR. 1061
" be brought back into the King's-Bench, that
*' further proceeding may be had thereupon, as
" well for execution as otherwise : But such re-
" versal or affirmation shall not be so final, but
*' that the party grieved shall and may sue in the
" high court of Parliament, for the further and
" due examination of the said judgment, as was
*' then usual upon erroneous judgments in the
** court of King's-Bench."
This statute is confined to the particular actions
enumerated therein; and does not extend to ac-
tions of replevin '% rescous'', scandalum magnatumyy
ravishment of ward ^, or sct7'e facias against bail %
&c. : In these actions therefore, error will not lie
in the Exchequer-chamber, but must be brought
in parliament. In scire facias on a judgment,
against the party or his executors, it seems that
error lies in the Exchequer-chamber, tam in red-
ditionc judicii^ quam in adjudicatione execufionis^ ;
but not upon an award of execution only*". Er-
rors in fact J being examinable in the King's-Bench,
cannot
w 2 Rol. Rep. 434. Cro. Car. 280. 300. W. Jon.
» Moor, 626. Cro.Jac. 171. 325. 1 Ld. Raym. 98. but see
y Cro. Car. 142. W. Jon. Cro. Eliz. 750. contra.
194. Ley, 82. S. C. 1 Sid. •> Cro. Car. 286. 464. Ld.
143. 1 Vent. 49. 2 Ld. Raym. Raym. 98.
954. c 2 Str. 1102. Andr. 287.
^ 2 Rol. Rep. 134. S. C.
* Yelv. 157. Cro. Jac 171,
1062 OF ERROR.
cannot legally be assigned in the Ex chequer- cham-
ber "^ : yet if a release of errors be pleaded in that
court, they may try it, and award a venire^ under
the seal of the court of Exchequer ^
We have already seen, that a writ of error does
not lie in the Exchequer-chamber, upon a judg-
ment of the King's-Bench, in an action commenced
there by origmal writ ; because it is not first com-
menced in the King's-Bench, but is founded upon
the original writ issuing out of Chancery ^. And
for a similar reason, a writ of error lies not in the
ExcJiequer-chamber, upon a judgment affirmed
on error in the King's-Bench, but must be brought
in the House of Lords s. So where a judgment of
the King's-Bench was affirmed in the Exchequer-
chamber, upon which the plaintiff" sued out a scire
facias in the King's-Bench, and had an award of
execution, and afterwards the defendant brought a
writ of error in the Exchequer-chamber, tarn in
redclitio?ie Judicii, quam in adjudicatione executiojiisy
the court held that this writ of error did not lie,
and was no supersedeas of execution^. Upon that
part of the statute, which excepts actions where
the Queen shall be party, it has been questioned,
whether a writ of error lies in the Exchequer-cham-
ber,
^ 2 Lev. 38. 1 Vent. 207. %2 Bulst. 152. and see 1
3 Mod. 194. Com. Rep. 597. Rol. Rep. 264.
c 2 Str. 82 1 . hi Salk. 263. 1 Ld. Raym
f Jnte. 94. 97. 5 Mod. 228. S. C
OF ERROR. 1065
her, upon a judgment in an action of debt qui tarn,
upon the statute of usury '.
From proceedings on the law side of the Exche-
quer in England^ a writ of error lies into the court
of Exchequer-chamber, before the lord- chancellor,
lord-treasurer, and the judges ofthe court of King's-
Bench and Common-Pleas; and from thence it
lies to the House of Peers J : But against decrees
on the equity side of the Exchequer, the appeal is
to the House of Peers in the first instance.
Before the union with Scotland., a writ of erroi-
lay not in this country, upon any judgment in Scot-
land, because it was a distinct kingdom, and go-
verned by distinct laws ^ ; but it is since given by
statute \ from the court of Exchequer in Scotland^
returnable in parliament. A writ of error formerly
lay from the King's-Bench in Ireland, to the King's-
Bcnch in England, and from thence to the House
of Lords; but now, by the statute 23 Geo, HI.
c. 28. \ 2. " no writ of error or appeal shall be re-
" ceived or adjudged, or any other proceedings
" had, by or in any of his majesty's courts in this
" kingdom, in any action or suit at law or in
" equity, instituted in any of his majesty's courts
"in
i Doug. 350. I. 3.
J 3 Blac. Com. 411. and ^ Show. P. C. 33.
see 2 Bac. Abr. tit. Ermr^ i 6 Ann. c. 26. § 12.
1064 OP ERROR-
" in the kingdom of Ireland; and all such writs,
" appeals, or proceedings shall be, and they are
" thereby declared null and void, to all intents and
*' purposes." Since the union with Ireland how-
ever, a writ of error lies from the superior courts in
that country, to the House of Lords.
No writ of error can be brought but on a judg-
ment, or an award in nature of a judgment ; for the
words of the writ are, si judicium I'edditum sit, Sec."
And hence it was formerly holden, that a writ of er-
ror could not be brought before judgment given;
and if tested before, it was no supersedeas'''. But
it seems to be now agreed, that a writ of error,
bearing teste before judgment, is good, so as the
judgment be given before the return of it ; and this
is the usual course for preventing execution °: Still
however, if the writ of error be returnable before
judgment, it may be quashed''.
After judgment, twenty years ar& allowed for
bringing a writ of error : And by the statute 10 &
W W. III. c. 14. " no judgment in any real or
" personal action, shall be reversed or avoided,
" for any error or defect therein, unless the writ
*' of error be brought, and prosecuted with effect,
*' within twenty years after such judgment signed,
" or
">Co.Lit.288.b. 308. S. C. 1 Str. 632. 1 T.
" 2 Bac. Abr. 199. 1 Rol. R. 279.
Abr. 749. Moor, 461. P 2 Ld. Raym. 1179. 1531.
"March, 140. 1 Vent. 96. 2 Str. 834. 891.
255. 1 Mod. 112. 3 Keb.
OF ERROR. 1065
•'• or entered of record." This statute has the usual
exceptions, in favour of m^Sints^Jeme-coverts, per-
sons no7i compos mentis^ imprisoned, or beyond the
seas. And the court on motion would not quash a
writ of error, though brought twenty-nine years af-
ter the judgment; for this would be to deprive the
party of the benefit of replying the exceptions in
the statute ''.
A writ of error, like a scire facias^ is considered
as a new action ; and therefore upon bringing it, the
defendant in the original action may change his at-
torney, without obtaining a judge's order for that
purpose \ To obtain a writ of error, application
must be made by the attorney to the cursitor of
the county where the venue was laid in the origi-
nal action ; who will make out the writ, in ordinary
cases, as a matter of course, upon a precipe ^ or
note of instructions, containing the names of the
parties, the nature of the judgment, the court
wherein it was given, and the time when the writ
is intended to be returnable. In parliament, there
must be a warrant for the writ of error from the
crown, which is procured by the cursitor '; and
where it is against the king, the jiat of the attor-
ney-general must be obtained, upon a petition, set-
ting forth the errors intended to be assigned, ac-
companied
qSStr. 837. 1.4.8.
^ZT. R.337. t Imp. K. B. 705.
' Append. Chap. XLIII. %
Vol. II, 3F
1066 of ERROR.
companied with a certificate from counsel, that
they are real errors. This practice was anciently
used% as a mark of decency and respect; and
though it appears to have been laid aside in the last
century ^, yet it has since been revived.
The writ of error runs in the king's name; and,
except in a county palatine, should be directed to
the chief-justice, or other officer who has the cus-
tody of the record; as, in the Common-Pleas, to our
right trusty and well-beloved Richard Pepper Lord
Alvanley^ our chief-justice of the Bench '" ; in the
King's-Bench, to our right trusty and well-beloved
Edward Lord Ellenboroughy our chief-justice as-
signed to hold pleas in our court before us "; or, if
it be a writ of error coram ?iobis, to our justices as-
signed to hold pleas before us ^' : and the writ of er-
ror in parliament, is directed to the chief-justice of
the King's-Bench, upon a judgment of that court ^.
In the county palatine of Lancaster, the writ of er-
ror is directed to the Chancellor or his deputy,
commanding him that he give in charge to the jus-
tices at Lancaster, that they send to him in his
chancery, the record, &c. and the writ which came
to them thereupon, and that he transmit the record^.
To
" Sav. 131. 213.
^ 1 Salk. 264. y Lil. Ent. 220. 231, 2.
>^ L. P. E. 67, 8. 78, 9. ^ Jd. 254.
Lil. Ent. 222. 268. ^ 2 Cromp. 344.
^L. P. E. 167. Lil. Ent.
OF ERROR. 1067
To reverse a fine, levied in the Common-Pleas, the
writ of error is directed to the Chirographer, for
the transcript of the note of the fine, and writs of
covenant ^', or to the custos brevium, for the tran-
script of the foot of the fine " : And in inferior
courts, the writ of error should be directed to the
judges before whom the judgment was given \
In point of Jorm, the body of the writ of error,
when returnable in the King's-Bench, on a judg-
ment of the Comrnon-Pleas, runs thus: " Because
in the record and process, and also in the giving of
judgment, in a plaint which was in our court, be-
fore you and your companions, our justices of the
bench, by our writ, between A. B. and C. D. late
of, &c- of a plea of, &c. (describing the nature of
the action,) manifest error hath intervened, to the
great damage of the said C. D. as from his com-
plaint we are informed; we being willing that the
error, if any there be, should in due manner be cor-
rected, and full and speedy justice done to the par-
ties aforesaid in this behalf, do command you, that
if judgment be thereupon given, then you do dis-
tinctly and openly send to us, under your seal, the
record and process aforesaid, with all things touch-
ing/the same, and this writ, so that we may have
them on, &c. (ageneral return-day) wheresoever we
shall
«» Lil. Ent. 280. <» Godb. 44.
c Id. 282.
1068 OF ERROR.
shall then be in England, that the record and pro-
cess aforesaid being inspected, we may cause to be
further done thereupon, for correcting that error,
what of right, and according to the law and cus-
tom of England, ought to be done *^." This writ
consists of two parts, first, a certiorari to remove
the record; and secondly, a cojnmission to examine
it^: But in a writ of error coram nobis, the certio-
rari part being unnecessary is omitted, and the writ
contains only a commission to examine errors ^.
Where the writ of error is returnable in the Ex-
chequer-chamber, it begins by reciting the statute
27 Eliz. c. 8. and brings the case within that sta-
tute, by stating that the error in no wise concerns
the king, or the jurisdiction of the court of King's-
Bench, or any want of form in any writ. Sec. ^. In
the House of Lords, the writ of error differs in
point of form, accordingly as it is brought on a
judgment originally given in the court of King's-
Bench \ or on a judgment affirmed there \ or in
the Exchequer-chamber \ And where the error is
supposed to be as well in giving the judgment, as
in awarding execution thereon, the writ of error is
said
e Append. Chap. XLIIL § ^ Id.^ 9.
5, &c. i Jd. § 10.
f 1 Str. 607. J /rf. § II.
g Append. Chap. XLIII. § ^ Id.\\2.
2,3.
OF ERROR. 106y
buid to be ta7n quam, or in the words of the writ,
tarn 171 redditione judicii, quam in adjudicatione ex-
ecutionis^.
The teste of the writ of error is the day of suing
it out; and in the King's-Bench, it is returnable
2ibicunque, &:c. on the first or last general return of
the term "* : In the Exchequer-chamber, it is re-
turnable before the justices of the Common-bench,
and barons of the Exchequer, of the degree of the
coif, in the Exchequer- chamber, on a particular
return-day": In the House of Lords, when the
parliament is sitting, the writ of error is made re-
turnable before the king in his present parliament,
immediate^ or without delay; because that court,
during the session of it, is supposed to sit continu-
ally, and has no vacation, and it is for the honour of
that high tribunal to be immediately attended,
that tney may do the speedier justice °: After a
prorogation, the writ of error is returnable before
the king in his parliament, at the next session •'; or
after a dissolution, at the ntyit parliament ^ specify-
ing the day when it is to be holden '^. And it is ne-
cessary, in all cases, that there should be fifteen
days between the teste and return of a writ of error.
The
' 2 Str. 1055. Cas. temfi. " Lil. Ent. 248. 254.
Hardw. 345. S. C. p Id. 292.
'" L. P.E. 33. q 1 Vent. 31. 266. \ Mod.
*", « Id. 167. Lil. Ent. 213. 106.
1070 OF ERROR.
The writ of error being made out, is sealed m
Chancery, either on a general seal-day, or, which is
somewhat more expensive, at a private seal ; and af
ter being obtained from the cursitor, it should be
taken to the clerk of the errors of the court, in which
the judgment was given "■, who will alloiv the same,
on being paid his fees, and make out a certificate
or note of the allowance ^ ; a copy of which should
be served on the attorney for the defendant in er-
ror: this is usually done at the time of taxing costs,
and at the same time, the original certificate should
be shewn him. The writ of error coram nobis is al-
lowed by the master^in open court ' ; and the rule
of allowance " being drawn up by the clerk of the
rules, a copy of it is served on the attorney for the
defendant in error.
A writ of error, sued out before final judgment,
continues in force during the whole term in which
it is returnable ^ : and if final judgment be signed
at any time during that term, it is -a supersedeas or
stay of execution, from the time of signing it '"y
provided bail, when requisite, be put in thereon,
within four clear days after final judgment is sign-
ed.
"" R. E. 36 Car. II. and see in vacation by the secondary.
R. T. 20 Car. I. K. B. ^ Append. Chap. XLIII. §
* Append. Chap. XLIII.§ U.
13. ^ Barnes, 196, 7,8.
t L. P. E. 77. but see 2 ^^ I Str. 632. and see 2 Bos.
Cromp. 394. where it is said, 8c Pul. 137.
that this writ mav be allowed
OF ERROR. 1071
ed "". And the court have gone so far, that if a writ
of error be sued out, and the plaintiff do not sign
final judgment, till a subsequent term after the re-
turn of the writ, in order to avoid the effect of it,
and then take out execution, the court will set it
aside ^ .
After final judgment, and before execution exe-
cuted, a writ of error is generally speaking a super-
sedeas of execution, from the time of its allow-
ance ^, provided bail be put in and perfected in due
time*; and the allowance is notice of itself*: Or
if the defendant, before the allowance, have notice
of the writ of error being sued out, and delivered to
the clerk of the errors, it is from the time of that
notice a supersedeas ". And a writ of error is so ab-
solutely a supersedeas, that after it is allowed, the
plaintiff cannot take out a capias ad satisjaciendum
against the principal, and get it returned non est
inventus, in order to proceed against the bail*^; nor,
if
X 2Str. 781. IT. R. 279. 4 ^ i Salk. 321. 1 T. R. 28o'.
T. R. 121. but in order to bring theattor-
y IT. R. 280. ney into contempt, for pro-
2 Vend 31. 1 Salk. 321. ceeding after the allowance,
Willes, 271. Barnes, 205. S. he must have had actual no-
C. 1 Bur. 340. 1 gos. & Pul. tice. Id. ibid. I Bur. 340.
478. 2 Bos. & Pul. 370. 2 M Salk. 321. 6 Mod. 130.
East, 439. 2 Ld. Raym. 1260. S. C. IT.
a 2 Str. 781. 1 T. R. 279. R. 280. Say. Rep. 51.
Ante, 470, I. and see R. E. d 2 Str. 867. Fitzgib. 175. 1
36 Car. II. K. B. M. 28 Car. Barnard. K. B. 334. S. C. 2
II. C. P. Ld. Raym. 1567. S. C
1072 OF ERROR.
if the capias ad satisfaciendum be sued out before,
can the plaintiff call for a return of it, after the al-
lowance of a writ of error % even though it has pre-
viously lain four days in the office *^: But in such
case, the capias ad satisfaciendum may be returned,
so as to fix the bail, after the writ of error is deter-
mined 2. If the defendant bring a writ of error, and
the plaintiff, as he may, bring an action on the judg-
ment, and recover, he cannot sue out execution on
the second judgment, till the writ of error be de-
termined^ But where it is apparent to the court,
that a writ of error is brought against good faith ',
or for the mere purpose of delay '', or it is returna-
ble of a term previous to the signing of final judg-
ment ', or bail when requisite is not put in and per-
fected in due time "", it is not a supersedeas.
An execution being an entire thing, cannot be
superseded after it is once begun : Therefore if a
writ of execution be executed, before a writ of
error allowed or notice, it may be returned after-
wards ; and the utmost length of time the law al-
lows for executing a writ, is the day whereon it
is returnable, and it is not executable any longer
that
^2 Str. 1186. 1 Wils. 16. semb. contra.
S. C. 1 East, 662. i 2 T. R. 183.
fST. R. 390. k4 T. R. 436. 5T. R.ri^k
g 1 Wils. 269. But see ./^nre, 471.
Barnes, 83, contra. ' Barnes, 197, 8.
f^ 3 T. R. 643. 4 Bur. 2454, '^^ 2 T. R. 44.
S. P. but see Barnes, 202, ?•.
OF ERROR. 1073
that day than the court sits : So long as it is execu-
table, but not executed, the allowance of a writ of
error is a supersedeas, but not afterwards ". Judg-
ment in a cause was signed on the 30th of April,
and the plaintiff on that day sued out a writ ofjieri
facias; afterwards a writ of error was allowed, and
served on the agent in town on the 3d oiMay, and
on the plaintiff 's attorney in the country and un-
der-sheriff on the 5th oi May; the sheriff entered
on the same day, but after notice of the allowance
of the writ of error: No bail in error was put in;
and the court upon that ground held, that the writ
of error became an absolute nullity, and was no*w-
persedeas or stay of execution : But they said, that
if the writ of error had been followed up immedi-
ately, by the plaintiff in error regularly putting in
bail, it would have operated as a supersedeas. The
party therefore taking out execution, after the al-
lowance of a writ of error, and before bail put in,
does it at his peril ; for if the writ of error be re-
gularly followed up by bail, the execution will be
set aside **.
I shall next proceed to inquire, in what cases bail
is requisite on a writ of error, and when, where,
and
"1 Salk. 321. and see Barnes, 205, S. C.
1 Vent. 255. Willes, 271. ° 2 T. R. 45.
Vol. II. 3G
1074 OF ERROR.
and how it should be put in, excepted to, and jus-
tified. No bail in error was required at common
law; so that the defendant, by bringing a writ of
error, might have delayed the plaintiff of his exe-
cution, without giving any security, either for the
prosecution of such writ, or for the payment of the
debt or damages recovered by the former judg-
ment, in case it should be affirmed, or the writ of
error should be discontinued, or the plaintiff in er-
ror nonsuited therein. The inconvenience of this
was very early felt ; and in order to guard against
it, the court of King's-Bench, so long ago as in the
reign of Henry the seventh p, would not allow a
writ of error in parliament, until some error was
shewn to them in the record, lest it should be
brought on purpose to delay execution: And, with
a like view, it was ordered by the justices of the
Common-Pleas, in the reign of Queen Elizabeth^
that the clerk of the treasury for the time being
should not make a supersedeas upon any writ of er-
ror, to reverse or affirm any judgment given in that
court, upon any verdict, demurrer in law or con-
fession, until some manifest or pregnant error
therein should be notified by the party that sued
the writ of error, or some of his counsel, unto the
justices
? 1 Hen. VII. 19. 1 Vent. 266.
OF ERROR. 1075
justices of the bench, or to one of them at the
least \
And still further to avoid unnecessary delays of
executions, it is enacted by the statute 3 Jac. I. c.
8. (made perpetual by the 3 Car. I. c. 4. ^ 4.)
that no execution shall be stayed or delayed,
upon or by any writ of error, or supersedeas
thereupon to be sued, for the reversing of any
judgment in any action or bill of debt, upon any
sing le- bond ^or debt, or upon any obligation with
condition for the payment of money only^ or upon
any action or bill of debt for rent^ or upon any
contract^ sued in any of the courts of record at
Westminster^ or in the counties palatine of Ches-
ter^ Lancaster or Durham, or the courts of great
sessions in Wales; nor (by the 19 Geo. III. c.
70. ) for the reversingof any judgment given in any
inferior court of record, where the damages'" are
under ten pounds; unless the person or persons,
in whose name or names such writ of error shall
be brought, with two sufficient sureties, such as
*' the
1 R. E. 23 Eliz. and see R. often prevails, of bringing
M. 6 & 7 Eliz. If this rule writs oF error for the mere
were still acted under, and purpose of delay.
some such rule were made in •■ Qu. as to the damages here
the King's-Bench, or if the de- referred to ; whether they ai'c
fendant upon suing out a writ the damages laid in the declara-
of error, were obliged to bring tion, or the damages recover-
the debt and costs into court, ed ; and if the latter, whether
it might have a tendency to they are with or withont
prevent the practice, that too oosts .'
1076 OF ERROR.
*' the court wherein the judgment is given shall al-
*' low of, shall first be bound unto the party for
*' whom the judgment is given, by recognisance
" to be acknowledged in the same court, in double
" the sum adjudged to be recovered by the former
" judgment, to prosecute the said writ of error
" with effect, and also to satisfy and pay, if the said
*' judgment be affirmed, or the writ of error non-
" prossed, all and singular the debts damages and
'' costs adjudged upon the former judgment, and
" all costs and damages, to be awarded for the de-
" laying of execution."
This statute is confined to the particular actions
enumerated therein ; and does not extend to ac-
tions on the case upon bills of exchange % &c. but
it extends, in the actions specified, to all manner of
judgments, by default, upon demurrer, or nul tiel
record^ as well as after verdict. In actions of debt
on bond, conditioned for the payment oi money
only^ the statute has been construed to extend, not
only to cases where the sum was originally certain,
and payable absolutely by the condition, without
referring to any other instrument; but also to
cases, where the sum was originally uncertain, but
afterwards reduced to a certainty ; as debt on bond
conditioned for the payment of so much money as
J. S.
8 2 Keb. 234.
OF ERROR. 1077
J. S. should declare to be due on an account*^; or on a
bottomree bond, by which the money was payable
upon a contingency, which has happened"; or where
the bond was conditioned for the payment of a sum
of money mentioned in certain indentures ''j &c.
But the statute does not extend to actions of debt
on bond, conditioned for the performance of cove-
nants "^, or of an awards &c. even though one of
the covenants be for the payment of money, and
the action be brought for the non-performance of
that covenant ^. But in an action of debt on bond
conditioned for the performance of covenants, if
the defendant let judgment go by default, without
craving oyer of the condition, and after bring a
writ of error, it is said that in the King's-Bench,
he must put in bail thereon ; because it does not
appear to the court upon the record, that the con-
dition was for performance of covenants ^. In debt
on a general bond of indemnity, bail is not requir-
ed, on bringing a writ of error after judgment by
default : But where a man having entered into a
bond,
t 1 Lev. 117. 1 Keb. 613. Barnes, 78. 98.
S. C. ^1 Bulst. 54.
" 1 Str. 476, and see 6Mod. "Carth. 28. 1 Show. 14. S.
38.butsee 1 Show. 14. Comb. C. 2 Keb. 131. S.P.
lOS. S. C. 7 T- R. 450. y 2 Cromp. 363. but see
V 2 Str. 959. 2 Barnard. K. Barnes, 72. C.P. semb. contra.
B.389. Kelynge, 181. S. C.
1078 ©F ERROR.
bond, as surety for another, to pay a sum of money
to a third person, took a counter-bond for payment
of the money, by way of indemnity, the court held
this to be a case within the statute, and conse-
quently that bail in error was necessary ''.
The condition of a bond was, to pay for so much
beer as the obligee should deliver to J. S. not ex-
ceeding 100/. ; and after judgment upon demurrer,
the court held that no bail was requisite ^. But in a
subsequent case ^^ where a bond was given by a
third person, as collateral security for a debtor's
paying his creditors fifteen shillings in the pound,
upon the liquidated amount of his debts, the court
held this to be a bond with condition for the pay-
ment of money only ; and that its being payable by
instalments made no difference. In the former case,
the court seem to have considered the statute as
introductive of a new law, in restraint of the reme-
dy by writ of error, and therefore that it should be
construed strictly, and not extended by equity to
cases out of the letter of it: But in the latter case,
they appear to have holden, that the statute was of
a remedial nature, and ought to receive a liberal con-
struction, for the benefit of the party, whose exe-
cution would otherwise be stayed by the writ of
error,
^ Com. Rep. 321, 2. 10 S. C.
Mod. 281. co7itra. ^ 2 Bur. 746.
■^2 Str. 1190. 1 Wils. 19,
OF ERROR. 1079.
error, and particularly as writs of error are fre-
quently brought for the mere purpose of delay.
In actions upon contracts, the statute is confined
to cases, where there was originally a specific con-
tract for a sum certain; and it does not extend to
actions of debt on a promissory note % or on the
common counts for work and labour, and goods
sold and delivered '^, &c. or upon an account-sta-
ted ^ ; nor to an action of debt upon an award, when
fhe arbitrators have directed several controversies
to be settled by the payment of one sum "". Neither,
for a similar reason, is bail in error required in an
action of debt on judgment^; nor, as it should
seem, in an action of debt upon a recognisance of
bail ^. And it seems, that if there be one count in
the declaration, on which judgment is entered, on
a cause of action for which debt would not lie at the
time of the statute of James, no bail in error is re-
quired ^ But if judgment be affirmed, on a writ of
error, in the King's-Bench '\ or Exchequer-cham-
ber \ new bail must be given, on bringing a writ
of error in parliament; for the first recognisance
does
c 2 East, 359. 506. S. C
d 1 Bos. & Pul. 249. g 3 Bur. 1566. Barnes, 194.
e Yelv. 227. 2 Bulst. 53. S. but see 2 Blac. Rep. 1227.
C. 1 Lev. 117. 1 Show. 15. ^ 2 East, 359.
S. C. cited. 3 Salk. 147. 7 T. i 1 Salk. 97. 2 I.d. Raym.
R. 449. 2 East, 359, 840. 7 Mod. 120. S. C.
f 3 Bur. 1548. 1 Blac. Rep. k 1 Str. 527.
1080 OF ERROR.
does not include the costs to be assessed in the
House of Lords, and therefore a new recognisance
must be given, within the intent of the statute;
and it is not the business of the court where the
judgment is affirmed, to examine whether bail was
put in upon the first writ, for the want of that does
not hinder the prosecution of the writ of error,
but only makes it no supersedeas ^
The before-mentioned statute was extended to
other actions, by the 13 Car. II. stat. 2. c. 2. § 9. by
which it is enacted, " that no execution shall be
*' stayed, in any of the courts mentioned in the sta-
" tute 3 Jac. I. , by any writ or writs of error, or^w-
" persedeas thereupon, after verdict and judgment,
" in any action of debt grounded upon the statute
" 2 & 3 Edxv. VI. c. 3. for not setting forth tythes,
*' nor in any action upon the case, upon any pro-
'* mise for payment of money, actions sur trover,
** actions of covenant, detinue, and trespass, unless
" such recognisance, and in such manner, as by the
** former act is directed, shall be first acknow-
*' ledged in the court where the judgment is given."
And by the 16 & 17 Car. II. c. 8. ^ 3. (made
perpetual by the 22 & 23 Car. II. c. 4.) " no exe-
" cution shall be stayed, in any of the lastmen-
" tioned courts, by writ of error or supersedeas
" thereupon, after verdict and judgment, in any ac-
" tion personal whatsoever, unless a recognisance,
« with
1 1 Salk. 97.
OF ERROR. 1081
'* with condition according to the statute 3 Jac. I.
*' shall be first acknowledged, in the court where
*' such judgment shall be given. And further, that
** in writs of error to be brought upon any judg-
" ment after verdict, in any writ of f/oif /?r, or in any
" action of ejectione jirma, no execution shall be
" stayed, unless the plaintiff or plaintiffs in such
" writ of error shall be bound unto the plaintiff in
" such writ of dower ^ or action of ejectione Jirm^^
*' in such reasonable sum as the court to which
" such writ of error shall be directed shall think fit,
" with condition, that if the judgment shall be af-
" firmed, or the writ of error discontinued, in de-
" fault of the plaintiff or plaintiffs therein, or the
" said plaintiff or plaintiffs be nonsuited in such
*' writs of error, that then the said plaintiff or plain-
" tiffs shall pay such costs, damages, and sum and
'* sums of money, as shall be awarded upon or af-
" ter such judgment affirmed, discontinuance, or
"*' nonsuit."
And to the end that the same sum and sums and
damages may be ascertained, it is further enacted,
that " the court wherein such execution ought to
"^e granted, upon such affirmation, discontinu-
" ance or nonsuit, shall issue a writ to inquire as
" well of the mesne-profits, as of the damages by
" any waste committed, after the first judgment in
" doweTj or in ejectione Jirma; and upon the return
^' thereof, judgment shall be given and execution
** awarded,
Vol. II. 3H
1082 OF ERROR.
*' awarded, for such mesne-profits and damages,
" and also for coats of suit '"."
The two last-mentioned statutes are confined to
judgments after verdict; and do not extend, like
the former, to judgments by default, upon demur-
rer or mil tiel record: Therefore upon these latter
judgments, a writ of error is a sup(frsedeas\\\Ci\fd\x\.
bail, in such actions as are not enumerated in 3 Jac.
I. But it has been determined, that a scire facias
against bail is a personal action, within the 16 &
17 Car. II. c. 8 " . In this latter statute there is a
proviso^ " that it shall not extend to any writ of er-
'' ror, to be brought by any executor or admini-
" strator; nor unto any action popular, or other ac-
" tion brought upon any penal law or statute, ex-
"' cept actions of debt for not setting forth tythes;
" nor to any indictment, presentment, inquisition,
^' information, or appeal." It has however been de-
termined, that if judgment be given against an ex-
ecutor or administrator de bonis propriisy he shall
put in bail, in cases where it would be required of
other persons ° : and though an executor or admi-
nistrator be not compellable to give bail in error,
yet if he do, the court may take it, and the rep^g'-
nisance will be binding p.
The
^ §4. and see 2 H. Blac. 2 Keb. 295. 371. S.C-
286, 7. p 2 Str. 745. 2 Ld. Raym.
n 2 Blac. Rep. 1227. 1459. S. C.
5 1 Lev. 245. 1 Sid. 368,
i
OF EfiROR. 1083
The statutes requiring bail in error do not ex-
tend to tlie writ of error coram nobis '^ ; which is or
is not a supersedeas of execution, according to cir-
cumstances. Where a writ of error abates by the
act of God, as by the death of the parties "■, or
chief-justice % or by the act of law, a second writ
of error is a supersedeas of itself, without motion
or leave of the court. And it is said, that if a writ
of error be brought in the same court, after abate-
ment or discontinuance of a writ of error coram 710-
6is, no bail is requisite, because none was required
©n the former writ of error \ But this must be un-
derstood, where the writ of error coram nobis is
brought after an abatement by the act of God, or
of the law; for where a writ of error is quashed in
the King's-Bench for insufticiency, a writ of error
eoram nobis is noX. a supersedeas of itself". In such
case however, the court on motion will order, that
upon the plaintiff in error putting in and justifying
bail within four days, further proceedings shall be
stayed on the judgment in the original action, un-
til the writ of error be determined " ; which is also
the course, upon a wHt of error coram nobis for er-
ror in fact. And a like order was made, where a
second writ of error was quashed for insufficiency;
for
1 2 Cromp. 394. *2Cromp. 396.
«• Latch, 57, 8. 1 Vent. 353. " Garth. 368,9. 1 Ld. Raym.
s 1 Keb. 658. 686. but see 151. S. C. 2 Ld. Raym. 1404.
Barnes, 201. Prac. Reg. 195. 1 Str. 607. S. C. and see a
S. C. Str. 949.
1084 OF ERROR.
for such second writ being void, was as if there
had been none before''. Where a writ of error
abates by the act or defaidt of the party, a second
writ of error is no supersedeas "'" ; as where the
plaintiff in error marries ", or the writ of error is
nonprossed ^. In these cases, the court on motion
will give the defendant in error leave to take out
execution, notwithstanding a second writ of error :
And it seems, that on a writ of error coram nobis y
execution taken out without leave of the court is
irregular ^.
Where bail is required upon a writ of error, it
should be put in within ybwr days after the delivery
of the writ to the clerk of the errors, if it be sued
out after final judgment ^ ; or if it be sued out be-
fore, the bail should be put in within four days af-
ter final judgment is signed ^ ; otherwise the party
succeeding in the original action may take out ex-
ecution, notwithstanding the writ of error '^ : And in
the
" Carth. 370. Bench had four days to put in
^v Latch, 57, 8. I Vent. 353. bail, after the allowance of the
X 2 Str. 880. 1015. writ of error. And see R. T.
y 1 Cromp. 350. 26 8c 27 Geo. II. for the time
z Say. Rep. 166. Barnes, 201. and manner of putting in and
2 Blac. Rep. 1067. Ante, 909. perfecting bail in error, in the
a R. E. 36 Car. II. K. B. Exchequer of Pleas.
R. T. & M. 28 Car. II. 1 Bos. ^2^tv. 781. 1 T. R. 279. 4
£c Pul. 478. C. P. By a for- T. R. 121. 1 Bos. & Pul. 478.
mer rule of E. 16 Car. II. the t 2 T. R. 44.
plaintiff in error in the King's-
ii
OF ERROR. 1085
the Common-Pleas, there is no occasion for a cer-
tificate from the clerk of the errors, that no bail is
put in '^. The bail is put in with the clerk of the er-
rors, who attends to take their acknowledgment,
in the court wherein the judgment was given, or
before a judge of that court; and it seems that they
cannot be put in before a commissioner in the
country ^. The same persons who were bail in the
original action, may become bail in error, if they
are able to justify ^.
In personal actions, it is a rule, founded upon
the statute 3 Jac. L, that the recognisance should
be acknowledged in double the sum adjudged to
be recovered by the former judgment : But upon
error in debt on bond, though the bail are to be
bound in double the penalty recovered, yet by the
course of the court of King's-Bench, it is sufficient
if they justify in double what is really due ^. In
ejectment, the bail must justify in double the
amount of the yearly rent, or value of the mesne-
profits, and costs ''. And the party bringing the
writ
'^ Barnes, 212. double the sum secured by the
e Id. 78. condition, it is sufficient ;
f 8 T. R. 639. though a further sum be due
g 2 Str. 821. 1 Wils. 213. for interest, and costs and no-
and see R. E. 33 Geo. II. in minal damages have been re-
Scac, and 2 Bos. Ec Pul. 443. covered.
C. P. where it was holden, ^ Cas. tem/i. Hardw. 374 4.
that if the bail arc bound in Bur. 2502. Barnes, lO"^.
1Q86 OJF ERROR.
writ of error must join in the recognisance ', except
in ejectment, where it is sujfilicient if the recogni-
sance be entered into by two sureties \
The condition of the recognisance in the Com-
mon-Pleas, on a writ returnable in the King's.
Bench, is, according to the direction of the statute,
that the plaintiff shall prosecute his writ of error
with effect; and, if judgment be affirmed, shall sa-
tisfy and pay the debt, damages and costs recovered,
together with such costs and damages as shall be
awarded by reason of the delay of execution, or
else that they (the bail) shall do it for him ^ On a
writ of error returnable in the Exchequer-cham-
ber, the form of the recognisance is somewhat dif-
ferent ; the bail engaging to pay the sum recover-
ed by the judgment, and such further costs of suit,
sum and sums of money, as shall be awarded for
delay of execution '". And as the engagement of
the bail is absolute, it has been determined, that
they cannot surrender the plaintiff in error " : nor
are they entitled to relief, where he becomes bank-
rupt
i But see 2 Bos. & Pul. 443, k Carth. 12 1. Barnes, 75. 78.
where a recognisance entered * So on error coram nobis.
into by the bail in error, with- Append. Chap. XLIII. § 18.
out the principal, was holden "^ Id. § 19. 2 T. R. 59.
good, on a judgment in c/^(5/ in " R. M. 5 W. & M. (b.)
the common pleas. K. B.
OF ERROR. 1087
rupt, whilst the writ of error is pending" : So if the
bail become bankrupt, pending the writ of error,
and before affirmance, they are not discharged from-
their recognisance ; for till then the debt is contin-
gent, and not proveablc under the commission ''.
When bail is put in, notice thereof should be
given without delay to the defendant in error, or
his attorney '^ ; and if the defendant in error do not
except to the bail for insufficiency, within twenty
days next after such notice, the recognisance shall
be allowed ^ If the bail be not approved of, the
defendant in error may, at any time within the
twenty days, obtain a rule from the clerk of the er-
rors, for better bail ^ ; a copy of which should be
served on the attorney for the plaintift" in error :
And if the bail do not justify, or other bail be not
put in and justified, within four days after notice
of the rule, in ?cnw-timc^ the party succeeding in
the original action may take out execution " : But
the
1 T. R. 624. and see 1 § 16.
Bos. & Pul. 440. where it ATas ' In the King's-Bench, if a
holden, that the bail in error rule for better bail be served in
are not discharged, by taking vacatmt, there is no occasion
their principal in execution. to justify until the next term,
p 2 Str. 1043. Cas. (eni/i. though the practice is other-
Hardw. 262. S. C. ^ wise in the Common-Pleas.
1 Append. Chap. XLIII. § Barnes, 211. and see R. T.
15. 26 & 27 Geo. II. in Scac.
r R. M. 5 W. & M. K. B. " R. M. 5 W. & M. (b). K.
s Append. Chap. XLIII. B. R. M. 6 Geo. 2. § 6. C. P
1088 OP ERROR.
the writ of error still remains, and may be proceed-
ed in; the supersedeas to the execution only being
taken away''. The mode of adding and justifying
bail in error, is the same as in the original action"^ :
And if a person excepted to as bail in error do not
justify, his name may be struck out of the recog-
nisance ''.
Bail in error, when necessary, being complete,
the next step to be taken by the plaintiff in error,
except on a writ of error coram nobisy is to certify
the record ; in order to which a transcript should
be made, and sent with the writ of error and return,
into the court above. When no bail is required,
this is the first step that is taken, after the service
of the allowance of the writ of error. And the
plaintiff in error should regularly cause the tran-
script to be made, (for the defendant cannot tran-
scribe the record ^,) by the time the writ of error
is returnable. If the record be not certified by
that time, the defendant in error may give the plain-
tiff a rule to certify it '^ ; which is an eight-day
rule, obtained from the clerk of the errors in the
Common-
■' 1 Salk. 97. 2 Ld. Raym, ^ Sajr. Rep. 58. 1 Wils. 337.
440. 7 Mod. 120.S. C. S. C.
w For the form of notice of y 1 Wils. 35.
justification, see Append. zCas.?cm^.Hardw.352.Ap-
Chap. XUn. § 17. pend. Chap. XLIII. § 20, 21.
OF ERROR. 1089
Common -Pleas, on a writ of error from that court
returnable in the King's-Bench, or from the clerk
of the errors in the King's-Bench, on a writ of error
returnable in the Exchequer-chamber or House
of Lords ; and when obtained, a copy of it should
be forthwith made, and served on the attorney for
the plaintiff in error *.
In the King's-Bench, on a writ of error to the
Exchequer-chamber, if the writ be returnable the
first return of the term, this rule may be had on
the essoign-day ^. In the House of Lords, tliere is
an order, that upon writs of error, all persons shall
bring in their writs, within fourteen days after the
first day of the session in which such writs shall be
returnable, otherwise they shall not be received,
unless upon judgments given during the session,
upon which the writs shall be brought in within
fourteen days after judgment given *^. And till the
expiration of the time limited for bringing in the
w^rit of error, the defendant in error cannot have
execution '^.
On a writ of error brought on a judgment in the
Common- Pleas, or any inferior court, in an ad-
verse suit, the record itself is supposed to be re-
moved, that it may remain as a precedent and evi-
dence
aL. P. E. 33. c Com. Rep. 420, 21.
«> Id. ibid. J Id. ibid. Bunb. 64, 69,
Vol. IL 3 I
1090 OF ERROR.
dence of the law in similar cases ^. But in the case
of a fine, the transcript only is removed from the
Common- Pleas; for a fine is but a more solemn
acknowledgment or contract of the parties, and is
therefore no memorial of the law, and need only be
affirmed or vacated: If it be affirmed, the con-
tract stands as it was ; if vacated, the justices of the
King's-Bench may send for the fine itself, and re-
verse it; or they may send a writ to the treasurer
and chamberlain, to take it off" the file ^. Besides,
should the record itself be removed, and the fine
affirmed, it could not be engrossed, for want of a
Chirographer, in the King's-Bench ^. This distinc-
tion however is not attended to in practice : for on
all writs of error returnable in the King's-Bench ^^
as well as in the Exchequer-chamber', or House
of Lords '', it is usual to send only a transcript of
the record, and not the record itself.
In an inferior court, on a writ of error returnable
in the King's-Bench, the plaintiff" in error, upon
service of the rule to certify the record, should be-
speak
e 2 Bac. Abr. 202. F. N. B. Harris. Prac. C. P. 434. 2
20. 1 Hen. Vn. 20. 2 Salk. Salk. 565.
565. ' 2 Str. 837. *
f 1 Salk. 337,8. 341. k i Hen. VII. 19, 20. Dyer,
K 2 Bac. Abr. 203. 375. Cro. Jac. 341, 2. 3 Bulst^
h R. M. 28 Car. IJ. C. P. 163, 4. S. C. T. Raym. 5.
OF ERROR. 1091
ipeak the transcript of the proper officer below, and
carry the same into the office of signer of the writs
of the King's-Bench, (a part of whose business is
to receive and deliver out writs of error and certi-
orari, &c.) and there file it, before the second seal;
otherwise the defendant in error may apply, and
get a certificate from the office, that the writ of
error is not returned, and the transcript brought
in; and may thereupon apply to the cursitor, for
a writ de execiitione Jiidicii, directed to the judges
of the court below, commanding them that they
proceed to execution on the judgment, notwith-
standing the writ of error K
In the King's-Bench and Common-Pleas, the
transcript is made by the clerk of the errors, who
acts as clerk to the chief-justice; and in order to
enable him to make it, the defendant in error
should leave with him the record, or copy of the
proceedings; upon which he sends for the tran
script-money, or a part of it, to the plaintiff in er-
ror; and if paid, he proceeds to make the tran-
script, which is examined with the record by the
attorney for the defendant in error'". In the King's-
Bench, on a writ of error to the Ex chequer- cham-
ber, if the writ be returnable on the first return-
day of the term, the clerk of the errors takes the
wholf
i2Cromp. 345. 3Salk. 146 ^ L. P. F.. 34, 5.
109ii or ERROR.
whole of that term to make the transcript ; if on
the last return-day, he takes all the vacation fol-
lowing ".
The transcript being made, examined and paid
for, is delivered over, with the writ of error and
return", by the clerk of the errors of the Common-
Picas, to the signer of the writs in the King's-
Bench; or by the clerk of the errors of the King's-
Bench, to the clerk of the errors in the Exchequer-
chamber, or his deputy P. If a writ of error be
brought in parliament, on a judgment in the
King's-Bench, the chief-justice goes in person, at-
tended by the clerk of the errors, to the House
of Lords, with the record itself, and a transcript,
which is examined and left there; and then the re-
cord is brought back again into the King's-Bench,
and if the judgment be affirmed, that court may
proceed on the record to grant execution : for if
the record itself should be removed, and judgement
affirmed, and the parliament dissolved, tliere could
not
^ L. P. E. 35. the proceedings, for want of
o Append. Chap. XLIII. § his signature. And though
22, 3. In the Common-Pleas, the writ of error requires the
it is usual for the chief-justice record to be sent sub sigillo,
to sign the return ; 1 Sid. yet this is never practised, m
268. Barnes, 201. but this 2 Str. 1063, 4. Cas. temfi,.
does not seem to be absolutely Hardw. 344. S. C.
necessary: At least, the court p L. P. E. 35.
of King's-Bench will not stay
OF ERROR. 1093
not be any proceedings thereupon to have execu-
tion "J.
On a writ of error from the Common- Pleas, the
chief-justice only certifies the body of the record,
which is all that remains in his custody; for origi-
nal and judicial writs remain with the custos bre-
viiim^ and other officers, and are never certified, but
where error is assigned for want of them ^ If the
record be not certified in due time, the defendant
in error may sign a nonpros ^; but no costs are al-
lowed thereon^: And in the Common-Pleas, he
cannot take out execution, without a certificate in
writing from the clerk of the errors, that the plain-
tiff in error has made default, in transcribing the
record into the King's-Bench ".
All the proceedings which have been hitherto
mentioned, are in the court below, where the judg-
ment was given ; but from henceforth they are in
the court above, to which they are removed.
When the transcript of the record is returned
and filed, but not before', the plaintiff in error
may move to amend the writ of error, or the de-
fendant in error to quash it ; or it may abate, ox be
discontinued.
a2Bac.Ahr. 203. t T. R. 17. L.P. E. 31.
«• Cro. Eliz. 84. « R. T. & M. 28 Car. 11. C.
•Append. Chap. XLIII. § P.
78, &c. V Ld. Raym. 329.
1094 OF ERROR.
discontinued. Of these things therefore I shall treat
in their order; and afterwards, of the mode of
compelling the plaintiff in error to proceed and
assign errors.
Great certainty was formerly required, in mak-
ing the writ of error agree with the record ; for as
the writ was the sole authority by which the judges
were empowered to act, they could proceed only
on that record which the writ or commission au-
thorised them to examine ; nor could any defects
therein be amended, before the 5 Geo. I. c. 13. be-
cause by the former statutes of amendment, the
judges were only enabled to amend in affirmance
of the judgment "'. But now, by the above statute,
" all Avrits of error, wherein there shall be any
*' variance from the original record, or other de-
" feet, may and shall be amended, and made
*' agreeable to such record, by the respective courts
" where such writs of error shall be made return-
" able," &c. Upon this statute, it is become
the practice to amend the writ of error, as a matter
of course, without costs''; and it has been amended,
by striking out the name of one of the plaintiffs in
error ^ : But where a writ of error was returnable
before the giving of the judgment on which it was
brought,
w 2 Bac. Abr. 200. Carth. y 1 Str. 683. 2 Str. 892.
368. Fitzgib. 201. 1 Barnard. K. B
^2 Str. 863. 902. 2 Ld. 405. 421. S. C. Cowp. 425. ^
Raym.1587. S. C. Blac. Rep. 1067.
I
I
OF ERROR. 1095
brought, the court on consideration held this to be
such a fault, as was not amendable by the statute ^.
The general ground of quashing a writ of error
is some fault or defect therein, that is not amenda-
ble by the above statute ^; and the application to
quash it ought to be made, either to the court of
Chancery, from whence it issues, or to the court
wherein it is returnable ''. Where there are several
parties, who are aggrieved by a judgment, and the
writ of error is brought by some or one of them
only, the court will quash it ^. But where one of
several parties to a judgment, who is not aggrieved
thereby, joins in bringing a writ of error, we have
just seen, it may be amended*^, by striking out his
name, and stand good for the other parties. And
it may be quashed as to one judgment, upon
which it does not lie, and stand good for another,
upon which it is properly brought^. Costs are
payable in all cases, on quashing a writ of error,
even though none were recoverable in the original
action * ; it being declared by statute ^, " that upon
" the quashing any writ of error, for variance
" from
^ 2 Str. 807. 2 Ld. Raym. 89. 404. 7 Mod. 3. 5 Mod.
1531. S. C. 2 Str. 891. S. P. 397. Carth. 447. Lil. Ent.
a Append. Chap. XLIII. § 225. 290. S. C.
24. f 1 Str. 262. 8 T. R.302.
^ Doug. 350. s 4 Ann. c. 16. § 25. and
^ Antcy 1054. see 2 Str. 83 1. Cas. temji.
d ./fn/e, 1094. Hard W. 137.
« 1 Ld Ravm. 328. 1 Salk
1096 OF ERROR.
*' from the original record, or other defect, the
" defendant in error shall recover against the plain-
" tiff his costs, as he should have had if the judg-
*' ment had been affirmed, and to be recovered in
"the same manner:" which costs include those
of quashing the writ of error \ But where the
defendant in error enters continuances on the ori-
ginal judgment, to defeat the writ of error, the
plaintiff is not liable to costs on quashing it '.
A writ of error may abate by the act of God, the
act of law, or the act of the party. If the plaintiff
in error die, before errors assigned, the writ abates;
and the defendant in error may thereupon sue out
a scire facias quare executionem ?io?i, to revive the
judgment, against the executors or administrators
of the plaintiff in error ^ But if the plaintifl' in
error die, after errors assigned, it does not abate
the writ h In such case, the defendant having joined
in error, may proceed to get the judgment affirm-
ed, if not erroneous; but must then revive it,
against the executors or administrators of the plain-
tiff in error''. And a writ of error does in no case
abate, by the death of the defendant in error, whe-
ther it happen before or after errors assigned: If it
happen before, and the plaintiff' will not assign
errors, the executors or administrators of the de-
fendant
« 2Ld. Raym. 1403. 1 Str. Barnes, 270.
606. 8 Mod. 316. S. C. '^ 2 Cromp.401, 2.
' I Str. 139. 2 Str. 834,
OF ERROR. 1097
fendant in error may have a scire facias quare exe-
ctitionem 7ion, in order to compel him '; or if it hap-
pen after, they must proceed as if the defendant in
error were living, till judgment be affirmed, and
then revive by sch-e facias^ but cannot take out ex-
ecution pending the writ of error*": And in order
to compel the executors or administrators to join in
error, the plaintiff may sue out a scire facias ad an-
^ienclum errores ", either generally or naming
them °. If there be several plaintiffs in error, the
death of one of them abates the writ '' ; but if there
be several defendants in error, and one of them die,
it is otherwise, for they are not named in the writ^i :
In the latter case, the death being suggested on
the roll "", the writ of error proceeds against the
survivors. By the death of the chief-justice, before
he has made or signed his return, the writ of error
becomes ineffectual ^ ; and the defendant in error,
by leave of the court, may take out execution ^ :
but if the return be signed in his life-time, it may
be
1 Yelv. 112, 13. 1 Vent. 34. i' Yelv. 208,9. 1 Salk. 261.
1 Salk. 264. Barnes, 432. L. Carth. 236. S. C. iLd.Raym.
P. E. 114. 244. 1 Salk. 319. S. C.
m L. P. E. 1 14. q Godb. 66. 68. 1 Ld. Raym.
" Yelv. 1 12, 13. 1 Sid. 419. 439. 1 Salk. 264. S. C.
2 Vent. 34. 1 Salk. 264. 1 Ld. >• Lil. Ent. 2! 7.
Raym. 439. S. C. Id. 71. ^ i Keb. 658. 686.
1295. S. P. t Barnes, 201. Prac. Reg.
° 2 Bulst. 230,31. C. P. 195. S. C.
Vol. II. 3 K
1098 OF ERROH.
be made afterwards " ; and though it be neither
made nor signed, 3^ et if the defendant in error take
out execution, without leave of the court, it is irre-
gular "".
It was formerly holden, that a writ of error in
the House of Lords abated by the dissolution of par-
liament '"', or even by the prorogation of it " ; but
afterwards the loi'ds declared, that a writ of error
should not determine by the prorogation of parlia-
ment y ; and at length it was ordered, that upon a
dissolution, all appeals and writs of error should
continue, and be proceeded on in statu quo^ as they
stood at the dissolution of the last parliament '^. If
a writ of error be brought in the Exchequer-cham-
ber, and that being discontinued, another be
brought in parliament, this second writ is a super-
sedeas of execution ; but if a writ of error be brought
in parliament, and abate, and the plaintiff bring a
second, this is no supersedeas., because it is in the
same court ^
Bankruptcy is no abatement of a writ of ^rror :
therefore, where the defendant in error becomes
bankrupt,
1 1 Sid. 268. y 1 Lev. 165. 2 Lev. 93. 1
^Barnes, 201. Prac. Reg. Mod. 106. S. C. 1 Vent. 266.
C. P. 195. S. C. S. p.
^^ Cro. Jac. 342. 2 Bulst. ^ T. Raym. 383. Com. Dig.
163. S. C. T. Raym. 5. tit. Parliament^ P. 2. but see 1
X 1 Vent. 31.1 Sid. 413. S. Vent. 266. 2 Cromp. 391.
C. 1 Vent. 266. a 1 Vent. 100. 1 Mod. 285.
OF ERROR. 1099
bankrupt, his assignees cannot sue out a scire fa-
cias in their own names, to compel an assignment
of errors, but should proceed in the bankrupt's
name till judgment ^ But the writ of error abates,
by the marriage oi -d. feme plaintiff in errors And
where to a scire facias qiiare executionetn noUy the
, plaintiff in error pleaded in abatement, that the de-
fendant in error was married since the judgment,
and before the issuing of the scire facias, the de-
fendant moved to quash her own writ, which was
granted without costs ^.
If the writ of error be not quashed or abated, the
plaintiff in error may, after the record is certified,
forthwith proceed to assign his errors. And it was
formerly holden, that after the record was certified,
the plaintiff in error must have assigned his errors,
and sued out a scire facias ad audiendum errores,
to bring in the defendant in error, the same term,
or the term next after the record was certified,
otherwise the whole matter was discontinued^ : But
it has been since determined, that if the plaintiff in
error lie still, after a writ of error brought, and do
not assign errors, this is no discontinuance of the
writ of error ^ ; though it is otherwise, if he make
default after errors assigned.
If
b I T. R. 463. e F. N. B. 20.
c 2 Str. 880. 1015, f 3 Salk. 145
"» 1 Str. 638
1100 OF ERROR.
If the plaintiff in error will not proceed, after the
record is certified, the defendant, in order to com-
pel him, should sue out a writ oi scire facias quare
execiitionem non in the King's-Bench, except on a
writ of error coram ?wbisj or by the plaintiff to re-
verse his own judgment ; and in the Exchequer-
chamber, he should give a rule for the plaintiff to
allege diminution, or that the record is not duly
certified or transcribed.
In the King's-Bench, we may remember s, as the
parties have no day in court given to either of
them, on the removal of the record by writ of er-
ror, the defendant in error hath no other way of
compelling the plaintiff to assign his errors, than by
suing out a writ of scire facias quare executionem
nan, &c. ^ ; and if, upon such writ, the plaintiff in
error do not assign errors, but suffer judgment to
pass by default upon scire feci, or two nihils, no er-
rors afterwards assigned shall prevent execution '.
The scire facias quare executionem non is a judi-
cial writ, issuing out of the court of King's-Bench,
where the record is supposed to be ; and the intent
of it is, to bring in the plaintiff in error to assign
his errors : Therefore, Avhere a scire facias was
prayed by one of several defendants in error, the
fault
g Ante, 1009, 10. i Carth. 40, 4 1 ,
h Godb. 68. 2 Leon. 107.
OF ERROR. 1101
fault was holden to be cured by the plaintiff's
coming in upon it, and assigning his errors ^. This
writ may issue immediately after the record is cer-
tified, though before the rule for certifying it is ex-
pired'; and should be directed to the sheriff of the
county in which the action was laid. In point of
form, it pursues the judgment of the Common-
Pleas, the record and proceedings whereof are
stated to have been brought, for certain causes of
error, into the King's-Bench '" : And it should be
made returnable on a general return-day, or day
certain, according to the nature of the proceedings ;
if by original-writ, on a general return-day, ubicun-
que^, &c. but if by bill, or attachment of privilege,
on a day certain, at JFestminster °. If the transcript
be brought in by the essoign-day of the term, the
scire facias may bear teste on the last day of the
preceding term; or if brought in within the term,
on the first day of that term ^. And if there be only
one writ, there should be fifteen days between the
teste and TtXxxTUy by original; or if there be two
writs, between the teste of the first, and return of
the second ''. The alias in such case cannot issue,
before
k 3 Bur. 1791, 2. o 1 Str. 694. 2 Ld. Raym.
12 T. R. 17. 1417. S. C.
■n Append. Chap. XLII. § p 2 Cromp. 345, 6, Imp.
41,2. K.B. 683. L. P. E. 38.
>» 2 Leon. 107. and see 6 12 Cromp. 346.
Mod. 86. 3 Salk. 320,
1102 OF ERROR.
before the return of the former writ ; and ought to
be tested, by original^ on the quarto die post of the
return of that writ, or by bill, on the very return-
day "". A scire facias in error need not lie four days
in the office, as a scire facias against bail must%
On the return-day of the scire facias, if scire feci
be returned, or of the alias writ, if there be two ni-
hils, the defendant in error must give a rule to ap-
pear ^ with the clerk of the rules, which expires in
four days exclusive ". Within that time, the plain-
tiff in error might formerly have appeared, and
pleaded to the scire facias, in this as in other cases " ;
and there was an old rule, that if the party pleaded
to the scire facias, and it went against him, execu-
tion might be sued out, but that the writ of error
should go on notwithstanding '". Afterwards, the
court, in consideration of the delay arising from
this practice, established it as a standing rule for
the future, that if upon the return of the scire fa-
cias, the plaintiff assigned his errors, then all far-
ther proceedings should be stayed upon it ; but
where he chose to stand out upon pleadings to the
scire
«■ 2 Salk. 699. Imp. K. B. « 2 Cromp. 347.
683. V Yelv. 6, 7. Garth. 40, 41:
» 3 Bur. 1723. 4 Bur. 2439. 3 Salk. 145. 1 Str. 638.
t Append. Chap. XLIII. § ^v i Str. 391.
25.
OF ERROR. 1103
scire faciasy execution should go, if it were adjudg-
ed against him ". From this time, the court appear
to have discountenanced pleadings upon the scire
JaciaSy and in some instances to have set them
aside ''. At present, the scire facias is considered
merely as a means of compelling an assignment of
errors ^ ; and it seems to be the practice nov/, to
admit of no plea thereto, by the plaintiff in error •^.
If errors are assigned, before the expiration of the
^ rule to appear to the scire facias^ all farther pro-
' ceedings upon it are stayed of course ; but if the
plaintiff do not assign his errors, and give a copy of
them to the defendant's attorney in error, before
the time allowed by the rule on the scire facias is
expired, the attorney for the defendant in error
may enter judgment on the scire facias , and take
out execution thereon : but the writ of error still
remains in force; and the defendant in error can
have no costs, unless he give a rule for the plain-
tiff to assign errors ^.
Diminution is either of the body of the record,
or of its out-branc\es, as of the original writ, war-
rant of attorney, Sec. If the judges of the Com-
mon-Pleas, or other judges, upon a writ of error,
do
" 1 Str. 391, ^ Jnte, 1101.
y Id. 679. 2 Ld. Raym. » 2 Cromp. 348.
1414. S. C. and see 3 Bur. »> 2 Bac Abr. 216. and scp
1792. 1 T, R. 463. 2 Crom. 347
1104
OF ERROR.
do not certify all the record, the party that sues the
writ of error may allege diminution of the record,
and pray a writ to the justices, who certified the
record before, to certify the whole of it ". But it is^a
rule, that a man cannot allege diminution, contrary
to the record which is certified ; as if, on a writ of
error, it be certified that the judgment was, that
the defendant should be in misericorclid, the de-
fendant in error cannot allege for diminution, that
the record is quod capiatur, because this is contra-
ry to the record certified ^, And, except in Wales
and the couniies-palathie^, diminution cannot be
alleged, upon a writ of error brought on a judg-
ment in any inferior court ^
The 7-ule to allege diminution is an eight-daj rule,
given by the clerk of the errors in the Exchequer-
chamber s ; and if the writ of error be returnable the
first
c 2 Bac. Abr. 204. F. N.
B. 25. a. and see Cro. Eliz.
155. 281. iNels. Abr. 658.
•^ 1 Rol. Abr. 764. Godb.
267. And in a late case, where
a writ of error was brought in
parliament, on a judgment of
the court of Exchequer in Ire-
land, affirmed in the Ex-
chequer-chamber there, the
House of Lords held that di-
minution could not be alleged
in the body of the record, con-
trary to the traiiscrifit ; and re-
fused to issue a certiorari for
verifying it. Rowe v. Power ^
ex dem. Boyse and another, in
Error. Dom. Proc. die Mart.
8 Mar. 1803. but see 1 Bulst..
181. 2 Lil. Abr. 422. 1 Salk.
49. Lil. Ent. 226. 245. 556.
559, 565.
e 1 Sid. 147. 364. 1 Salk.
266. in marg'. Id. 270. Lil. Ent.
226. 245.
f 1 Sid. 40. 1 Salk. 266.
s Append. Chap. XLIH. §
26.
OF ERROR. 1105
first day of term, the plaintiff in error is to transcribe
the same term, allege diminution the term follow-
ing, assign errors the next term, and argue them
the fourth term : but if the defendant in error, in-
stead of serving the rule to transcribe at the return
of the writ, neglect it for a term or two, the plain-
tiff must transcribe in that term in which the rule
is served, allege diminution the same term, assign
errors the term following, and argue them the third
term ^. A copy of the rule to allege diminution
being made, and served on the attorney for the
plaintiff in error, it is incumbent on him to allege
diminution, within the eight days allowed by the
rule ; and if he neglect to do so, the clerk of the
errors, on being applied to, with an affidavit of
the service of a copy of the rule, will sign a nonpros ',
and tax the defendant in error his costs ; but unless
an affidavit be made, he usually sends to the at-
torney for the plaintiff in error, and if diminution
be not alleged by the next morning, he will then
sign the nonpros of course, and tax the costs ^.
When the plaintiff in error has alleged dimi-
nution, the next step to be taken by the defendant
in error, is to give a rule for the plaintiff to assign
errors; which is thtjirst proceeding on a writ of
error coram nobis, and may be given immediately
after the allowance and notice of the writ of error ' :
It
hL. P.E. 92. kimp. K.B. 675.
■' Append. Chap. XLIII; § ' 2 Cromp. 394. Imp. K. B.
78, &c. 734. L.P. E. 78.
Vol. II. 3 L
1106
OF ERROR.
It is also the first proceeding after the transcript
is brought in, on a writ of error by the plaintiff to
reverse his own judgment *". In the King's-Bench,
this is aybwr-day rule, given by the master", on
the expiration of the rule to appear to the scire fa-
cias°\ and after being entered with the clerk of the
rules, a copy of it should be made, and served on
the attorney for the plaintiff in error.
In the Ex chequer- chamber, if the plaintiff in er-
ror allege diminution, the rule to assign errors is
given the next term, with the clerk of the errors,
in like manner as the rule to allege diminution,
and expires in eight days after service p. On a writ
of error returnable in parliament, when the tran-
script is brought in, a peer moves the house, with-
out any previous proceeding, for a day to be given
the plaintiff in error to assign his errors, which is
ordered accordingly ^ ; and ought to be done within
eight
^ 3 Bur. 1771.
n Append. Chap. XLIII. §
27.
o 6 T. R. 367. and see 2
Str. 917. In the case of Sam-
bridge V. Housleij, in Error,
2 T. R. 17. it was holden, that
the rule to assign errors might
be given, at the same time as
the rule to appear to the scire
facias i but according to this
determination, the rule to as-
sign errors, which expires in
four days inclusive, would have
expired before the rule to ap-
pear tj) the scire facias, which,
we have seen, does not expire
till four days exclusive : ante,
1 102. and therefore the prac-
tice was altered as above.
p Append. Chap. XLIII. §
28.
q For the form of the order,
see Append. Chap. XLIII. §
29.
i
OF ERROR. 1107
eight days after the bringing in of the writ of error,
with the record ^ Within the time limited by the
rule or order to assign errors, if they are not as-
signed, the defendant in error may sign a non/>ro5 *,
and is entitled to costs.
An assignmejit of errors is in nature of a declara-
tion '^; and is either,of errors mfact, or errors in law.
The former consist of matters of fact, not appearing
on the face of the record, which, if true, prove the
judgment to have been erroneous ; as that the de-
fendant in the original action, being under age,
appeared by attorney ''; that a y^-^Tze- plaintiff or de-
fendant was under coverture, at the time of com-
mencing the action ""; or that a sole-plaintiff or
defendant died before verdict, or interlocutory
judgment ^^ : But the defendant in ejectment is not
allowed to assign for error, the death of the nominal
plaintiff''. An assignment of errors in fact should
conclude with a verification ^ ; and in assigning the
death
r Ordo Do7n. Proc. die Fen. ^ j^^ § 32, 3.
23 Dec. 1661. w Jd. § 34, &c.
s Append. Chap. XLIII. § "2 Str. 899. but see 1 Sid.
78, Sec. 93. T. Raym. 59. S. C. where
^ 2 Bac. Abr. 216. it was assigned for error.
" Append. Chap. XLIII. § r I Bur. 410. Carth. 367.
"0, 3' . but see Yelv. 58, contra.
1108 OF ERROR.
death of the defendant in error, the assignment
ought not to conclude in the common way, but by
praying a scire facias ad audiendum errores against
the executor or administrator of the defendant in
error; and if the sheriff return that he is alive, then
he may come in and plead in nullo est erratum; or
his attorney may appear for him, and say that he
is alive '^ : but if the sheriff return, that he has
warned the executor or administrator, tliat will be
a sufficient ground for the court to proceed and
examine the errors ^
Krrors in law are common or special. The com-
mon errors are, that the declaration is insufficient
in law to maintain the action; and that the judg-
ment was given for the plaintiff, instead of the
defendant '', or vice versa : Special errors are the
want of an original writ "^ bill, or warrant of at-
torney ^ ; or other matter, appearing on the face
of the record, which shews the judgment to have
been erroneous. The plaintiff may assign several
errors in law, but only one error in fact ^ ; and he
cannot assign error in fact and error in law toge-
ther, for these are distinct things, and require dif-
ferent trials ^ It is also settled, that nothing can
be
2 1 Sid. 93. T. Raym. 59. = Id. § 39.
S. C. <i Id. § 44. 59.
a Carth. 339. e p. N. B. 20.
fe Append. Chap. XLIII. § f 2 Bac. Abr. 217. 2 Ld.
58. 57, 8. 65, 6. Raym. 883. 1 Str. 439.
OF ERROR. 1109
be assigned for error, which contradicts the record ^,
or was for the advantage of the party assigning it^;
or that is aided by appearance, or not being taken
advantage of in due time '. Where there are seve-
ral plaintiffs in en'or, they must join in assigning
errors ^, unless some of them have been summoned
and severed : And where the assignment has been
merely calculated for delay, the court have in some
instances set it aside \ The assignment of errors is
engrossed on treble-penny stamped paper, and need
not be signed by counsel : In the King's-Bench, it
is delivered to the defendant's attorney; in the Ex-
chequer-chamber, and House of Lords, it is Jiled
with the clerk of the errors, or clerk in parliament.
If the plaintiff assign for error the want of an ori-
ginal writ, bill, or warrant of attorney, &c. or
that it is bad in point of law, he should regularly
take oat a certiorari, to verify his errors : for it is a
rule, that judgment cannot be reversed, for want
of an original writ, bill, or warrant of attorney,
nor for any supposed error or defect therein, with-
out a certiorari "". The error in such case, unless
confessed,
8 2 Bac. Abr. 218. 1 Str. B. 676.
684. 2 Ld. Raym. 1414. S. C. > 1 Str. 141. 545. 2 Str.
1 Wils. 85. S. P. 899. Lil. Ent. 228. inmarg.
h 2 Bac. Abr. 220. iStr. 382. "^ 9 Edw. IV. 34. b. 1 RoL
i 2 Bac. Abr. 221. 2 H. Abr. 764. 2 Ld. Raym. 1398
Blac. 267. 299. 1441. Cas. temfi. Hardw. 118.
J' 2 Bac. Abr. 217. Imp. K. 19,
1110 OF ERROR.
confessed, is not considered to be completely as-
signed, until it appear, by the return to the certi-
orari^ that it is well-founded" : And it is said, that
the plaintiff in error cannot till then bring in the
defendant, to plead to the errors ". Also, by the
course of the King's-Bench, if diminution be al-
leged, errors cannot be entered, till the certiorari
be returned, and the rules to plead are expired p.
A certiorari is a judicial wrif, issuing out of the
court where the writ of error is depending, on a
proper precipe "■, and directed to the judge or of-
ficer who has the custody of the writ, or other mat-
ter to be certified; as to the custos brevium^ for cer-
tifying an original writ% or to the chief-justice, for
certifying a bill ^ or warrant of attorney **, &c.
This writ is tested in the name of the chief-justice
of the King's-Bench, when it issues out of that
court; orwhen itissuesout of the Exchequer-cham-
ber, in the name of the chief-justice of the court of
Common-
■^ Com. Rep. 115. infant to sue by firochein amiy
" 2 Ld. Raym. 1047. an imparlance or other con-
p 1 Keb. 211. tinuance, or a writ of inquiry,
1 Barnes, 12. the certiorari is directed to the
r Append. Cliap. XLIII. § chief-justice of K. B. ; but for
40. 45. certifying warrants of attor-
s 7rf. § 41. ney, or a writ of inquiry, in
£ /rf. § 60. 62 . C. P. it is directed to the custos
•Oi Id. § 46. 62, For certi- brevimn. Lil. Ent. 535, &c.
lying bail in the original 2 Ld. Raym. 1476. 1 Wils
action, the admission of an 85.
OF ERROR. 1111
Common- Pleas "; and ought not to bear teste, be-
fore the assignment of errors ". The writ of certi-
orari being signed and sealed, should be delivered
to the judge or officer to whom it is directed; and
is made returnable immediate ^ or without delay ".
It has been doubted, whether the court have power
to amend this writ ''.
When a certiorari is prayed, the defendant in er-
ror may either come in gratis, and confess the want
of an original, &c. by pleading i?i nulla est erratum"^,
or a release *, which renders it unnecessary for the
plaintiff in error to sue out a certiorari; or, if there
be an original, &c. he may go to the master of the
office, in the King's-Bench, and get a rule for the
plaintiff in error to return his certiorari ^ This is
a ybwr-day rule, given by the master, on the back
of the draft of the scire facias quare executionem non;
and after being entered with the clerk of the rules,
a copy of it is served on the plaintiff's attorney.
In the House of Lords, it is a rule, that if the
plaintiff
"'iStr. 819. 2 Ld. Raym. 2 Ld. Raym. 1005. 6 Mod.
1554. S.C. 113. 206. S. C. 2Ld. Raym.
wLil. Ent. 555, &c. Imp. 1047. 3 Salk. 214.6 Mod. 235.
K.B. 680. Holt, 563. S. C.
X Lil. Ent. 555, &c. ''Com. Rep. 115. 1 Salk.
^Barnes, 12. 267. 2 Ld. Raym. 1156. S.
^ 1 Salk. 267.2 Ld. Raym. C. Append. Chap. XLIII. §
1156. S. C. 2 Str. 907. S. P. 42.
^ 1 Salk. 268. 3 Salk. 399.
1112 Ot ERROR.
plaintiff in error allege diminution, and pray a
certiorari^ the clerk shall enter an award thereof
accordingly ; and the plaintiff may, before in nullo
est erratum pleaded, sue forth the writ of certiorari
in ordinary course, without special petition, or
motion to the house, for the same; and if he do not
prosecute such writ, and procure it to be returned,
within ten days next after his plea of diminution
put in, then, unless he shall shew good cause to the
House, for enlarging the time for the return of
such writ, he shall lose the benefit of the same,
and the defendant in error may proceed, as if no
such writ of certiorari were awarded ''. This is the
common course of proceeding : but if the House
be soon about to rise, they will, upon petition, of
which there must be two days previous notice, or-
der the plaintiff in error to return the writ of cer-
tiorari by a short day.
Within the time allowed to the plaintiff in error,
for the return of the certiorari^ he either gets it re-
turned, or not : If it be not returned, the assign-
ment of the want of an original, &c. is of no effect;
and the defendant in error having entered on record
a non misit breve'^, may, notwithstanding such as-
signment, plead in nullo est erratum^ and proceed to
uflirm the judgments If a return be made to the
writ
- Ordo Dom. Froc. die Fen. 54.
13 Dec. 1661. e I Salk. 267. 2 Ld. Rayiri
d Append. Chap. XLIII. § 1156. S. C 2 Cromp. 374.
OF ERROR. 1113
writ of certiorarij it is either that there is, or is
not an original writ, bill, or warrant of attorney,
&c ^ And as diminution cannot be alleged, so it is
a rule, that a matter cannot be returned to the ceV'
tiorariy contrary to the record ^. The return being
made, is filed in the treasury of the court, where
the defendant's attorney should search for it.
We have already seen ^, that the want of an ori-
ginal writ or bill is aided after verdict, by the sta-
tute 18 Eliz. c. 14. but not after judgment by de-
fault or confession, or upon demurrer or nul tiel
record. Therefore, if the want of an original after
verdict be assigned for error, the defendant in er-
ror may confess it, by pleading in niillo est erratum:
But if a writ of error be brought after a judgment
by default, &c. it is usual for the defendant in error,
if there be no original already sued out, to present a
petition ' to the Master of the Rolls, praying that
the cursitor of the county where the venue is laid,
may be directed to issue an original, with a proper
return ''. This petition must be presented, before
the defendant in error takes out a rule for tiie plain-
tiff to return the certiorari: And an order' being
obtained thereon, a copy of the petition and order
should be forthwith served on the adverse attorney;
and
f Append. Chap. XLIII. § i Append. Chap. V. § 15.
43. 47. 63. k Jntet 103, 4. and see 6 T-
k2 Ld. Raym. 1123, 4. R. 544.
H Ante^ 102. » Append. Chap. V. § 17-
Vol. IL 3M
1114 OF ERROR.
and if he do not in two or three days make his elec-
tion, either to accept the costs in error, or prose-
cute his writ, the costs in error must be tendered
him; and if he accept thereof, the defendant in
error may immediately sign a nonpros, and after
entering a remittitur, take out execution on the
judgment "" ; but if he refuse to accept the costs,
choosing rather to prosecute his writ of error, the
petition and order should be delivered to the cur-
sitor, who will make out the original writ, which
must be returned by the sheriff, and then filed with
the ciistos brevium ", The same course is observed,
after an amendment of the proceedings in the ori-
ginal action, pending a writ of error; upon which
the plaintiff in error may make his election, either
to accept the costs, or prosecute his writ °.
The plaintiff in error can have but one writ of
certiorari ^: Therefore, where he took out a certi-
orari of a wrong term, which did not verify his
error, and afterwards moved for a second certiora-
ri, it was denied him ; the court saying, it may be
granted to affirm, but not to reverse a judgment "J.
But if it be certified, on the plaintiff's writ, that
there is no original % or warrant of attorney % or
one
•^L. P. E. 30, 819. S. P.
"/rf. 31,32. «• Cro. Car. 9 1 .
o Ante, 664. ^ Cro. Jac. 277. 1 Salk. 266.
PCro. Jac. 597. 6Mod. 174. S. C.
q 2 Str. 765. and see id.
11
OF ERROR. 1115
one that is bad, or warrants not the declaration %
the defendant in error may, at any time before i?i
nullo est erratum pleaded, make a suggestion that
there is an original or warrant of attorney, or a
good one of a different term, or even of the same
term with the placita ", and pray a certiorari for
certifying it; and if a good original be returned,
the court will not inquire when it was filed; or if a
bad original was before certified, they will disre-
gard it, and apply the record to that which is good
and will support the judgment. But it is a rule ^^
that no certiorari upon a writ of error, shall be su-
ed out or made by any attorney, after a certiorari
in the same cause hath been already sued out and
returned, without motion in court by counsel.
In the King's-Bench, as the parties have no day
in court after the record is removed, the plaintiff
in error may, after he has assigned his errors, have
a scire facias ad audiendum error es ^'' against the de-
fendant, who thereupon may appear and plead in
nullo est erratum^ or a release '', &c. But in prac-
tice it is usual for the defendant in error, by con-
sent, to take notice voluntarily of the assignment
of errors ; which consent is testified by his pleading
in
t 1 Rol. Abr. 765. Cro. Jac. w Append. Chap. XLIII. §
130. 597. Cro. Car. 410. 48, &c.
"Com. Rep. 118. 1 Salk. '^ 2 Bac. Abr. 207. F.N.
267. 2 Ld. Raym. 1476. B. 44.
•' R. E. 11 Car. I.
1116 of i.kkok.
in nullo est erratum, and then there is ho occasion
for a scire facias ad aiidiendum errores ^. Where a
scire facias is sued out, and the defendant does not
appear and join in error, the plaintiff may move to
reverse the judgment, upon producing the record
of the scire facias, with the sheriff's return oi scire
feci, and an entry of the defendant's default, with-
out taking out a rule to join in error ', and even
without moving for a concilium, or putting the
cause in the paper *.
The Exchequer-chamber not having the record
before them, but only a transcript, do not award
a scire facias ad audiendutn errores, but notice is
given to the parties concerned ^ : And in the House
of Lords, the plaintiff must get a peer to move the
house, that on assigning errors, the defendant may
appear and make his defence. In error to reverse
a common-recovery, there ought to be 2i scire facias
against the tertenants, ad audiendum processum et
fecordum'^ ; but to this they can only plead a re-
lease of errors'^.
To an assignment of errors, the defendant may
plead or demur. Pleas in error are common or
special. The common plea, of joinder, as it is more
frequently
yCarth. 41. c 1 Leon. ^90. 1 Lev. 72.
«^ 1 Str. 144. Carth. 111. Append. Chap
»3 9tr. 1210. XLIII. § 52.
^ 1 Vent. 34. d 1 Bur. 360. Jnte, 1034.
OF ERROR. 1117
frequently called, is in nullo est erratum ^, or that
there is no error in the record or proceedings :
which is in the nature of a demurrer, and at once
refers the matter of law arising thereon, to the
judgment of the court.
If the plaintiff in error assign an error in fact,
and the defendant in error would put in issue the
truth of it, he ought to traverse or deny the fact,
and so join issue thereupon, and not say in nullo est
erratum; for by so doing, he would acknowledge
the fact alleged to be true ' : But when an error in
fact is assigned, if the defendant would acknow-
ledge the fact to be as alleged, and yet insist that
by law it is not error, he ought to rejoin in nullo est
erratum ^. Hence it appears, that if an error in fact
be well assigned, in nullo est erratum is a confes-
sion of it; for the defendant ought to have joined
issue thereon, so as to have it tried by the country:
But if an error in fact be assigned that is not as-
signable, or be ill assigned, in nullo est erratum is
no confession of it, but shall be taken only for a
demurrer ^.
If error be alleged in the body of the record, in
nullo est erratum is a good rejoinder; for this shall
put the matter in the judgment of the court, the re-
cord
e Append. Chap. XLIII. § f 1 Rol. Abr. 763.
53, 4. 64. 67. s 2 Bac. Abr. 218
1118 OF ERROR.
cord being agreed to be as stated^. So if error be
alleged in a matter of record, which is not of the
body of the record, but in a collateral thing, as that
there is no record of resummons, in nullo est erra-
tum is a good rejoinder; for if the plaintiff in error
do not allege diminution, and thereupon procure a
certificate from the inferior court, that there is not
any resummons, before the rejoinder entered, the
assignment is of no effect, but void, inasmuch as
this is to be tried by the record itself, and no di-
minution can be alleged after rejoinder entered;
and though the defendant confess the error, yet the
court ought not to reverse the judgment, till they
are satisfied it is erroneous by the record itself '.
If the plaintiff in error assign error in fact and er-
ror in law, which we have seen cannot be assigned
together, and the defendant in error plead in nullo
est erratum^ this is a confession of the error in fact,
and the judgment must be reversed ^ ; for he
should have demurred for the duplicity, upon
which the judgment would have been affirmed '.
By pleading in nullo est erratum^ the defendant in
error admits the record to be perfect, the effect of
his
5i 1 Rol. Abr. 763. 338, 9. Comb. 321. S. C.
i Id. 764. 9Edw. IV. 32. b. i 2 Ld. Raym. 883. 1 Str
^2Bac. Abr. 218. Carth. 439.
OF ERROR. 1119
his plea being, that the record in its present state
is without error"; and therefore, after in ?iulio est
erratum pleaded, neither party can allege diminu-
tion, or pray a certiorari'\ But though the parties
are bound by their own admission, and that equal-
ly so as to every part of the record, yet no admis-
sion of the parties can or ought to restrain the court
from looking into the record before them °. Hence
it is a general rule, that at any time pending a writ of
error, whether before ^ or after errors assigned, or
even after in nullo est erratum pleaded "^j the court
ex officio may award a certiorari; and they may do
this to supply a defect in the body of the record "",
as well as in its out-branches.
When the plaintiff assigns for error the want of
an original or warrant of attorney, and the defend-
ant comes in gratis^ and confesses the matter as-
signed for error, by pleading in nullo est erratum %
or a release S without putting the plaintiff to the
necessity of suing out a certiorari^ to verify his
errors, the court, for their own information, may
award this writ, in order if possible to support the
judgment. And so if error be assigned in the ori-
ginal
" 1 Salk. 270. Cas. tcmli. Hardw. 118, 19.
" Id. 269. 2 Cromp. 378. r i Salk. 270.
o Id. 270. s 2 Str. 907.
p 1 Str. 440. t 1 Salk. 268. 2 \A. Raym.
4 I Rol. Abr. 764, 5. I Salk. 1005. S. C.
269. 2Ld.Raym. 1005. S.C-
1120 OF ERROR.
ginal writ, and upon a certiorari granted, an erro-
neous original be returned, upon which in nullo est
erratum is pleaded, and after the court grant a se-
cond certiorari for another original, and upon this
a good original is certified, the court will intend
this to be the original on which the judgment was
given, in favour of judgments, which ought to be
intended good, till the contrary is manifest ". But
though the court ex ojicio will award a certiorari
to affirm a judgment, yet they will never award
one to reverse it, or make error \
Special pleas to an assignment of errors contain
matters in confession and avoidance, as a release
of errors ^, or the statute of limitations ", &c. to
which the plaintiff in error may reply or demur,
and proceed to trial or argument. A release of
errors contained in a warrant of attorney to con-
fess a judgment is good, though given before
judgment, provided it be dated in the term of
which the judgment is entered up'': But where
there are several plaintiffs in error, the release of
one
>i 1 Rol. Abr. 765. j1n(e, granted a certiorari to reverse
102, 3. the judgment, as well as to
V 1 Salk. 269. 2 Str. 765. affirm it.
319. 907. Cas. temfi. Hardw. w 2 Bac. Abr. 225. Append.
118, 19. but see 2 Bac. Abr. Chap. XLIII. § 55, 6.
205. and the cases there cited, * Stat. 10 & 1 1 W. III. c.
by which it appears, that for- 14.
merly the court would have y2 Str. 1215.
OF ERROR. 1121
one of them shall not bar the others ^ In pleading
a release, the defendant must lay a venue; but
though it be ill pleaded, yet if there are no errors,
the court will affirm the judgment ^ Where error
is brought on a judgment that the j&aro/ shall de-
mur, the non-age cannot be pleaded again, for that
would be exceptio ejusdem ret, cujus petitur disso-
lutio ^.
The plea or joinder in error, &.c. is engrossed
on treble-penny stamped paper; and if common,
need not be signed by counsel. In the King's-
Bench, it is delivered to the plaintiff's attorney "=:
In the Exchequer-chamber, or House of Lords,
it is filed with the clerk of the errors, or clerk in
parliament.
Issue being joined in error, the proceedings are
entered of record : And on a writ of error coram
nobis, they must be entered on the same roll as the
original judgment, or former writ of error '^ On
a writ of error from the Common- Pleas, the entry
is made by the attorney for the plaintiff in error',
on
2 Cro. Eliz. 648, 9. Cro. 1433. S.C.
Jac. 116, 17. 3 Mod. 135. <^ j^nCe, 62!i.
• 1 Salk. 268. 3 Salk. 399. d Cro. Eliz. 155. 281. I
2 Ld. Rayra. 1005. 6 Mod. Ld. Raym. 151. Carth. 369.
113. 206. S. C.
^ 2 Str. 861. 2 Ld. Raym. « ^ntCf 666.
Vol. II. .3N
1122 OF ERROR.
on difFerent rolls, intitled of the term the transcript
is brought in; and begins with the writ of error
and return, after which the proceedings in the
Common- Pleas are entered, to the end of the final
judgment; then follows the assignment of errors,
and if it be of errors in fact, the plea and replica-
tion, &c. are next entered, with an award of the
ve?iire facias *^, or if it be of errors in law, there is
an entry of the joinder, with a continuance by curia
advisari vult ^.
On an issue mjact^ a record ofnisiprius^ is made
up, and the parties proceed to trial, as in common
cases; and after verdict, the party for whom it is
found, must move to put the cause in the paper for
argument'; and then, on producing the postea, the
court will give judgment, according to the finding :
In this case, the defendant, as well as the plaintiff",
may carry down the cause to trial, without a rule
for trying it hy proviso.
On an issue in law^ either party may move for a
concilium ^ in the King's Bench, draw up and serve
the rule, enter the cause with the clerk of the pa-
pers, and proceed to argument, as on demurrer.
Previous to the day of argument, copies of the
books, or proceedings in error, should be delivered
(as
f Append. Chap. XLIII. § ' 1 Str. 627.
68. k Append. Chap. XLIII. §
g Id. § 69, &c. 75.
h Id. 77.
OF ERROR. 1125
(as on demurrer,) by the plaintiff or his attorney,
on unstamped paper, to the chief-justice and ^e/w'or
judge, and by the defendant or his attorney, to the
other judges ^; in which should be inserted the
names of the counsel who signed the pleadings "" :
and the exceptions intended to be insisted upon in
argument should be marked in the margin ". If ei-
ther party neglect to deliver the books, they ought
to be delivered by the other; and in that case, the
party neglecting cannot be heard, but judgment
will of course be given against him °.
In the Exchequer-chamber, there are no more
than two return-days in every term; one is called
the general affirmance -^2.y^ being appointed by the
judges of the Common-Pleas, and barons of the
Exchequer, to be held a few days after the begin-
ning of every term, for the general affirmance or re-
versal of judgments, the other is called the adjourn-
ment-dajj which is usually held a day or two before
the end of every term. On the first of these days,
judgments are affirmed or reversed, or writs of error
nonprossed; the intent of the latter is to finish such
matters as were left undone at the former; on
which last-mentioned day also, as well as on the
first, judgments may be affirmed or reversed, or
writs
» R. M. 17 Car. I. and see " R. E. 2 Jac. II. revived
3 R. E. 2 Jac. II. (a). R. T. by R. H. 38 G. III.
40 G. III. 1 East, 131. ^ntcy ° R. M. 17 Car. I. Imp. K.
687. B. 686.
■nR-E. 18 Car. IL
1124 OF ERROR.
writs of error nonprossed, on paying an additional
fee to the clerk of the errors, and setting down the
cause two days before the adjournment-day p.
The proceedings in this court are entered by the
clerk of the errors, who sets down the cause, at the
instance of either party, without a motion for a
concilium : In making the entry, after setting forth
the writ of error and return, and the proceedings
in the court of King's-Bench, a day is given to the
plaintiff to assign errors; after which, the assign-
ment of errors, and other subsequent proceedings,
are entered on the return-days they are put in, with
a separate placita for each day''. It is a rule, in
the Exchequer-chamber, that no copy of error
and record thereupon be delivered to the justices
or barons, before the attorney for the plaintiff in
error shall have given ten days notice, to the clerk
cf the errors in the Exchequer-chamber, that the
error assigned in the record is to be argued, before
the said justices and barons, for both parties; and
that the attorney for the plaintiff shall deliver four
copies to the justices of the Common- Pleas, and
the attorne)- for the defendant shall deliver four
other copies to the barons of the Exchequer, four
days before the hearing of the cause "": To enable
the parties to deliver these copies, a transcript of
the
pL. P. E. 181,2. rR. E. 33 Car. II. Imp.
1 Id. 175, 8cc. Append. K. B. 677.
Chap. XLIII.§76, &c.
OP ERROR. 1125
the proceedings is made for them, 6y the clerk of
the errors.
In the House of Lords, when the defendant hath
joined in error, the cause is set down, on the mo-
tion of a peer, to be heard in turn ; after which, if
the house is likely to be soon up, either party may
on petition % of which two days previous notice
should be given to the other, have the cause ap-
pointed for a short day. And when a day is ap-
pointed for hearing the cause, the same cannot be
altered, but upon petition ; and no petition can in
such case be received, unless two days notice
thereof be given to the adverse party, of which no-
tice oath is to be made at the bar of the house ^
Previous to the argument, the cases for both par-
ties must be drawn up, and signed by counsel";
and it is usual to deliver 250 printed copies of it
on each side, at the Parliament-office, some of
which are given to the lords, and others to the
judges.
On the day appointed for argument, the counsel
for the parties are heard, being previously in-
structed, and furnished with copies of the paper-
books, or printed cases ; and if there be no argu-
ment, one of them moves for judgment of affirmance
or reversal. If the errors be argued, one counsel
onlv
* Append. Chap. XLIII. § 22 Dec 1703.
90. ^Ordo Dom . Proc. die Mart.
» Ordo Dom. Proc. die Merc. 19 jlfi. 1 698.
1126 OF ERROR.
only is heard on each side, in the King's-Bench ;
the counsel for the plaintiff in error begins, the
counsel for the defendant is then heard, and the
plaintiff's counsel replies'": In the House of Lords,
no more than two counsel can be heard on eacli
side ^\
The judgment in error, unless the court are
equally divided in opinion, is to affirm^ or to recal
or reverse the former judgment; that the plaintiff
be barred of his writ of error ; or that there be a
venire facias de novo. The common judgment for
the defendant in error, whether the errors assigned
be in fact or in law, is that the former judgment be
a^rmed"^ : So on a demurrer to an assignment of
errors, in fact and in law, for duplicity, the judg-
ment is guod affirmetur ^. For error in Jact, the
judgment is recalled, revocatur ^; and for error in
law, it is reversed ''. On a plea of release of errors '',
or the statute of limitations '^j found for the de-
fendant, the judgment is, that the plaintiff be
barred of his writ of error. It has already been
shewn,
V Jnte, 462. ^ Append. Chap. XLIII. §
w 2 Cromp. 389. 84, 5.
:i Append. Chap. XLIII. § ^ 1 Show. 50. 1 Str. 127.
83. 86. 91. 683. but see Ast. Ent. 339.
y Yelv. 58. 2 Ld. Raym. 1 Str. 382. aemb. contra.
883. 1 Str. 439. c 2 Str. 1055. Cas. tem/L
2 2 Bac. Abr. 230. Hardw. 345. S. C
OF ERROR.
1127
shewn, in what cases a venire facias is grantable de
novo
When the court of King's-Bench are equally
divided in opinion, upon a writ of error, it seems
there can be no rule for affirming or reversing the
judgment, without consent ; and therefore, in the
case of Thornby v. Fleetwood ^^ the court being
divided in opinion, a rule was made, w^ith the
assent and at the instance of the lessor of the plain-
tiff, to expedite the determination of the cause, in
the House of Lords ; whereby it was ordered, that
the judgment should be affirmed *'. But in the
Exchequer-chamber, it is the practice, upon a
division, to affirm the judgment, as w^as done in
the
^ Ante^ 831, 2.
«= 1 Str. 379.
fLil. Ent. 524. By the
statute 14 Edw. III. it is pro-
vided, " that whereas causes
" have been delayed for dif-
" ficulty and division in opi-
".nions; therefore to remedy
" the delays occasioned there-
" by, there shall in every par-
" liament be chosen a pre-
" late, two earls, and two
" barons, who by good ad-
" vice of others are to give
" judgment, or if they can-
" not determine it, that then
" the record shall be brought
" into parliament, who shall
" make a final accord ; and
" the judges before whom the
" cause is depending shall
" proceed to give judgment,
" pursuant to their direc-
" tions." But there appear to
be no footsteps for centuries,
of any such appointment of a
prelate, two earls, and two ba-
rons; and the court of King's-
Bench, in the above case,
thought it would be improper,
on a writ of error from the
Common-Pleas, to adjourn the
cause for difficulty into the
Exchequer-chamber,or House
of Lords. ' ^tr. .18^.
1128 OF ERROR.
the case of Deighton v. Greenville ^ : And so is the
practice in the House of Lords ; which depends on
their mode of putting the question to reverse the
judgment, a majority being required to reverse iV\
A judgment, when entire, cannot regularly be
reversed in part, and affirmed for the residue '.
Therefore, where A. brought an action on the case
against B. for words spoken of him, and for caus-
ing him to be indicted, &c. and the jury found a
verdict for the plaintiff as to both, with entire da-
mages, yet it being afterwards holden that the
words were not actionable, the judgment was re-
versed in toto^ : But if part of the words laid be not
actionable, and several damages are given, it
seems that judgment shall be reversed in part
only '.
Where there are several dependent judgments,
and the principal one is reversed, the other cannot
be supported : As if a man recover in debt upon a
judgment, if the first judgment be reversed, the
second falls to the ground "". But the reversal of
the last judgment will not affect the first : As if a
judgment be given against executors ^ in an action of
debt.
g 1 Sho\V. 36. Cruise on 825.
Fines, 222. k 2 Bac. Abr. 228.
ii 1 Str. 383. i 1 Str. 188.
i 2 Bac. Abr. 227. 1 Ld. "^2 Bac. Abr. 229.
Raym. 255, 6. 2 Ld. Raym
OF ERROR. 1129
debty and after a scire facias, judgment is given
against them, to have execution of their proper
goods, and a writ of error is brought upon both
judgments; in this case, if the first judgment be
good, and the last erroneous, the last judgment
only shall be reversed, and the first shall stand ".
So if there be several distinct and independent
judgments, the reversal of the one shall not affect
the other : As in an action of account, if judgment
be given quod computet, and after auditors are as-
signed, and upon the account judgment is given
against the defendant also, with damages and costs,
and after a writ of error is brought upon both judg-
ments, and thereupon the last judgment only is
found to be erroneous; in this case, the last judg-
ment only shall be»reversed, and not the first judg-
ment, but that shall stand in force ; for these are
two distinct and perfect judgments, the first judg-
ment being ideo consideratum est quod computet, et
defendens in misericordid °. So if the judgment con-
sist of several distinct and independent parts, it
may be reversed as to one part only ; as for costs
alone p, or damages in scire facias 'i, or for damages
and costs in a qui tarn action ^
If
" 2 Bac. Abr. 229. and see p Lil. Ent.233. 1 Str. 188.
2 Str. 1055. Cas. i^m/j.Hardw. i 2 Str. 808. 2 Ld. Raym.
345. S.C. 1532. S.C.
" 2 Bac. Abr. 228, 9. «• 4 Bur. 2018.
Vol. II. 3 O
1130 OF ERROR.
If judgment be given against the defendant, and
he bring a writ of error, upon which the judgment
is reversed, the judgment shall only be quod judi-
cium reversetur; for the writ of error is brought
only to be eased and discharged from that judg-
ment. But if judgment be given against the plain-
tiff, and he bring a writ of error, the judgment
shall not only be reversed, if erroneous, but the
court shall also give such judgment as the court
below should have given ; for the writ of error is to
revive the first cause of action, and to recover what
he ought to have recovered by the first suit, where-
in an erroneous judgment was given % If judgment
be given for the plaintiff on one count in a declara-
tion, and a distinct judgment for the defendant on
another, and the defendant bring a writ of error to
reverse the judgment on the first count, the court
of error cannot examine the legality of the judg-
ment on the second count, no error being assigned
on that part of the record \
Where a judgment against the plaintiff is re-
versed, on a writ of error brought in the King's-
Bench, that court, having the record before them,
may in all cases give such a judgment as the court
below should have given, and if necessary, may
award a writ of inquiry to assess the damages.
And
«2 Bac. Abr. 230. 1 S. C. 4 Bur. 2156.
Salk. 262. 401. 4 Mod. 7e. » 6 T. R, 200.
I
OF ERROR. 1131
And so where a judgment is given against the
plaintiff in the King's-Bench, on a special verdict,
by which the damages are assessed, the Exchequer-
chamber or House of Lords may, in case of rever-
sal, give a new and complete judgment, for the
plaintiff to recover those damages ". But where the
damages are not assessed, as when judgment is
given on demurrer^ the Exchequer-chamber or
House of Lords, not having the record before them,'
but only a transcript, cannot give a new and com-
plete judgment, but only an interlocutory judg-
ment quod recuperet; and the transcript being re-
mitted, the court of King's-bench will award a
writ of inquiry, and give final -j udgment \
When the judgment is affirmed, or writ of error
nonprossed, the defendant in error is entitled to
costs and damages^ by the 3 Hen. VIL c. 10. & 19
Hen. VII. c. 20. By the former of these statutes,
reciting that writs of error were often brought for
delay, it is enacted, " that if any defendant or te-
" nant, against whom judgment is given, or any
*' other that shall be bound by the said judgment,
*' sue, before execution had^'', any writ of error to
" reverse any such judgment, in delay of execu-
" tion,
•1 1 Salk. 403. 1 Ld. Raym. ' S. C.
9, 10. Carth. 319. Skin. 514. w Cro. Jac. 6-36. Gill?. C. P.
S. C. 275.
V Cro. Jac. 207. Yelv. 75.
1132 OF ERROR.
" tion^'that then, if the same judgment be affirm -
" ed, or the writ of error be discontinued in de-
*' fault of the party, or the plaintiff in error be non-
*' suited therein, the person or persons, against
" whom the writ of error is sued, shall recover his
*' costs and damages, for his delay and wrongful
*' vexation in the same, by discretion of th&Jus-
*' tice " before whom the writ of error is sued."
The latter of the above statutes recites the former,
and that it had not been put in force, and enacts,
*' that it shall be thenceforth duly put in execu-
" tion." Upon these statutes it has been holden,
that costs and damages are recoverable in error,
for the delay of execution, although none were re-
coverable in the original action^ : And where anex-
ecuto?' brought error on a judgment, after a devas^
tavit^ the court held that he ought to pay costs on
affirmance ^
On a writ of error returnable in the King's -
Bench, that court, on motion, will order the mas-
ter to compute interest on the sum recovered,
by way of damages, from the day of signing final
judgment below, down to the time of affirmance,
and
X The woY A justice y in the 659. 5 Co. 101. S. C. Cro.
singular number, is here made Car. 145. 1 Str. 262. 2 Str.
use of, instead of the courts 1084. but see Cro. Car. 425.
there being no court of error, 1 Lev. 146. 1 Vent, 38. 166.
consisting of only one judge. 4 Mod. 245. Carth. 261. S. C.
Doug. 561. n. 5. semb, contra.
y Dyer, 77. Cro. Eliz. 617. ^2 SU'. 977.
I
OF ERROR. 1133
and that the same be added to the costs taxed for
the plaintiff in the original action ^ In the Ex-
chequer-chamber, though the court, it seems, are
bound to allow double costs to the defendant in
error, on the affirmance of a judgment after ver-
dict, of the King's-Bench, yet it is entirely a mat-
ter in their discretion, whether or not interest shall
be allowed on such affirmance '' : And accordingly,
the course is said to be for the officer to settle the
costs, unless any particular direction be given by
the court; and in taxing them, he allows double
the money out of pocket or thereabouts, but adds
no interest as a matter of course ^ In an action on.
an attorney's bill, if judgment for the plaintiff be
affirmed in the Exchequer-chamber, that court will
not allow interest '^ : and in debt on recognisance,
against bail in error in the Exchequer-chamber,
the bail are not liable to pay interest, between the
time of the original judgment and affirmance;
though they are liable for interest after affirmance ^
In the court holden before the Lord Chancellor
and treasurer and judges, (under the 31 Ecliv. III.)
for examining erroneous judgments in the Ex-
chequer, the practice is to give interest, from the
day
a Append. Chap. XLIII. § ^ 2 H. Blac. 284.
87. Doug. 752. n. 3. and see ^ 2 Bur. 1096.
2 Str. 931. 2 Bur. 1096, 7. '^2 Bo9. & Pul. 219.
1 Blac. Rep. 267, 8. S. C. 2 « 4 Bur. 2127, 2 T. R. «8.
T. R. 79.
1134 OF ERROR.
day of signing judgment, to the day of affirming it
there ; computed according to the current, not ac-
cording to the strictly legal rate of interest ^ In
the House of Lords, they give sometimes very
large, sometimes very small costs, in their discre-
tion, according to the nature of the case, and the
reasonableness or unreasonableness of litigating the
judgment of the court below: And in order to mi-
tigate costs, the plaintiff will sometimes withdraw
his errors.
By the 13 Car. II. st. 2. c. 2. k 10. if the judg-
ment be affirmed after verdict^ the plaintiff shall
pay to the defendant in error his double costs : And,
by the 8 & 9 TF. III. c. 11. ^ 2. " if at any time
" after judgment given for the defendant, in any
" action, plaint or suit, in any court of record, the
" plaintiff or demandant shall sue any writ or writs
^^ of error, to annul the said judgment, and the said
" judgment shall be afterwards affirmed, the writ of
*' error discontinued, or the plaintiff be nonsuit
*' therein, the defendant in error shall have judg-
" ment to recover his costs, against the plaintiff or
" demandant, and have execution for the same,
^' by capias ad satisfaciendum , fieri facias, or
*' elegit^.^^ But none of the before-mentioned
statutes
f 2 Bur. 1096. W. III. c. 27. § 3. 2 H. BISc.
E Id. ibid. 287.
^ And see the statute 8 & 9
OF ERROR. 1135
statutes give costs in error, upon the reversal of a
judgment'; and therefore when a judgment is re-
versed, each party must pay his own costs. A
judgment for the plaintiff was reversed on a writ
of error in fact, brought by the defendant; and
the court held, that the plaintiff was entitled to the
costs of the original action, though not to the costs
in error ^.
After affirmance, or nonpros for not assigning
errors, the defendant in error having taxed his
costs, for which purpose he must wait four days
exclusive after affirmance in the Exchequer-
chamber, may take out execution for the sum re-
covered in the original action, as well as the da-
mages and costs in error, or for these alone, by
fieri facias ^, against the goods and chattels of the
plaintiff in error ; by elegit , against his goods and
a moiety of his lands ; or by capias ad satisfacien-
dum "\ against his person.
But where the judgment is affirmed in the Ex-
chequer-chamber ", or House of Lords °, to which
a transcript of the record only is removed by the
writ of error, it is necessary that the transcript
should.
i 1 Str. 617. §93, &c.
^ Per Cur. H. 41 G. III. '" Id. § 99.
K. B. «Palm. 186, 7.
' Append. Chap. XLIII. =. Cowp. 84".
1136 OF ERROR.
should be remitted to the court of King's-Bench,
before the execution is issued, or at least before
it is returnable p. And where a writ of error de-
termines in the Ex chequer- chamber, by abate-
ment or discontinuance, the judgment is not again
in this court, till there be a remittitur entered; for
without a remittitur^ it cannot appear to this court,
but that the writ of error is still pending in the
Exchequer-chamber 1; and therefore in such case,
it is usual for the party succeeding in the original
action to move the court, on an affidavit of the fact,
for leave to enter a rejiiittitur, and take out execu-
tion ^ So if the plaintiff recover a judgment against
two defendants in this court, and one of them bring
a writ of error in the Exchequer-chamber, the
plaintiff cannot charge the other defendant in exe-
cution, till the record be remitted; notwithstanding
the writ of error might have been quashed imme-
diately, because not brought by both the de-
fendants.
The writ of execution being founded on the
record, must issue out of the court of King's-
Bench, where the record is ^; and that as well
where the judgment is affirmed on a writ of
error coram nobis, or from the Common-Pleas or
an
p Append. Chap. XLIII. § r 1 Salk. 265. 1 Crorap.
88.92. 369, 70.
q 1 Salk. 261. 319. 1 Ld. ^Jnte,9\2.
Raym. 244. S. C.
II
OF ERROR. 1137
an inferior court, returnable in the King's-Bench %
as where it is affirmed in the Exchequer-chamber",
or house of Lords ^'. This writ should be directed
to the sheriff of the county where the venue was
laid in th6 original action ; or if it issue into ano-
ther county, should be made a testatum : and it
must be returnable according to the nature of the
former proceedings ; if by bill, on a day certain at
Westminster, or if by original, on 2i general return-
day, ubicunque, &c.
If judgment be reversed, the party shall be re-
stored to all that he has lost, by occasion of the
judgment''; and a writ oi restitution shall be award-
ed ". Where the plaintiff has execution, and the
money is levied and paid, and the judgment is af-
terwards reversed, there, because it appears on the
record that the money is paid, the party, we have
seen ^, shall have restitution, without a scire facias;
for there is a certainty of what was lost : otherwise
where it was levied, but not paid; for there must
then h^?i scire facias, suggesting the matter of fact,
viz. the sum levied ^, &:c.
If
t Cowp. 843. § 102, 3.
" Palm. 186, 7. y Ante, 936, 7.
V Cowp. 843. 2 2 Salk. 588. Append,
w Cro. Jac. 698. Chap.XLIII. § 100, 101. Lil.
^Append. Chap. XLIII. Ent. 641. 650
Vol. II. 3 P
Xl58 OF ERROR.
If a man recover damages, and have execution
hyjieri facias, and upon \h& fieri facias the sheriff
sell to a stranger a term for years, and after the judg-
ment is reversed, the party shall be restored only
to the money for which the term was sold, and
not to the term itself; because the sheriff has sold
it, by command of the writ oi fieri facias ^. But if
a man recover damages in a writ oi covenant against
B, and have an elegit of his chattels and a moiety
of his lands, and the sheriff upon this writ deliver
a lease for years, of the value of 50/. to him that
recovered, per rationabile pretium et extejitum, ha-
bendum as his own term, in full satisfaction of 50/.
part of the sum recovered, and after B. reverse
the judgment, he shall be restored to the same term,
and not to the value ; for though the sheriff might
have sold the term upon this writ, yet here is no
sale to a stranger, but a delivery of the term to the
party that recovered, by way of extent, without
any sale, and therefore the owner shall be restored ^.
And for the same reason, if personal goods W'ere
delivered to the pstrty , per rationabile pretiu?n et ex-
tentum, upon the reversal of the judgment, the
owner shall be restored to the goods themselves ^
Before
» 2 Bac. Abr. 231. •= 1 Rol. Abr. 778. 2 Bac.
fc Id. 232. Cro. Jac, 246. Abr. 232.
OF FALSE-JUDGMENT. 1139
Before we conclude, it may be proper to say
7i few words of tht writ of Jaise-Judgment, on ac-
count of the affinity it bears to a writ of error.
The writ of false -judgment is an original-writ^
issuing out of Chancery ; and lies where an erro-
neous judgment is given, in a court not of record,
in which the suitors are judges ^. This writ may be
sued by any one against whom judgment is given,
his heir, executor or administrator ; or by any one
who has sustained damage, though the other de-
fendants do not join, as they ought to do in er-
ror ^: And if the writ be brought upon a judgment
in the sheriff's court, it is in nature of a rccordari^y
or if upon a judgment in another court, not of re-
cord, it is in nature of an accedas ad curiam ^.
If there be no suitors, by whom the plaint may
be certified, there shall not be a writ of false-judg-
ment ; as in a copyhold court, in which, upon an
erroneous proceeding, the copyholder must sue to
the lord by petition ''. And by the statute 34 Geo.
III. c. 58. " no execution shall be stayed or de-
" layed, upon or by any writ of false- judgment,
'' or supersedeas thereon, for the reversing of any
" j"dg-
JF. N. B. 18. § 104.
« Moor, 854. gF. N. B. 18.
' Append. Chap. XLIII. ^ Id. ibid.
1140 OF FALSE-JUDGMENT.
*' judgment in any inferior court, within the
*' county-palatine oi Lancaster, where the debt or
'' damages are under ten pounds, unless the per-
'• son or persons in whose name or names such writ
" of false-judgment shall be brought, with two
" sufficient sureties, such as the court wherein the
" judgment is given shall allow of, shall first be
" bound unto the party for whom such judgment
" is given, by recognisance to be acknowledged
'■'■ in the same court, in double the sum adjudged
"to be recovered by the former judgment, to
" prosecute the said writ of false -judgment with
"eft'ect; and also to satisfy and pay, (if the said
" judgment be affirmed, or the writ of false-judg-
" ment be not proceeded in,) all and singular the
" debt, damages and costs adjudged, and all costs
^' and damages to be awarded for the delaying of
" execution'."
A writ of false -judgment is made out by the cur-
sitor; and ought to be served in court, or if the
lord refuse to hold his court, a distringas tenere cu-
riam goes against him \ And, except where bail is
required, it is a supersedeas of execution, from the
time of service ^ The sheriff is not bound to pay
attention
iThis provision seems to 1009. (^). 1075,6.
have been taken from the sta- ^ 6 Hen. VII. 16. a.
tute 19 Geo. III. c. 70. Ante, i Id. 15. b.
OF FALSE-JUDGMENT. 1141
attention to this writ, without being paid for the
return of it ".
Upon the return of the writ ", when the whole
proceedings are certified, and not before, the plain-
tiff shall assign hiserrors°: And if the defendant have
day given by the roll, the plaintiff may assign errors^,
without 3. scire Jacias against him 'J. To compel a
joinder in error, the plaintiff may have a scii-e facias
adaudiendum errores ■"; or he may serve a rule, as on
a writ of error ^: And upon two scire facias* s ad au-
diendum errores awarded, and nih'ils returned, or
scire feci and default made, the judgment shall be
reversed ^
When the parties are once in court, the subse-
quent proceedings in false -judgment are the same
as in error ": And if a writ of false-judgment abate,
or the plaintiff therein be nonsuited, the defendant
shall have a scire facias quare executionem non ". On
a writ of false -judgment, no costs are in general re-
coverable; and it is therefore but seldom advisable
to have recourse to this remedv.
'^ Barnes, 199. p F. N. B. IS.
" Append. Chap. XLIII. i 2 Cromp. 406.
§ 105,6. rp. N. B. 18.
° Foi' the forms of an as- ^ 2 Cromp. 406.
signment of false-judgment * Id. ibid.
and joinder, see Append. " Id. ibid.
Chap. XLIII. § 107,8. V F. N. B. 18.
INDEX.
TO THE
PRINCIPAL MATTERS.
A,
.BATEMENT, 124. 324.
of part of a writ. 583.
writs of error. 1096, &c.
pleas in; see tit. Pleas and Pleading.
time for pleading. 418.
amendments after. 657.
judgment for want of plea in due time. 419. SOT', 588.
affidavit of truth of plea. 507. 588.
of cassetur billa^ vdbreve. 365. 626. 633.
on mil tiel record. 692.
entering proceedings, after judgment of resfiondeas ouster.
669.
costs in. See tit. Costs.
when the suit abates by death of parties, and when not. 840,
8cc. 849. 1024, &c.
ABIDING by Pleas. See tit. Pleas and Pleading.
ACCEDAS AD CURIAM,
what, and when it lies. 352, 354, 5. 1139.
form of. 354, 5.
see on issuing. 97 {v).
what the sheriff must do under it. 355.
cannot be had without shewing cause. Id.
effect of. 356.
receipt and allowance. Id.
VoT.. II. 1 Q ACCEDAS
INDEX.
ACCEDAS AD CURIAM,
return of;
when and how made. Id. 356, 7.
what is good. 357.
effect of filing. Id.
declaration;
denovo. 359.
rule for. Id.
demand of. Id.
non-firos for want of. Id.
appearance;
rule for. Id.
process to compel. Id. 360,
subsequent proceedings. 360.
ACCORD and SATISFACTION,
when Dleaded, or given in evidence. 592. 596. 598, 9
ACCOUNT,
action of; 1,2.
limitation of. 15, 16.
process in; 105. 122.
of outlawry. 126.
declaration in. 376.
judgment in. 1 129.
costs in. See tit. Costs.
stated, plea of. 592.
bail in error, in debt on. 1079.
AC-ETIAM, 82, &c.
unnecessary, for less than forty pounds. 82.
must specify the sum, when more. 84.
necessary, in process against bail. 84. 995.
against several defendants. 80.
ACKNOWLEDGMENT, of debt. 20. 23, 4. 1143.
ACQUITTAL, costs on. 900, 1. 907.
ACTIONS,
criminal. 1.
civil: Jd.
real. Id. See tit. Real Actioiia
personal ;
upon contracts: 1.
account. 1, 2.
assumpsit; 2, 3,4.
express. 2.
implied: 3.
common. Id.
covenant. 4.
debt. Id.
ACTIONS, m
INDEX;
ACTIONS,
personal ;
upon contracts :
annuity. 4.
scire facias. Id. See tit. Scire Faciaa
for wrongs: 5.
case, Id.
for torts to persons; Id.
individually. Id.
relatively: 6.
crim. con. Id. 615.
personal property. 6.
real property; 7.
corporeal. Id.
incorporeal. Id.
detinue. Id.
replevin. Id.
trespass vi et armis. Id.
by whom brought;
upon contracts. Id.
for wrongs. 8.
election of. 9.
joinder in ;
of causes. 10.
persons. 11.1 143.
limitation of. 13, &c. 1143,
notice of. 72, &c.
means of commencing;
in K. B. 61.
C. P. Id. (a).
Exchequer. 62. (a).
mixed. 1.
penal, ^tetxi. Penal mictions.
trifling. 118, 19. 465, Sec.
for costs. 275, 6. 905.
upon awards. 515. 755, 6, 7.
bail-bonds. 248. 511.
against sheriffs, Sec.
for an'escapc, and false return. 207, 8. 255, 6. 790.
monies levied; 933.
taking excessive poundage. 981.
relatingto the customs and excise, by whom brought. 468.
concerning lotteries. Id.
consolidating. See tit. Consolidating .Actions,
scire facias and error considered as actions. 982, 3. 1065.
1082.
-VDDING Pleas. See tit. Pleas and Pleading.
ADDI.
INDEX.
ADDITIONS, statute of,
wuen it may be pleaded. 582,
ADJOURNMENT,
ofessoin. 105. 415.
execution of inquiry. 522.
day, in the Exchequer-chamber. 1123.
ADMINISTRATORS, See tit. Executors and Administratbrti .
de bonis ?ion;
scire facias by or against. 1030, 1.
ADMIRALTY-COURT, suits in. 17.
ADVOWSON,
in gross, not extendible on elegit. 940.
AFFIDAVITS,
of cause of action ;
in what cases requisite. 144, 5.
by whom made. 154.
before whom. 155, 6.
must contain the plaintiff's addition, &c. 154. 1146.
aliter of the defendant's. 155.
jurat of, when made by two or more deponents. Jd.
when made. 81.
where. 156.
how entitled. 155, 6.
common. 150. 1 146.
special. 151.
jiiust be direct and positive. 156.
certain and explicit. 158.
single. 164.
l)y an executor or administrator. 157.
assignee of bankrupt. Id.
bond. Id. 158.
for stipulated damages, &c. 159. *
in trover. 150.
on the lottery -act. Id. 161.
by the bank-acts ;
when made by the plaintiff. 1 16, 2. 1 146.
an agent. 163.
a partner. 164.
co-assignee of debt. Id.
an administrator. /(/.
assignee of bankrupt. Id. 1146,
need not now be very particular. 1 146, 7.
want of, or defect in; 165.
how cured. Id.
court will not go out of it. Id.
need not be made before an outlawry. 134.
being under 405. 465.
arising in a particular county, &c. 466, 7.
AFFIDA-
INDEX.
AFFIDAVITS,
of execution of articles of clerkship. 37. 40.
service under same. 44.
payment of duty. Id. 45.
service of declaration in ejectment. 443, 4.
merits, to set aside regular judgments. 249. 440. 507, 8.
the truth of pleas in abatement. 587, 8.
the due execution of award, &c. 761.
service of copy of rule, 8cc. Id.
demand and refusal of costs. 699.
increased costs. 904, 5.
award oijieri facias. 930 (c).
notice, 8cc. on the lords' act. 966, 7.
signature of note, on same. 970.
on motions ;
when and how made. 449, 50.
title of. 250. {x). 450, 1.
before whom sworn. 451.
jurat of;
when made by illiterate persons. Id.
two or more deponents. Id. 45^.
supplementary. 444. 450.
office-copies of. 454.
on shewing cause; 45 5.
how intilled. 450, 1,
delivering over. 45 5.
filing. /J. 115 6.
for admitting a plaintiff to sue \n forma /lau/ieris. On.
an attachment against tlie sheriff;
for not returning the writ. 254.
bringing in the body. 260.
• setting aside proceedings, against the sheriff. 263.
staying proceedings, pending error. 471.
leave to enter up judgment, on an old warrant of atlor-
\ ney. 438, 9. 498, 9.
inspects books, Sec. 542.
compounding penal actions. 501.
changing venue. 553.
pleading double, not necessary. 611.
judgment as in case of a nonsuit: 706.
what if false. 707.
putting off trial. 708, 9.
making submission to arbitration a rule of court. 760.
attachment, for not perforniing award. Id. 761.
.setting aside aM'avd. 7.*^^.
AFFIDA-
INDEX.
AFFIDAVITS,
for trials at bar. 768.
new trials: 821.
by jurymen, not received. 817.
additional day-rules. 962.
leave to issue a scire facias^ upon an old judgment. 439
(o). 1007.
rule to answer matters of. 59.
AFFIRMANCE-DAY, in the Exchequer-chamber. 1123.
AFFIRMATION, see tit. Quaker.
AGENT;
affidavit of debt by. 163.
service of clerkship to. 41, 2.
acting for unqualified persons. .'54, 5.
employment of, and how considered. 55. 1144.
notices to. 1144. 1 157.
delivering copy of bill to, against principal. 275 (o).
bills of, taxable. 281.
not necessary to be signed. Id.
AGREEMENT,
delivering copy of. 432.
to stay proceedings. 696, 7.
execution. 505. 1005.
not to bring a writ of error. 983, 4. 1052.
AID-PRAYER,
plea of, must be verified by affidavit. 587 (w).
AIEL and EESAIEL, damages on writs of. 799.
ALIAS, writs of. See tit. Ca. sa. Fieri facias, Jury-/irocesSf
Process, and Scire Jacias.
ALIEN BILL, discharge of bail on. 243.
enemy, plea of. 579.
not pleadable with non assuvi/isit. 609 (;;).
ALLOCATUR. 437, 8. 905.
ALLOWANCE, to prisoners on the lords' act. 969, 70.
of writs of certiorari and habeas cor/ius, 337.
fwne and rccordari, 8cc. 356.
writ of error. 1070.
AMBASSADORS. 167, 8.
AMENDMENTS, 439. 442.
at common law; 651, 2. 658, 9. 685. ^
whilst proceedings are in paper. 652. 658, &c. ''i
in penal actions. 659, 60. I'V
of declarations; 391. 652, 3,4. i^
in the title. 329. 368, 9. -.;
venue. 545. 652. («). /
before plea. 654.
AMEND-
INDEX.
AMENDMENTS,
at common law ;
of declarations:
after plea; 654.
in abatement. 652.
of nut del record. LI.
second term. 653.
verdict. 652, 3.
against a prisoner. 652. (y).
in penal actions. 659, 60.
by adding a eount. 653.
alleging new right of action. /(/.
costs, 8cc. 654.
time to plead after. 426. 654.
rule to plead. 431, 2. 654.
of notice to declaration in ejectment. 444, 5.
rules of court. 461.
particulars of demand, or set-oft". 536, 7.
pleas, replications. Sec. 4 39. 442. 654, 5.
replication to sham plea, without costs. 657 {t).
by withdrawing replication, and replying de novo. 65S-
after demurrer or joinder. 656.
argument. Id. 657.
opinion of court given. 656 (.9).
by withdrawing demurrer, and. pleading or replying de
novo. 657, 8,
by statute; 651.
when proceedings are entered on record. 660. 685.
statutes of, what: 660, 1.
do not extend to criminal case s,^or penal actions. 661.
839, 40.
require something to amend by. 661.
after nonsuit, for defect in bill of particulars. 537 (c).
error; 662.
when, where, and how made. Id. 663, 4.
of proceedings in inferior courts. 664.
costs on. Id.
«f original writ. 104. 661.
mesne process; 83. 91. 125. 402. 660.
when not allowed: 402 (z).
in inferior courts. 66 1 .
bill; Id.
against an attorney. 274. 295.
mcmoraudun:. Id.
declaration and pleadings. Vide suf>ra,
writ of inquiry. 513, 14.
AMEND-
INDEX.
AMENDMENTS,
of nisi firius roll .661.
jury-process. 836, Sec.
postea. 661, 2. 802. 811, 12.
special verdict. 661,2.807.
case. 810.
judgment. 662. 858. 862, 3.
execution. 486. 662. 956. 1028.
docket, or list o^ committiturs. 322.
scire facias. 1036, 7.
writs of error. 1093, &c.
certiorai'i. 1111.
not actually made, on the 16 8c 17 Car. II. c 8. 840.
AMERCEMENT,
of sheriff, for not bringing in the body. 256.
disused, and why- Jd.
firofalso clamore. 796. 890.
AMOVE AS M.A^NUS. 143.
ANCESTOR and HEIR. See tit. Heir.
ANCIENT-DEMESNE. 357. 573.
ANNUITY,
action of; 4.
not within the statute of limitations. 16.
process in. 105.
declaration in. 376.
judgment in. 842. 101 1.
saVf-yaaas for subsequent arrears, 1000. 1010, II
motion to set aside ; 445. 983.
by whom made. 446, 7.
after what time. 448.
when the court will order the deeds, Sec. to be cancelled.
447. 491.
in what cases they will not interfere. 447, 8, 9.
objections must be stated in the rule nisi. 449.
bond, staying proceedings on. 485, 6.
pleadings in action on. 638, 9.
within the Stat. 8 Sc 9 W. III. c. 11. § 8. 511. 1012.
motion for leave to take out execution. 1011.
scire facias, when necessary for subsequent arrears. Id-
APPEAL. 268.
APPEARANCE,
in person. 35. 62, 3.
by attorney. Id. 105. 139, 40. 213, 14.
prochein amy. 69.'
guardian. 70.
APPEAR
INDEX,
APPEARANCE,
of the defendant;
what. 210.
different from bail. Id.
voluntary or compulsive. Id.
by original; 100. 105, 6.
with whom, and when entered. 210, 11
upon the cafiias, &c. 213.
common or special. 211. 1 1 50.
to reverse an outlawry. 139, 40.
on a removal hy fione or rccordari, &c. 359.
in scire facias. See tit. Scire Facias.
APPEARANCE-DAY. 101.
APPOINTMENT, by the Master,
to tax costs, on a rule to bring money into court. 569-
discontinue. 629.
nominate a special jury. 72.
attendance on. 57. 286.
ARBITRATION,
what. 743 (c).
submission to;
where a cause is depending: 743.
by rule of court' Id. 744, 5. 757. 759, 60-
order o{ nisi firius. 743.
where no cause is depending: 743, 4.
by agreement of parties; Id.
in writing. 744.
by parol. Id. 746.
what submissions are within the stat. 9 Sc 10 W. TIL
intent of that act. 745. c. 15.746,7.
Upon inclosure acts. 744.
in what manner, and by whom made. 747.
how far a stay of proceedings. 748.
effect of agreement to refer. Id.
when and how determined, or revoked. Id. 749.
consequences of revoking. 749.
swearing witnesses, appointment, 8cc. Id. 750.
chusing umpire. 730.
enlarging time for making award : 442. 750, 1.
motion and rule for, when and how made. 442. 751
privilege from arrest, during attendance on. 175 (a),
award ; 751.
by whom made, on a reference to several. 750.
general requisites of : 75 1.
certainty. Id.
Vol. II. 3 R ARBI-
INDEX.
ARBITRATION,
award;
when final. 751, 2.
good in part, and bad in part. 751.
enforcing;
by action: 755, 6,
where the award is not made within the limited
time. 756,
venue cannot be changed in. 545 (a),
by attachment: 757.
in what cases granted. 757, 8.
for costs of reference. 757.
after a foreign attachment in London. 759
against peers, Sec. 757.
bankrupts. 758.
' feme-coverts. Id.
executors and administrators. 758, 9.
on copy of award. 757.
making submission a rule of court: 445. 75 1 . 75&»
60.
affidavit for. 760.
demand of money, &c. Id.
by whom and how made. Id.
service of copy of rule, and award. Sec. Id. 1 159.
motion and rule for, when and how made. 438,
760, 1.
affidavit in support of. 76 1 .
quaker's affirmation. Id.
''vhat may be shewn for cause against attachment,
and why: 764, 5 =
illegality of award. Id.
by signing judgment, and taking out execution. 755.
762.910. 1159. 1162.
setting aside; 76 S.
by what means. Id.
grounds of: Id.
for an improper stamp. 7^3,
on an inclosure act. Id.
motion for, and when and by whom made: 442. 452,
762, &c. 1159,
affidavit on. 762.
costs of reference; 752, Sec.
where the submission is silent respecting them. 752.
they are to abide the event of award. Id. 753.
in the discretion of ar^jitrator. 753, 4.
taxing. 754, 5,
ARBI-
INDEX
.ARBITRATION,
award;
pleadings on. 592.638.
bail in error, in debt on bond for performance of. 1077
ARGUMENT, of demurrers. See tit. Demurrers.
writs of error. 1125, 6 ,
ARRAY, challenging. See tit. Jur-y.
ARREST,
at common law. 122.
by statute. Id.
previous to, and on the statute 12 Geo. I. c. 29. 144
cases provided for by the above statute. 146.
changes it has undergone. Jd.
in Wales. 150.
counties palat'me. Id.
when allowed of course. Id,
in trover. Id. 151.
when not allowed, without special order. 151,
in debs on statute. 152.
judgment. 153, 186, Sec. 1148.
recognisance of bail. 152. 995,
bail or replevin bond. 153.
upon an award. 187.
for what sum ;
in debt on bond, for payment of money. 153.
performance of covenants, &g. Id.
154.
where there have been mutual dealings.- 154.
for more than the sum due, consequences of. 1 156. 1161
affidavit in support of. See tit. Affidavits.
privileges from;
of the Royal Family. 167.
servants of the King's household. Id.
ambassadors, and their domestic servants. Id. 168,9
peers and peeresses, and their servants. 169, 70.
members of the House of Commons. 170, 1.
convocation, and their servants. 171
corpoi'ations aggregate. Id.
hundredors. Id.
attornies and officers of the court. Id.
executors and administrators. 172.
married women. 173.
parties to the suit, and their witnesses. 174. 188,'
seamen. 175, 6.
soldiers. 177, 8, ARREST,
INDEX,
ARREST,
privileges from;
of bankrupts. 179, 8cc.
insolvent debtors, and fugitives. 182, 3.
how taken advantage of. 183.
of insane persons. 183, 4.
not allowed twice, for the same cause. 184. 186.1147..
exceptions to this rule. Id. 185.
abroad. Id. 184, 5.
after a nc)72/2ro*. 185.
discontinuance. Id. 186.
siifiersedtas. 186.
in what places: 188,
of clergymen. Id. ^
of the king's debtor, &c. 189. ;
at what time. 189, &c. -g
how made. 93. ■■{,
by whom. 19), 2.
when. 193.
where: 192. '
within a liberty. Id.
by what authority. 191, 2, 3.
consequences of. 194.
upon the cjcigi facias. 130.
cu/iias utlagatum. 131, 2.
proceedings on, under stat. 43 G. IIL c. 46. § 2. 1 148, 9,
50.
ARREST of JUDGMENT,
ground and mode of taking advantage of. 824, 5.
motion in, when and how made. 840.
not allowed, after judgment on demurrer. 825.
nor for any thing that is aided or amendable. 826.
in an action for words. 831 (t^).
costs on. See tit. Costs.
limitation of actions after. 15, 16.
yVRTICLES of Clerkship. See tit. Attornies.
ASPORTAVIT, costs on. 881, 2.
ASSAULT and BATTERY,
actions for; 7.
limitation of. 15.
declaration in. 393.
costs in. vSee tit. Costs.
ASSETS infuturo. See tit. Executors and Administrators.
ASSIGNEE of debt.
affidavit of debt by. 157, 8.
ASSIGNMENT of errors. See tit. -Error.
ASSIZE,
INDEX
ASSIZE, damages in. 799.
ASSUMPSIT,
actions of; 2, 3, 4. 9, 10. 96.
upon promises, express. 2.
implied: 3, 4.
common assumfiaits. 3.
limitation of. 15. 18, &c.
arrest in. I5l.
declaration in. 378, &c.
staying proceedings in, on paymentof debt and costs. 482.
assessing damages in, without a writ of inquiry. 514, 15,
16.
particulars of demand in. 534, 5.
bringing money into court in. 562, 3.
pleas in. 591, 2, 3.
judgment in. 842.
damages in ;
how ascertained. 842 (n).
when some defendants are acquitted. 803.
costs in. See tit. Costs.
execution in. 911.
contribution after recovery in. 805 (v).
ASSURANCE. See tit. Po^Ci/ of Insurance.
ATTACHIVIENT,
of privilege. 24, 5. 28. 61, 62 (a). 264. 271.
of goods;
in trespass. 78.
by original. 106.
of the person;
against peers, 8cc.
when it lies. 738.
when not. 170, 1. 757.
against gaolers, Sccon the lords' act. 207.
sheriffs, &c.
for not returning the writ. 254. 261, 2. 437.
bringing in the body; 260, I, &;c. 437.
orij^in of. 256.
non-payment of money. 138.
to whom directed. 261.
may be moved for the last day of term. 262. 452.
proceedings thereon. 262, 3.
against attornies;
for not performing undertakings. 58. 199. 200. 213.
437.
delivering up deeds. 57, 8.
ATTACH-
INDEX.
ATTACHMENT,
of the person;
against atttornies;
for practising in another's name, without his consent
55.
general misbehaviour. 59. 437.
proceedings thereon. 59,
against the parties to the suit;
on a subfixna, in the Exchequer; 62 (c)^
with a clause of proclamation. Id.
for non-payment of costs :
when it lies. 438. 457. 905, 6.
when not. 488. 569. 629.
absolute in the first instance. 438. 906.
may be moved for the last day of term. 452. 906.
for non-payment of composition-money, in a penal ac-
tion. 502.
not peforming an award. See tit. Arbitration.
against other persons;
for speaking contemptuous words of the court, or its
process. 149. 437,
a rescue: 209. 437.
how returnable. 209. 261, 2.
' disobedience to a subjixna^ or other process. 86. S37J
356. 437.738, 9.
motions and affidavits for, how entitled. 450.
when it may be executed on a Sunday. 191. 438.
for contempt, not bailable. 59. 196.
out of Chancery, bail on: 196 (d).
on mesne process. Id.
after a decree. Id.
prisoner in custody on, how charged. 306,
ATTAINDER,
of treason or felony, plea of. 579.
ATTAINT,
writ of; 815.
when it lies. 516, 17.
ATTORNIES,
what. 34.
admission of: 35. 46.
previous qualifications;
articlesof clerkship. 36.
affidavit of execution. 37, S .
stamp-duty on. 39.
restrictions. 40, Iv
ATTORv
INDEX.
ATTORNIES,
admission of:
previous qualifications;
service ;
in general. 41, 2.
to an agent. 42.
in case of death, Sec. Id. 43.
notice of application to be admitted. 4S, 4.
affidavit of service. 44.
payment of duty. Id. 45.
examination. 35. 46.
oath or affirmation. 45.
inrolment. 46.
entry of name and place of abode. 47.
certificate of admission and inrolment. 49. 51, 2.
may be admitted of different courts. 52.
practise in the names of other attornies. Id. 53.
not to suffer unqualified persons to vise their names. 53, 4, 5.
and agents, their relation considered. 55.
privileges of;
to sue by attachment of privilege. 28. 864, 5.
be sued by bill. Id.
not to be arrested: 171, 2,265.
remedy thereon. Id.
not to pay for copies of the pleadings. 678, 9.
issue-money. 679.
•with regard to the venue. 264. 550.
trials at bar. 265.768.
offices. 265, 6.
when not allowed. 266.
as against each other. Id. 267.
waiver of. 267, 8.
mode of proceeding by attachment of privilege; 61, 62 (a).
what. 271.
how sued out. Id. 272.
arrest thereon. 272.
time for d»claring. 273.
pleading. Id.
by bill; 25. 61, 2 (a).
what. 273.
its commencement. 376.
conclusion. 273. 401.
ATTOR'
INDEX.
ATTORNIES,
mode of proceeding by bill ;
when and how filed: 273, 4.
in vacation. Id.
amendment of. 274.
copy of;
when delivered. 275.
to whom. Id.
sticking up in the office. Id.
time for pleading. 274, 5.
by cafiias of privilege, in the Exche-r
quer. 62 (a).
plea of privilege by. 46, 7. 172 (A). 579.
disabihties and restrictions of:
cannot be bail, or lessee in ejectment, &c. 230. 269.
a justice of the peace. 269.
commissioner of the land-tax. Id.
incapable of prosecuting actions, when in prison. Id.
270.
appearance by; 35. 62, 3, 4.
without warrant. 64. 470.
withdrawing themselves. 64.
cannot be changed, without leave. Id. 983. 1094.
dying. 65.
warrant of. See tit. Warrant of Attorney.
affidavit sworn before. 451.
when necessary to be present, on executing warrant of
attorney. 492, &c.
undertaking to appear ;
in bailable actions. 199,200.
on common process. 213.
to reverse an outlawry. 1 34.
duties of; 55.
to appear in court. 57.
attend on motions, &c. Id.
compellable to deliver up deeds, &c. on payment of costs.
57, 8
consequences of misconduct of;
action for damages. 56. 861.
payment of costs. 58.
attachment. 58, 9. 437.
striking off the roll. 60.
may be struck off the roll, at their own instance. Id.
re-admitted. Id.
ATTOR-
i
INDEX.
ATTORNIES,
costs of;
action for. 275.
delivering bill of: 276.
how far conclusive. 285.
in what cases it may be taxed. 291, 2.
at what time. 283, 4.
mode of taxing it. 285, 6.
costs of taxation. 286.
evidence of. Id.
lien for the balance. 287, 8.
payable by attorney, for neglect. 58.
interest on bill of, not allowed in error. 11 33.
clerks of; 35, &c.
using name of regular attorney, without his consent. 5^i.
not allowed to be bail; 230.
except for rendering. 231 (y).
affidavits sworn before. 451.
ATTORNMENT. 618. 827.
AVERMENT; See tit. Declaration.
writ of. 107.
AUDITA-QUERELA;
remedy by. 984. 1029. 1043. 1048
pleas in. 622.
issues and demurrers. 666.
AUTER-ACTION Pendent, plea of. 583.
AWARD; See tit. Arbitration.
pleaded, after the last continuance. 775
B.
BAIL,
to the sheriff; 194.
on an attachment out of chancery: 196 (tT).
on mesne process. Id.
after a decree. Id.
cannot be taken, on an attachment for contempt. 59,
196..
indictment for misdemeanor.
195, 6.
how far liable. 250.
execution against. Id.
when and how discharged;
by death. 251.
Vol. II. S S BAH.,
INDEX.
BAIL,
to the sheriff;
when and how discharged;
by bankruptcy. Id.
render. 236. 251,2.
to the action; 194.
common or special. Id.
history of. 211.
governed by the arrest. 212.
necessary to be filed, for supporting the proceedings.
211. 291,
common; 151. 165. 186, 211. 291. 324, 5, 6.
when and how filed, by the defendant. 212.
by the defendant's attorney. 213.
by the plaintiff, according to the statute: 214.
will not entitle a third person to declare by the
bye. 36G.
under Stat. 43 G. III. c. 46. § 2. 1150.
nunc pro tunc. 214.
filing it, formerly. 215.
penalty for not filing it. 212 (/?).
motion for discharging defendant on. 440,
special; 149, 50. 216. 328.
by whom put in. 216, 17.
when; 217.
before or after return of writ. Id.
in what court, on^a removal before declaration. 300 (r^.
before whom. 217.
how, on a misnomer. 582 (z).
recognisance of. See tit. Recognisance.
before a commissioner. 220.
absolute or de bene esse. 221.
origin of. de bene esse. Id. (y).
notice of; 222.
unnecessary in the common pleas. 223 (Aj
after the bail-bond is forfeited. 249.
exception to; 223, 4.
when necessary, to fix tlie sheriff. 257, 8
notice of exception. 224. 257.
time allowed to add and justify. 224, 5.
further time. 231, 2.
adding. 224, 5. 257, 8.
novice of justification; 225, 6.
affidavit of service of. 228.
justifying; 226, &c. 440.
at what hour. 22*3.
BAIL,
INDEX,
BAIL,
special ;
justifying;
in person, or by affidavit. 226.
where the same persons are bail in several actions.
227 (w).
need not justify, to render. 235, 6.
grounds of opposing. 228, &c.
assuming feigned names. 228.
personating others. 229.
rule of allowance. 232.
where the defendant is a prisoner: 233.
in vacation. 233.
upon a certiorari or habeas corfius: 342.
when and how put in, excepted to, and justified.
343, Sec.
upon an attachment of privilege. 272.
exigi facias. 130, 1.
capias utlagatuvi. 132, 3.
reversing an outlawry. 140, 1.
how far liable ;
upon a cefii corfius. 220. 225. 233, See.
habeas corfms. 345, 6.
may take their principal at anytime. 180. 190, 1.
privileged from arrest, eundo, 8cc. 174.
when and how discharged;
by declaring for a different cause of action, or in a dif-
ferent county. 242, 3. 992, 3.
by render: 225.
at what time it may be made; 235, £cc. 995. 1045.
before judgment: 235.
without justifying. Id. 236.
as between plaintiff and sheriff. Id.
sheriff's bail. 236.
after judgment. 236, 8cc.
in what cases it may be pleaded. 238. 1044.
notice of; 240, 1.
affidavit of service. Id.
when not given in time. 241.
entry in the marshal's book: 242.
oiexonrretur on the bail-piece. 241, 3, 4.
by death or bankruptcy of the defendant, &c. 243.
1044, 5.
reference to arbitration. 993.
on removing a cause from an inferior court. 336.
BAIL,
INDEX.
BAIL,
special ;
-'proceedings against;
by action of debt. 471. 995, 6.
scire facias. Jcl. and see tit. Scire Facias.
staying, pending error. 471, &:c. 474, 5.
execution against, in scire facias. 1049, 50.
error by. 1053.
certiorari for, how directed. 11 10 (u).
in error ;
in what cases required :
at common law. 1074.
by statute;
after judgment by default, &c. 1075, Sec-
verdict: 1080.
in dower and ejectment. 1081.
against executors and administrators. IG82.
on a writ of error coram nobis. 1083.
Avhen, where, and how put in. 1084, 5.
recognisance of. See tit. Recognisance.
cannot render, nor are discharged by bankruptcy.
1086,7,
nor by taking principal in execution. 1087 (o).
notice of. 1087.
exception to, and rule for better bail. Id.
adding and justifying: Id.
notice of. 1088 (w),
consequence of not puting in and perfecting. 1087,-^,
proceedings against ;
by action of debt. 998.
scire facias. Id. and see tit. Scire facias..
not liable for interest, on affirmance. 1 133.
BAIL-BOND,
form of. 197.
on a misnomer in process. 582 (i).
v/hen good, though the condition vary from the ^vrit. 19.8.
void, consequence of. 253.
assignment of;
in what cases taken, and in what not. 245. 251.
at what time it may be taken. 247.
by whom made. 248.
action on, must be brought in the same court. Id,
not within the stat. 8 & 9 JV. III. c. 1 1. § 8. 5 U.
setting aside proceedings on, for irregularity. 248 9 .
motion for delivering it up to be cancelled. 440.
staying proceedings on terms. 249. 440, 1. 483.
BAIL-
INDEX.
BAIL-BOND,
staying proceedings on terms;
motion for. 441 («).
rule or summons, how entitled. 249, 50 (xy.
upon a capias utlagatum. 133.
pleadings in actions on, 196, 7, 8. 596.
BAILIFFS, 33, 4.
in fee. 191.
special. Id. 192. 253.
of a liberty: 33. 192. 204.
punishable for misbehaviour. 33, 4.
proceedings against, for a false return. 257.
to compel bringing in the body . Jrf.
BAILMENT. 4.
BAIL-PIECE,
common. 213. 215. 326.
special: 219, 20, 21.
when transmitted. 221.
filed, upon an acceptance of the bail. 223.
for want of an exception. 224.
after justification. 232.
on a habeas cor/ius. 343, 4.
exoneretur on. 240, 1, &c.
BALLOTING-ACT. 722, &c. 781, 2.
BANK-ACTS,
affidavit required by. 161, 8cc.
BANK-NOTES, cannot be taken in execution. 917.
books of, inspecting, 539,
BANKRUPT,
actions by assignees of. 8. 12, 13. 376.
affidavit of debt by assignee of. 157. 164.
privilege from arrest of;
in coming to surrender. Sec. 179, 80.
before or after certificate. 180, 1, 2.
future effects of, how far liable. 1013, 14.
jincertificated, cannot be bail. 229.
not required to give security for costs. 477 (/).
bail of, how discharged, 240. 243. 1044.
time enlarged for rendering. 237 (m).
set-off in actions by or against assignees of. 605, 6.
liable to costs, for false pleading. 182.
not liable to attachment, for not performing award. 758.
in what cases the assignees may proceed to judgment and
execution in bankrupt's name. 849. 1023, 4.
BANK-
INDEX.
BANKRUPT,
judgments against, how affected by bankruptcy. 852, o.
executions against. 922 3. 1014, 15.
scire facias by, as executor or administrator. 1030.
for assignees of, when necessary. 1023, 4.
BANKRUPTCY,
commission of;
privilege of witnesses, &c. from arrest on. 175 (a).
against a defendant in execution;
efTect of. 957.
plea of, in deftndant;
need not be signed or filed, in K. B. 621, 2.
must be signed in C. P. 622. (/i).
in one of several defendants. 632.
plaintiff, after the last continuance. 775.
may be pleaded in trover. 598,
of principal, cannot be pleaded by bail. 1044 (e).
before affirmance, no discharge of bail in error. 1086, 7.
in what cases an abatement of a writ of error. 1098, 9.
BAR. Pleas in. See tit. Pleas and Pleading.
trials at. See tit. Trials.
substantially bad, not cured by verdict. 828.
BARC;N : nd FEME,
actions by or against; 9.
limitation of. 16.
affidavit of debt by feme-eovert. 154. 158.
arrest of, upon mesne process. 173.
process of execution. 174.
service of process on. 149.
Avarrant of attorney by or to a feme-covert. 492. 496, 7. '
set off in actions by or against. 605.
whether liable to attachment, for not performing an award.
758.
when the wife's goods may be taken, on an execution
against the husband. 923, 4,
scire facias hy or against. 1021, &c. 1030.
exTor by. 1052,3. 1056. 1107.
marriage of feme, in what cases an abatement of a writ of
error. 1099.
BENEFICED CLERK. See tit. Clergymen.
BER WICK-upon-Tweed ;
dirc;ction of process into. 86.
changing venue. 552.
award o{ venire facias. 674.
trial. 771, 2.
BILL,
INDEX.
BILL,
jurisdiction of court by. 28.
against attornies. Sec. 25. 61, 2. 11. 264, 5. 2/3.
members of the house of commons. 25. 61, 2, 11.
110. 113, 14.
unprivileged persons. 1 1 1 {b).
prisoners, in the actual or supposed custody of the
marshal. 28,9. 61. 290.
in the Fleet. 62 (a).
when actually filed, and when not. 291, 2.
how far considered as the commencement of the
suit. 292.
against prisoners, in the actual custody of the marshal. 25.
61. 77.303.
amendments of, or by. 294, 5.390, 1. 661.
want of, aided by verdict. 832. 1113.
error, after judgment by default, &c. Id.
how assigned. 1 108.
certiorari for ; 1109, 10.
proceedings thereon. 1111.
BILL of Costs. See tit. Costs and Jttornies.
J\liddlesex . See tit. Process.
Particulars. See tit. Particulars.
BILLS of Exceptions,
what, and how they arise. 785, &c.
grounds of. 786, 7.
in what cases allowable, and in what not. Id, 788. 791.
must be tendered at trial. 788.
forms of. 788,9, 90.
sealing. 790.
proceedings on:
writ of error. 790, 1,
to confess or deny seal. 79 I
judgment. Id.
BILLS of Exchange and Promissory Notes;
affidavitof debt on. 157.
staying proceedings on. 482.
assessing damages on, without a writ of inquiry. 514, &c.
evidence of, on execution of inquiry. 523.
delivering copies of. 532.
venue cannot be changed, in actions on. 547.
cannot be se*^ off. if indorsed after bankruptcy. 606.
notice ot indorsement of. 38'J.
demand and refusal by acceptor, must be laid ir. action
against indorser. 827.
notice to produce in trover. 736.
BLACK-
INDEX.
BLACK-ACT. 116, 17. 119.
BLANK-WRITS;
not to be sealed. 33 (t).
BO ARD of Greencloth. 188.
BONA NOTABILIA. 546, 7.
BOND;
staying proceedings in actions on. 483.
assessing damages in actions on. 508, 8cc. 511.
BOOKS. See tit. Insfiecting Books, &c.
BOTTOMREE-BOND, action on;
assessing damages in, without a writ of inquiry. 516.
bail in error in. 1077.
BREACHES;
negative or affirmative. 389.
how assigned. Id. 390. 637 (i}.
BRIBERY. 468.
BRIEF. 774.
BRINGING Money into Court. See tit. Money.
CANAL-ACT, distress for money due on, not within the stat.
11 Geo. II. c. 19. § 22. 891.
CAPIAS AD RESPONDENDUM,
when it lies. 122. 172.
against whom it does not lie. 110. 122.
special, in K. B. 122,3.
quare clausumf regit, in C P. 61, 2.
of privilege, in the Exchequer. 6?
alias ^
^^^""'* I catiias. 123,4.
testatum 1
non otnittas -'
teste and return of. 86 (a) 124.
amendment of. 125.
bailable. 150.
not bailable. 146.
common or serviceable. /<:/. (oJ).
CAPIAS AD SATISFACIENDUM. 9iiJ.
generally; 953, 4.
when it lies. 954. 1004.
against whom. 954. 1049.
form of. 955.
CAPIAr>
INDEX.
CAPIAS AD SATISFACIENDUM;
generally;
for the residue. 955.
signing and sealing. Id.
teste and return: Id. 956.
by original. Id.
amendment. 956. 1028.
returns to. 956. 993.
alias & testatum. 956, 7 .
non omittas. Id.
process of outlawry. 127. 957.
how far considered as a satisfaction; ^7, 8. 1046.
generally. 957.
as against third persons. 958.
after defendant's death. Id. 959.
escape or I'escue. 960.
discharge on lords* act. 978.
to charge bail; 993.
direction. 994.
teste and return. Id.
must lie four days in the sheriff's office. Id.
cannot be sued out, or returned, pending error. 1071, 2.-
want of, in what cases pleadable. 1044.
against peers of the realm. 115.
si laicus. 949.
for charging defendant in execution, in a county gaol. 322.
prisoners on. See tit. Prisoners.
CAPIAS utlagatum;
general. 131, 2.
special. 135.
CAPIATUR,
want or wrong addition of, aided. 865.
CARRIERS, actions against; 7.
declarations in. 399.
pleas in. 580, 1.
CASE,
actions upon; 5, See. 10. 374.
limitation of 15.
process in. 122.
declaration in. 377. 390. 392, 5cc.
pleas in. 598.
judgment in. 842.
costs in. See tit. Costs.
execution in. 911.
special. See tit. Sfiecial Case.
Vol. it. 3 T CASES,
INDEX.
CASES, in the House of Lords. 1 125.
CASSETUR billa vd breve^ entry of; 633. 841.
declaring- after. 365.
CERTAINTY,
in pleading. 405. 618. 776.
awards. 751.
CERTIFICATES,
of attornies. See tit. Attomies.
for costs;
on the 43 Eliz. c. 6. 615. 871.
7 Jac. I. c. 5. 904.
22 & 23 Car. II. c. 9. 879, &c. 884.
8 & 9 W. III. c. 11. § 1. 900, 1.
§ 4. 884. 887.
4 Sc 5 Ann. c. 16. § 5.617.
CERTIFYING Record. See tit. Error.
CERTIORARI,
what, and when it lies. 329. 335. 1051.
before judgment. 330.
after judgment. Id. 331, 2.
out of what court it issues. 333. 692.
to what court. 334.
direction. Id.
form of. Id.
teste and return. 335.
quashing and superseding. Id.
effect of. 337.
receipt and allowance: Id.
in what stage of the cause. Id. 338, 9.
in causes under five pounds. 339.
ten pounds. 340.
return of;
when and how made. 341.
to what officer. 1091.
effect of fihng. 348.
bail on; 342.
when and how put in, excepted to and justified. 343,
&c.
firocede7ido;
what, and when it lies. 346, &c.
camiot be granted after return filed. 348.
nor after cause remanded. Id. 349.
declaration on; 349.
de novo. Id. 350. CER-
il
INDEX.
CERTIORARI,
and mittimus; 333. 691.
what. 691.
when the record must be certified, or only the tenor.
691,2.
form o^ scire facias, after removal by. 331. 1008, 9.
in error; 1068.
firacijie for. 1110.
by the plaintiff', to verify his eiTors. 1 104 (d). 1 109, &c.
1114.
by the defendant, to disprove them. 102, 3. 662, 3. 1 1 14,
&c. 1120.
by the court, for their own information. 1119, 20.
CESSET Executio. 804. 1005.
Processus. 706, 7.
CESTUI que trust. 605. 923. 939, 40.
CHALLENGE of Jurors; See tit. Jurij.
over-ruling, ground for bill of exceptions. 786, 7.
CHESTER. See tit. County iialatine.
CHRISTIAN-NAMES. 402.
CHURCHWARDENS. 76.
CINQUE-PORTS. 86. 573. 1058,9.
CIRCUITS; 99.
officers of. 34.
CLERGYMEN,
arrest of. 188, 9.
proceedings against. 93 1, 2.
CLERK of the Declarations;
his duty, 8cc. 274 {n).
of the peace;
cannot act as an attorney. 269.
COGNOVIT ACTIONEM, what. 503.
need not be stamped. Id. (c).
before or after plea: Id.
relictd verijicatione. Id.
objects of. Id.
when and how made: Id. 504.
upon terms. 504, 5.
withdrawing plea. 504.
of the whole, or part of cause of action. Id.
proceedings on each. Id.
waiver of irregularity. 214, 15. 508.
by principal, does not discharge bail. 244. 922.
costs on, after argument of special case, and new trial or-
dered. 810, 11.
COLOUR,
INDEX.
COLOUR, in pleading;
implied. 599, 600.
express. 600, 1.
want of, aided by statute of jeofails. 834.
COMMISSION of bankrupt. See tit. BaJikruJitcy .
of rebellion, in the Exchequer. 62 (a).
COMMISSIONERS, for taking affidavits. 155, 6.
recognisancesof bail. 217, &c.
of the stamp-office. 440. 533.
lottery. 539.
under inclosure-acts, 8cc. 741, 2.763.
COMMITMENT; 239, 40. 320, Sec.
entry of. 320, 1. 845.
COMMITTITUR-PIECE; 320.
filing and entering. Id. 321.
COMMON, right of, how stated. 396, 7;
COMMON-PLEAS,
means of commencing actions in. 6 1 (a),
error from. 1058.
to, lies not from inferior courts. Id.
COMPERUIT ad diem; 258.
plea of, maybe delivered. 621, 2.
need not be signed. Id.
issue on, by whom made up. 666.
COMPOUNDING penal Actions; 500.
in what cases allowed. 501.
in what not. Id.
motion for, when and how made. 441. 501.
proceedings thereon. 501, 2.
COMPULSIVE Clauses, in the Lord' act. 972, Sec.
CONCILIUM. See tit. Demurrers unA Error.
CONCLUSION to Declaration. See tit. Declaration.
CONDITIONS, precedent. 381, 2, &c.
subsequent. 382.
CONFESSION, judgments by. See tit. Judgments.
and avoidance. See tit. Pleas und Pleading.
without avoidance. 828.
CONSIDERATION,
express or implied. 379.
executed or executory. Id.
when good. 380.
CONSOLIDATING Actions,
motion for. 441.
in general. 556.
on policies of insurance. Sec tit. Policy of Insurance.
CON-
I
INDEX.^
CONSTABLES and HEADBOROUGHS,
actions against; 74.
limitation of. 22.
venue in. 374.
demand of copy of warrant from. 74.
costs in actions against. See tit. Costs.
attornies not liable to be chosen. 265.
CONTEMPTUOUS Words. See tit. Attachment.
CONTINGENT Damages. See tit. Damages,
CONTINUANCE,
of process; 626, 7.
before declaration. 627.
after declaration, and before issue. Id.
issue, and before verdict. Id. 844.
verdict or demurrer. 627.
judgment by default. Id.
in error. 1 122.
entry of; 91. 1004.
may be made at any time. 627. but see 1096,
certiorari for, how directed. 1110 (ii).
want of, when aided or cured. 628.
may be added, after judgment in a penal action. Id.
of notice of inquiry. See tit. Inquinj.
trial. See tit. Trials.
pleading after last. See tit. Pleas and Pleading.
CONTRACTS,
in writing; 378.
by deed, under seal. Id.
agreement without seal. Id.
by parol. Id.
express or implied. Id.
present or future. Id.
actions upon ; 1 .
by and against whom brought. 7, 8.
limitation of. 15.
how stated in the declaration. 378, 9.
special, admitted by bringing money into court. 568.
CONTRIBUTION,
action for. 805 (v).
CONVICTION, new trial after. 820.
CONVOCATION, Members of. 171.
CONUSANCE,
what. 574.
in what cases it may be claimed. Id. 575, 6.
at what time. 418. 576, 7. CONUSANCE,
INDEX.
CONUSANCE,
how claimed. 577.
proceedings after. 350.
COPY of Process. See tit. Process.
declaration. See tit. Declaration.
deeds, 8cc. on oyer. 526, 7.
written instruments: 531, 2.
in what cases formerly demandable. Id.
at present: 532.
when the defendant is in nature
of a trustee. 533.
record of acquittal. 539. v,
causes. 324. ^
COPYHOLD Lands, not extendible on elegit. 940.
tenant, rule for his inspecting court-rolls. 440
(y). 540.
CORONER. 720.
CORPORATION,
must be sued by original. 25. 61 (a), tl. 94, 96.
process against. 116.
must appear by attorney. 63. 105.
not entitled to essoin. 105.
members of, not subject to arrest. 171.
inspecting books of. 541.
COSINAGE, damages on writ of. 799.
COSTS,
as between party and fiarty;
de increinentOy origin of. 864, 5.
in abatement. 589. 633. 897, 8. 1049.
bar,
interlocutory; 864.
on setting aside proceedings on bail-bond. 250.
\iv\X.s oi distringas. 108. 113.
reversing outlawry. 142, 3.
motions: 457, &c.
when a rule is made absolute. Id.
discharged. 458.
setting aside proceedings, for irregularity. 435.
staying proceedings. Id. 465. 996.
of declaration, when allowed on. 481 (a),
bringing money into court. 558. 565, 6, &c.
570.
COSTS,
INDEX.
COSTS,
interlocutory ;
on amendments: 654.
of writs of error. 1094.
after error. 664. 1114.
a reference to arbitration. See tit. Arbitration,
remanct. 699 (/). 755.
withdrawing juror. 570. 785.
examining witnesses on interrogatories. 741.
quashing writs of error. 1095, 6.
suing out original writ, after error. 1114.
of writ, &c. deposit to answer. 200.
trials at bar, when plaintiff is poor. 768, 9.
special jury. 727, 8.
witnesses. 737.
new trials: 822, 3, 4.
after special case. 810, 11.
repleader. 830,
for not proceeding to trial, or inquiry. 441. 522, 3.
699.700.
hy firoviso. 702.
payable by attomies, for improper conduct. 58.
final, 864.
for plaintiff;
at common law. Id.
by statute of Gloucester. Id. 865.
where double or treble damages are given, or a ccv-
txiXvpenaUy, by a subsequent statute. 865, 6.
where single damages are given by a subsequent
statute. 866, 7.
restrained, by 43 Eliz. c. 6. 870, 1.
court of conscience-acts. 753. 871,
&c. 874.
21 Jac. I. c. 16. in actions for words,
878.
23 Sc 23 Car. II. c. 9. in trespass.
879, &c.
43 Geo. III. c. 46. § 4. in debt on
judgment. 888,9.
extended by 4 8c 5 W. 8c M. c. 23. 886, 7.
8 8c 9 W. III. c. 11. 887, 8.
in inferior courts. 276. 885, 6.
for defendants;
at common law. 864. 889.
by statute of Marlcbcrere. 890.
COSTS,
INDEX.
COSTS,
final;
for defendant;
on a nonsuit or verdict: 891, 2. 895, 6.
when proveable under a commission. 181, 2.
judgment as in case of a non-suit. 703. 708. 894.
discontinuance. 628. 896. 904.
nolle prosequi. 630. 896.
non-pros; 359. 415. 893. 896,
in error. 1093. 1105. 1107.
demurrer. 669. 614, &c. 870. 888. 897, 8.
where plaintiff does not recover the sum sworn to,
&c. 442. 898.
in arrest of judgment. 899,
where there are several defendants. Id.
inactions real: 865.
writ of right: 708.
of ward. 899.
penal: 866, 898. 902.
on game-laws. 903.
of account. 891.
assault, 880. 883, 4.900, 1.
and battery, 865, 879, 80. 883.
false imprisonment. 880. 900.
assumpsit. 865, 871, 880, 896.
upon the case; 865, 891, 901.
for words, 878,
of covenant. 865. 880, 891.
for criminal-conversation, 6 (g*). 615.
of debt; 865, 871, 874, 5. 880. 891.
on judgment. 440, 879,
for not setting out tithes. 866. 868,
detinue, 891,
for distresses. Id. 903.
of dower unde nihil habet. 865.
ejectment. Id. 895. 899, 900. 90.5,
error. 890.
false-judgment. 1140,41.
prohibition. 865. 868, 9,70.
quare impedit. 867.
replevin;
for plaintiff. 865.
defendant. 890,
of double pleading. 615, 16, 17,
against several defendants, 899, 90Q.
COSTS,
INDEX.
COSTS,
final;
in scire facias. 865. 868. 1018. 1020. 1048, 9. 1103.
trespass,
for plaintiff; 865. 879, &c. 900.
how restrained. 879, &c.
against inferior tradesmen, he. 886, 7.
when wilful and malicious. 884. 887,
for defendant;
on the 5 R.II. 891.
of double pleading. 612, &c.
against several defendants. 899, &c. 907.
trover. 865. 880. 893. 901.
waste. 865. 867, 8.
actions by paupers. 68, 9.
against bail. 234, 5. 249, Sec. 483. 241.
bankrupts. 182.
seamen and soldiers. 178, 9.
justices, constables, and officers of
the Excise axid Customs. 903.
by and against infants. 72. 477.
baron and feme. 1021.
executors and administrators. See tit.
Executors and Adininistrators.
on a habeas corfius. 352.
feigned issue. 901, 2.
of several counts. 888.
pleas of justification. 889.
issues, on an inclosure act. Id.
double pleading. 612, Sec.
double or treble, what. 902, 3.
when recoverable, by the plaintiff. 903.
defendant. Id.
how recovered. 903, 4.
suggestions for. 272. 442. 466. 876, 7, 8. 905, 4.
certificates. See tit. Certificates.
rule to be present at taxing : 905.
after a special verdict. 808.
taxation of, on judgment by default ;
final. 513.
interlocutory. 525.
' demurrer. 687.
verdict, &c. 808. 843. 904, 5.
affidavit of increased costs. 904, 5.
Vol. II. 3 U COSTS.
INDEX.
C6STS,
final;
judgments reversed for. 1129.
means of recovering ;
under a commission of bankrupt. 181, 2.
by action or execution. 905.
, arrest not allowed for. 200.
attachment: 437, 8. 905, 6.
rule for, absolute in first instance. 438. 906.
may be moved for the la^ day of term. 452
906..
requiring security for. 476, &c.
payment of, in former action. 479, 80.
setting off, against costs. 996, &c.
as between attorney zx\(\. client . See tit. Attomies,
COVENANT,
action of; 4. 10. 95, 6. 373, 4.
not within the statute of limitations. 16.
arrest in. 150, 1.
process in. 105.
declaration in. 376."
staying proceedings, on payment of what is due. 48?.
assessing damages, without a writ of inquiry. 515.
particulars of demand in. 535.
bringing money into feourt. 562. 565.
pleas in; 593.
when to be delivered. 622.
issues, by whom made up. 666.
damages, when some of defendants are acquitted. 803.
judgment in. 842.
costs in. See tit. Costs.
execution in. 911.
scire facias in, for damages arising after judgment. 1000.
1010.
COVENANTS,
dependent or independent. 382, 3.
to be performed at the same time. 383.
assessing damages, in debt on bond for performance of
508,9, &c. 1012.
COVERTURE, 591.
plea of, in abatement. 580.
debt on bond, 595. 599.
when pleadable after the last continuance. 775. 777.
when assignable for error. 1056,1107.
costs on plea of. 102 1 .
COUNSEL.
INDEX.
COUNSEL, how heard on motions. 461, 2.
attending by, on inquiry. 522.
COUNTER-AFFIDAVIT;
when received, on an arrest. 165, 6.
COUNTERMAND, of notice of trial. See tit. Trials.
inquiry. See tit. Inquiry.
COUNTS, See tit. Declaration.
pleas in abatement of. See tit. Pleaa and Pleading.
or matter superfluous, striking out. 441. 558, &c.
bad or inconsistent, how cured aftei? a general verdict. 802.
several, costs of. 888.
COUNTY-COURT. 37. 50. 465, 6.
COUNTY-PALATINE,
process into; 85.
direction of. Id.
service of. 14.8.
arrest on;
for what sum. 150.
by what authority. 191.
bail-bond on. Id.
sheriffs of, amenable to the court for contempts. 254, 5.
changing venue. 551, 2.
pleading to the jurisdiction. 573, 4.
mittimus to. 551. 672,3.
trial at bar. 769.
judgments. 856 (y).
costs. 870. 879.
execution. 332, 3.
error from: 1059.
direction of writ in Lancashire. 1066.
bail in. 1075.
alleging diminution in. 1 104.
false-judgment in -i.a77ca«/«re. 1140.
COURT of CONSCIENCE-ACTS,
attornies not in general subject to. 265,
mode of taking advantage of. 466.
costs on. See tit. Costs.
COURT-ROLLS; See tit. Inspecting Books, Sec.
motion to inspect and take copies of. 440. 442.
CRIMINAL-CASES, not within the statutes of amend-
ments. 661.
CRIMINAL-CONVERSATION, *
action for; 6.
declaiation in. 393.
costs in. See tit. Costs.
CROWN,
INDEX..
CROWN, See tit. King.
CUSTOM, what. 395.
CUSTOMS and BYE-LAWS ;
when and how discussed, on a removal by habeas corfms,
&c 347 S*
CUSTOM-HOUSE books, inspecting. 539.
CUSTOMS and EXCISE,
actions relating to, by whom brought; 468.
against officers of ;
limitation of. 22.
notice of. 73, 4.
where laid. 374.
bringing money into court. 564.
costs in. See tit. Costs.
CUSTOSBREVIUM. 31. 1093. 1110. 1114.
D.
DAMAGES,
what. 798,
how laid, in an action upon contract. 352.
trespass. 391, 2.
case: 399.
general. Id.
special. 400 .
assessing, on 8 8c 9 W. III. c. II. § 6. 1025, Etc. 1047.
§ 8. 508, 9, &c. 1012.
notes and bills, &c. without an inquiry. 514, 15,
16.
demurrer to evidence. 517, 18. 795.
excessive, or too small. 524. 819.
general, arrest not allowed for. 151.
cannot be brought into court. 563.
set off. 604.
-award of jury-process for assessing. 670, 1.
on verdict for plaintiff. 798.
defendant in replevin. Id.
nonsuit in replevin. Id.
in actions real. 799,
personal: 798.
assessing by the master. 514, Sec
how ascertained in general. 842 (n).
mixed: 799.
ejectment, &c,/rf, DAMAGEg,
INDEX.
DAMAGES,
in actions mixed;
dower. 799.
waste. 800,
guars itnfiedit, 8cc. Id.
in scire facias i See tit. Scire Facias.
error. See tit. Error.
single. 800.
double or treble. Id. 865, G,
nominal. 800.
in debt on bond, for performance of covenants. Id. 801.
1012.
when recoverable beyond the penalty. 801.
fixed or arbitrary. Id.
in tire: Id.
how rectified, on bad or inconsistent counts. 802.
several: 804, 5.
in a penal action, on a bad count. 802.
where there is judgment by default, or a demurrer to part.,
and an issue on other part. 670, 1. 802, 3.
contingent. 631. 671. 798. 804.
where some defendants let judgment go by default or
demur, and others plead to issue: 802, Sec.
when the latter are acquitted. 803, 4.
where defendants sever, or join in pleading. 804, 5.
omission of finding, when supplied by an inquiry. 806.
remittitur of part. 805, 6.
increased, in action for a mayhem. 806.
verdict security for, on anew trial. 819.
judgment reversed for. 1129.
DARREIN-PRESENTMENT, damages on writ of. 800.
DAY, oiretorna brcvium. 100.
rules. 961,2.
DEATH,
waiTant of attorney countermanded by. 495.
when judgment may be entered after. Id. 496. 846. 857.
plea of, in abatement, 579.
in what cases an abatement of the suit. 846, &c. 1024, 8cc.
execution after, o^Jieri facias. 915, 16.
of plaintiff, in general no cause for prisoner's discharge.
288, 9, 323.
when otherwise. Id.
no objection to defendant's discharge on the lords'
act. 964.
<rf prisoner in execution, remedy after. 958, 9.
DEATH.
INl)EX.
DEATH,
scire facias after. 991. 1009. 1024, &c,
of testator, when it need not be averred in scire facias. 1032.
principal, before returaof ca. sa. in what cases pleadable.
1044, 5.
parties, when assignable for error. 1056. 1 lor.
how assigned. 1 107^ 8.
when it abates a writ of error. 1096, &c.
DEBT,
action of; 4. 9. 10. 95, 6. 573, 4.
limitation of. 15, 16.
original writ in. 93.
process in.. 122. 105.
arrest in. 122. 150. 152, 3. 187.
outlawry in. 126.
declaration in. 376.
particulars of demand in. 534, 5.
pleas in. 593, &c.
on judgment:
limitation in actions of. 21.
staying proceedings in, pending error. 471.
assessing damages in. 515.
no waiver of the lien created by it. 850 (w).
suggesting rfer^as^awV. 1017, 18.
bail in error in. 1079.
reversal of judgment in. 1 128, 9.
costs in. 440. S79.
on recognisance; 237, 8. 994, 5, 6.
in nature of a statute-staple. 988.
when it may be commenced. 994.
staying proceedings in, pending error. 474, 5.
after render. 483.
bail in error in. 1 109, 10.
under 40s. staying proceedings in action for. 465, 6.
calling for particulars of. 534.
and costs, staying proceedings on payment of. 481, Sec
for rent, Sec. staying proceedings in. 482.
bringing money into court in. 562, 3.
error in. 1075, &c.
on bond;
limitation in actions of. 19, &c.
staying proceedings in. 483, 8cc.
changing venue in. 546. 548.
assessing damages in. 508, 9, &c. 1012, Sec.
DEBT,
I
INDEX.
DEBT,
on a promissory note, Sec;
bail in error in. 1079.
judgment in. 842.
costs in. See tit. Coats.
DECEIT, action for; 7. 393.
breach in. 389.
DECLARATION,
what. 361.366, 7.
upon a certiorari or habeas corfius. 349, 50.
recordari facias loquelam^ &c. 359,
against prisoners, in the actual custody of the marshal. 3il3,
4. sheriff, 8cc. 309.
when and how to be delivered. 311, 12, 13^
upon an attachment of privilege. 273.
ftfter an outlawry. 140(6).
against peers and membersof the House of Commons. 115,
when to declare in general. 361.
in chief: Id.
by bill; /rf.
time for declaring. Id.
further time. 362.
motion for plaintiff to declare peremptorily. /rf. 363.
by original; 440.
time for declaring, nonsuit, &c. 363, &c.
by the bye: 361. 365, 6.
by bill; /cf.
at the suit of the same plaintiff. Id. 402.
a third person. 366.
by original. Id.
parts of;
title. Id. 367, &c.
venue. See tit. Venue.
■commencement;
by bill. 376.
original. Id.
in actions upon contracts: 378.
the contract. Id.
consideration. 379.
inducement. 381.
averments;
what, and when necessary. 381, 2.
how made. 386.
of performance of conditions precedent. 381,
&c.
excuse far their non-performance. 386.
DECLARATION,
INDEX.
DECLARATION,
parts of;
in actions upon contract:
averment;
of facts necessary to ascertain plaintiff's de-
mand. 387.
request. Id.
notice. 388.
breach. 389.
damages. 390.
in actions for wrongs: ,
the injury complained of;
immediate. 390, 1.
consequential. 392.
inducement, in actions for malfeazance: 393.
affecting persons. Id.
real property. Id. 394.
personal property. 397, 8.
in actions for nonfeazance. 398.
misfeazance. 399.
damages, in trespass. 391.
case, 399, 400.
conclusion: 400.
pledges. 401.
qualities of;
correspondence with process: 401, 2.
in the names and description of the parties. 402, 3
cause of action. 404.
precision and brevity. 404, 5.
defects in;
how taken advantage of. 405.
cured. Id. 406.
copy of, by whom made. 406.
delivered, or filed: Id. 407.
absolutely. 409.
be bene esse. Id. 410.
Q. on process returnable the last return. 410.
paying for. 406. 408, 9.
filed, only good from the time of notice. 408.
amendment of. 391. 652.
in scire facias. See tit. Scire Facias. •.
DEEDS, &c.
must be delivered up by an attorney, on satisfaction of his
lien. r7, 8,
DEEDS,
INDEX.
BEEDS, See.
notice to produce. 736.
cannot be taken in execution. 917.
DEFAULT, See tit. Judgments by Default.
at Msi JPrius; 717.
repleader not allowed after. 830.
DEFEAZANCE,
on warrant of attorney. 491. '
DEFENCE,
when and how made. 584.
DEMAND,
of copy of warrant; 74, &c.
evidence of service of. 76.
declaration; 363, &c.
on removal by fione or recordari, S^c. 359.
plea; 317. 432, 3.
in scire facias. 1041.
replication, Sec. 646.
money on award; 760.
by whom and how made. Id.
costs. 25 K 906.
DEMURRERS,
what. 647.
history of. 648, &c.
to the whole, or part of declaration. 647.
pleas, replications, Sec. 627. 419. 647.
general; 647.
what may be taken advantage of under. 650.
cannot be waived. 623. 66 1.
making up issue on. 666.
special; 648
for auplicity. 647, 8.
misnomer. 4U3.
strikin}^ out. and giving general demurrer. 623. 651.
rule to abide by. 623, 4. 65 1.
in scire faceaf. See tit. Scire J^acfas. ^
error. 200, 8cc. and see til. Error.
must be signed by counsel. 650.
when considered as issuable pleas. 428, 9, 30.
amendments after. 656.
demurrer-book; 666.
how it concludes. 675.
by whom made up. 6(')6.
when returned: 676, 7.
after paper-book. 678.
entering of record. 682, 3.
Vol. II. 3 X DEMUR-
INDEX.
DEMURRERS,
proceeding to argument on; 679, 80. 6'84.
where there are several issues, in law and in fart: 684,
5.
assessing contingent damages on. 798. 804.
concilium; 438. 442. 684.
motion and rule for. 685, 6.
rule for, need not be served. 686.
considered as a step in the cause. Id.
proceedings on. See tit. Motions.
entering cause for argument: 686.
notice need not be given of it. Id.
delivering demurrer-books. 686, 7.
argument in C. P. 459 (Ji).
motion for judgment. 438. 442.
judgment on, for plaintiff;
in abatement. 687.
bar: Id.
interlocutory. 508. 687.
final. Id.
motion in arrest of, not allowed after. 625.
costs on. See tit. Costs.
to evidence, what. 791.
how they arise. 785, 6.
after bringing money into court. 567 {u).
do not apply to the pleadings. 792.
not allowed in the king's case. Id.
where the opposite party must, or may join in demur-
rer. 792, o
upon evidence in writing. 792.
parol evidence; Id. 793.
of a circumstantial nature: 793, 4.
construction of. Id.
under the control of court or judg^: 794.
subject to appeal. Id.
how taken and returned. Id.
assessing damages on. 517, 18. 795.
refusal of, a good ground fbr bill of exceptions. 786, 7.
794.
DEPARTURE, in pleading. See tit. Pleas and Pleading.
DEPOSIT,
of money in sheriff's hands, under stat. 43 G. III. c. 46.
§ 2. 200, &c.
paying it into court. 200, Sec.
to plaintiff. 200. 439.
repaying it to defendant. 200. 440.
DEPO-
fl
INDEX.
DEPOSITIONS, of witnesses on interrogatories, 740, Sfc..
DETINUE,
action of; 7. 10. 95, 6.
limitation of. 15.
original writ in. 93.
process in: 105. 122.
of outlawry. 126.
declaration in. 376.
pleas in. 591. 596, 7.
inquiry of damages in. 5I&.
judgment in. 843.
costs in. See tit. Costs.
execution in. 911.
DEVASTAVIT. 929. 933. 1018, See.
DEVISEE, judgmentagainst,on the Stat. 3 W.^M.c. 14.856,
DIES DATUS. 363. 627.
DILATORY PLEAS. See tit. Pleas and Pleading.
DIMINUTION. See tit. Error.
DISCHARGE,
matters in, when pleaded or given in evidence. 592, 3.
596, 7.
DISCONTINUANCE,
of process. See tit. Continuance.
plaint in county, no objection to removal by recordari^
&c. 358.
pleading; 238. 324. 617, 18. 626, 7.
rule for, when and in what cases allowed: 628, 9.
service of, when not a discontinuance. 629.
without or upon payment of costs 628.
proceedings thereon. 629.
attachment lies not, for the non-payiinent of Qosts. Id.
arrest after. 185.
aided by the statute of jeofails. 835.
cured by appearance of party. Id.
judgment on. 841.
costs on. See tit. Coats.
of writ of error. 1099.
DISSEISINS, double or treble damages on. 799 (i/).
DISTRESS. 917. 927. 947.
DISTRINGAS,
by original; See tit. Proceta.
costs on. See tit. Costa.
in the exchequer on venire. 62 (a),
taking partnership effects under. 108.
DIS-
INDEX.
DISTRINGAS,
to compel appearance, on removal by ^lone or recordari,
&c. 359, 60.
for bi'inging in the jury. See tit. Jury -Process,
against the ba.liff of a hberty. 257. 261 (g).
iate sheriff: 260, 1.
to compel him to sell goods, taken on a Ji./u.
935.
tenere curia7n- 1 140.
DISTURBANCE, action for; 7.
declaration in. 396, 7.
DOCKETING ISSUES. 681.
i'.ivli:,meni:b. See tit. Judgments.
DOUBLE-PLEAS; See tit. Pl^as and Pleading.
costs of See tit. Co.^tfi.
or treble damages. See tit. Damages.
costs. See tit. Costs.
DOWER,
pleas in. 610.
damages in. 799.
costs in. See tit. Costs.
bail in error in. 1081, 2.
DUPLICITY, in pleading. 618. 647, 8. 1 1 18.
DURESS,
when pleaded, or given in evidence. 591. 595, 6.
DURHAM. See tit. County -Jxalatine.
E.
EJECTMENT, 376.
what shall be deemed good service. 443.
motion for judgment in, against casual ejector. 442.'
dispensing with personal service. Id. 443.
admitting landlord defendant. 443.
leave to take out execution, after he has failed.
Id. 909, 10.
staying proceedings in;
pending error. 472, 3.
till security be given for costs. 476, 7. 479.
payment of costs of former action. 479, 480,
for non-payment of rent. 486, 7.
by a mortgagee. 487, 8.
particulars in. 535.
pleas in, to the jurisdiction. 573.
EJECT-
INDEX.
EJECTMENT,
trials at bar in. 768, 9.
new trials in. 816.
damagesin. 799.
costs in . See tit. Costa.
necessary, after elegit. 941.
note on lords' act. 970.
scirefacias in. 1002, 3.
bail in error in; 1081, 2.
in what sum they must justify. 1085.
death of nominal plaintiff in, not assignable for error. 1 107.
ELECTION, of Action. 9.
ELEGIT,
what. 911. 937, &c.
when it lies. 938.
against whom. Id. 95$.
after a year. 938, 9. 1004, 5. *
in different counties. 939.
upon several judgments. 852.
proceedings under;
against the goods. 939.
lands. Id. 940. 950.
terms for years. 940.
notice of executing. Id.
inquisition and return. Id.
delivering of a moiety. 941. 950.
ejectment; 941.
evidence in. Id.
further process on; Id. 942.
after an eviction. Id. 951.
interest allowed on, in equity. 942, 3.
creditor by, when entitled to priority against the crown.
944. 946.
extent under, when pleadable. 1046.
ELISORS. 85. 262.7^:0.
ELY, Isle of,
ctrtiorari to. 334.
process into, how directed. 913 (n).
ENLARGED-RULES. 456.
ENTERING ISCUE. See tit. Jsme.
Cause. See tit. Trials.
ENTRY, of writ, &c. to avoid the statute of limitations. 91,2,
name and place of abode of attornies. 47, 8.
recognisance. 233,
proceedings in «czre^c/a*. 1041.
error. 1121, 2. 1124.
EQUITY
INDEX.
EQUITY of REDEMPTION; 487, g.
not affected by an execution. 919.
ERASURE,
evidence on non eat factum. 595.
ERROR, writ of,
what. 1051.
by whom broug-ht: 1052.
a plaintiff to reverse his own judgment. Id. 1 100.
on judgments against yc'/ne-TOT'fn's. 1052, 3.
principal and bail. 1053.
several defendants: /rf. 1054.
summons and severance. 1054,
5. 1 109.
when it lies;
generally: 1056.
for error in fact. Id. 1057. 1 107.
law. 1058. 1108, 9.
for denying oyer, when demandable. 530.
granting or denying a repleader, improperly. 829.
to reverse an outlawry. 139.
on a bill of exceptions. 790, 1.
when not;
generally:
where the defect is aided by verdict. 826, &c. 1056.
amendable. 651, &c. 840. 105 6.
cured by the statutes of jeofails.
832, Sec. 1056.
fbr defects in mesne-process. 124.
granting oyer improperly. 530.
after a special case. 809.
, judgment in .scire facias. 1048.
the death of nominal plaintiff in ejectment. 1 107.
for any thing which contradicts the record, Sec. 1 108,9.
error in fact and in law together. 1 108. H 18.
upon what judgment. 1064.
in the same court;
coram nobis:
when it lies; 1056, 7.
for error in fact. 1056.
process. Id. 1057,
after an abatement, &c. 1057.
direction of. 1056.
form of. 1067, 8.
allowance of. 1070.
how far a sujiersedeas of execution. 1083, 4.
ERROR,
INDEX.
ERROR, writ of,
in the same court;
coram nobis:
unnecessary to transcribe on. 1088.
sue out a scire facias. HOC.
rule to assign errors. 1105.
issue on, how entered. 1121.
tecovA oinisi fii-ius. 1122.
•execution on. 909. 1135, &c.
cost on reversal. 1 135.
in a superior court;
to the King's-Bencb; 1058.
from the Common pleas. Id.
inferior courts: Id.
except in London. Id.
the cmywe-ports. Id. 1059.
stannai'ies. 1059.
counties-palatine. Id.
Wales. Id.
from the King's Bench ;
to the Exchequer-chamber. 1059, &c.
House of Lords. 1061, 2.
from the law-side of the Exchequer;
in England. 1063.
Scotland. Id.
from Ireland. Id. 1064.
when brought;
before judgment. 1064.
after judgment: /<:/. J 065.
statute of limitations. Id.
how sued out. 1065.
direction. 1066.
form of 1067, &c.
teste and return. 1069.
sealing. 1070.
allowance and service. Id.
how far a su/iersedeas ;
in genera!:
when sued out before final judgment. 1070, 71.
after final judgment. 1071, 2.
execution begun. 1072, 3.
vhei*e bail is required. 1073.
on error corain riobis. 1C83, 4.
proceedings against prisoners, how affected by. 318, 19.
327, 8.
motion for leave to take out execution pending. 439.
•striving proceedings pending. 470, &c.
BO objection to setting oft' debt on judement. 604.
ERROR,
INDEX.
ERROR, writ of, ^ J
an answer to a motion for new trial. 821. ^
repleader cannot be awarded after. 830.
amendments after: 662, Sec.
costs on. 664. 1114.
by principal, may be pleaded by bail. 1044, 5.
bail on. See tit. Bail.
certifying or transcribing the record: 1088.
rule ior, i n the King's-Bench and Common-Pleas./cf. 1089.
practice in the House of Lords. 1089.
when the record is certified, or only a transcript. Id. 1090.
mode of certifying or transcribing;
in an inferior court. 1090, 91.
the Kmg's-Bench and Common-Pleas. 1091, 2.
House of Lords. 1092,3.
non-firo^ for not transcribing. 1093.
amendment of;
at comrnon-Iaw. 1093, 4.
by the 5 Geo. I. c. 13. 1094.
costs on. Id.
quashing;
ground of. 1095.
motion for, in what court. Id.
when it may be quashed in part, &c. Id.
costs on. Id. 1096.
abatement of;
by tl:e death of the parties. 1096.
chief-justice. 1097, 8.
the prorogation or dissolution of parliament. 1098.
bankruptcy. Id. 1099.
marriage, Sec. 1099.
discontinuance of. Id.
scire facias quare executionem non, in K. B. 1009.
1100. 1141.
what, and when it lies. 1 100.
out of what court, and when it issues. Id.
direction. 1101.
form of. Id.
teste and return. Id. 1102.
need not lie four days in the sheriff's office. 1 102,
rule to appear to. Id.
whether the plaintiff" in error may plead thereto. Id.
1103.
consequence of not assigning errors. 1 103.
alleging diminution,
in the exchequer-chamber;
what,and when necessary. 662, 3. 1100. 1103,4.
at what time it must be alleged. 1118, 19.
not allowed against the record. 1 104. 1113.
in inferior courts. 1 104.
rule for, when and how e:iven. Id. 1105.
II
INDEX.
ERROR, writ of,
alleging diminution,
in the exchequer-chamber;
non-firoa for not alleging diminution. 1 10-".
in the House of Lords. 1 104 {d). 1112.
rule to assign errors;
when and how given. 1 105.
on error coram nobis, &c. Id.
in the King's-Bench. 1 106.
Exch-quer-chamber. Id.
House of Lords. Id.
assignment of errors;
in fact. 1 107, 8.
law; 1108.
common. Id.
special. Id.
in fact and in law, not assignable together. Id.
by several defendants. 1 109.
set aside, when calculated for delay. Id.
delivering or filing. Id.
certiorari for an original, Sec.
what, and when necessary. Id. 1 1 10.
direction. 1110.
teste and return. Id. 1111.
amendment. 1111.
course of proceeding thereon; Id.
in the King's-Bench. Id.
House of Lords. Id. 1112,
petition for original: 1113.
practice thereon. Id. 1114.
return thereto. 1112, 13.
in what cases the parties may have a second certiorari
11 14, 15.
when the court w ill award it, for their own information.
1119, 20.
scire Jacias ad audicndian errores. in K. B. 1115, 16. 1141.
/irocessiim et recordum. 1034.
1116.
compelling plea or joinder, in the Exchequer-chamber.
1116.
House of Lords. Id.
plea;
common: Id. 1117.
in nuUo est erratum. 1117, Sec.
special: 11 20.
release of eri-oi's. Id. 1121.
delivering or filing, 622. \Vl\.
VoT.. TT ■\ Y ERROK'
INDEX.
ERROR, writ of,
demurrers. 622. 1116. 1120.
issues;
making up and entering: 666. 1121,2,
in the King's-Bench : 1121, 2.
on error coram nobis. 1121.
in the Exchequer-chamber. 1124.
trial of issues in fact. 1122.
arguing errors in law;
in the King's-Bench. 1122, 3.
Exchequer-chamber. 1123, 4.
House of Lords. 1125.
motion for judgment. 438. 442. 1125.
judgment of affirmance or reversal. See. 1116. 1122. 1126
when the court are divided in opinion. 1127.
in part, or for the whole. 1 128.
what judgment shall be given, on the reversal of the
first. 1130
damages: 1131,2.
interest. 1132, &c.
costs. 890. 1131, 2, 5.
execution; 1008, 9. 1114. 1135, &c.
outofvvhatcourt. 912. 1136, 7.
remittitur of the proceedings. 1 135, 6.
direction. 1 137.
return. Id.
restitution after; Id.
to what the party shall be restored. Id. \ 1 38
ESCAPE,
on mesne-process;
action for: 207, 8. 255, 6, 7.
how defeated. 208.
venue in, cannot be changed. 548.
on execution;
from the tipstaff, on a render. 239.
declaration for. 594.
new execution after. 960.
warrant on. Id.
retaking aftei-, must be pleaded. 599,
ESCROW. 595.
ESSOIN; 100. 105,6.415, 16.
not allowed in personal actions. 105.
at nid /irius. 716, 17.
ESTOPPEL,
what, and how pleaded. 419. 582 (z). 585. 591. 621. 626.
637.
EVICTION.
i
INDEX.
EVICTION. 941,2.951,2.
EVIDENCE,
written or unwritten: 734,
public or private. Id.
circumstantial. 793, 4.
must be the best the case admits of. 734, 5.
governed by the pleadings. 734.
what is to be proved ;
on general issue. Id.
special issue. Id.
manner of proving it. Id.
of payment, or release, in debt on bond. 19, 8cc.
of interest by indorsement. 21. 2.
service of copy of demand of warrant. 76.
bill of costs. 286.
rules of court. 437.
plaintiff 's demand necessary, notwithstanding admission
in defendant's bill of particulars. 537.
notice to produce deeds. Sec. 736.
private papers. Id. (n).
books. 737.
commencement of action, or suit pending. 249.
prison-books, for what purpose allowed. 322.
on execution of inquiry: 523.
after judgment on demurrer. 512. 687 (q).
plaintiff not bound to disclose it, before trial. 534.
not allowed to be given out of particulars. 537.
when it must arise in a particular county. 554, 5. 796, 7.
demurrer to. See tit. Detnurrers to Evidence,
admitting or rejecting improperly, a good ground for bill
of exceptions; 786, 7.
or new trial. 818.
on both sides, a ground for refusing new trial. /(/.
judge's report of, on motion for new trial. 82 1, 2.
in ejectment, founded on elegit. 941.
in debt on judgment, suggesting a devastavit. 1018.
EXCEPTION-DAY. 100.
EXCEPTIONS, bills of. See lit. Bills of Excefitiom.
EXCHEQUER, court of;
means of commencing actions in. 62 (a).
error from; 106.5.
in Ireland. 1 104 {d).
interest on affirmance in. 113"
EXCHF.'
INDEX.
EXCHEQUER-CHAMBER,
■writ of error to; 1059. 1063.
in Ireland. 1 104 ((/).
lies not for error in fact. 1057. 1061, 2.
return-clays in. 1 123.
EXCISE unci CUSTOMS. See tit. Customs and Excise.'
EXCOMMUNICATION,
plea of; 579. 585.
after the last continuance. 775.
juds^ment on. 589.
EXCOMMUNICATO CAPIENDO. 960.
EXCUSE,
matter of, must be pleaded in trespass. 597.
of performance, when pleaded or given in evidence. 592,
&c. 596.
EXECUTION,
for the plaintiff. 911.
defendant. Id.
when sued out;
in general. 909.
after writ of error. 1070, Sec. 1083.
false-judgment. 1141.
injunction. 1006, 7.
agreement to stay execution. 504, 5, 909. 1005.
1084.
with or without leave of court. 762. 909, 10.
scire Jaciai ;
after a year. 1000, Sec.
change of parties. 1021, Sec.
against different defendants, for the same debt. 910.
heir, when charged as tertenant. 1032.
executors and administrators. 1017, £cc^
bankrupts. 1013, kc.
insolvent debtors. 1016, 17.
hundredors. 118, &c.
by or against survivors. 1028, 9.
for what sum ;
in debt, for a penalty. 910, 11.
on annuity-bond. lOU.
after award. 910.
different kinds of. 91 1, 12,
out of what court. 332,3.912.
in what order. 912.
expences of, levying. 911.
hy Jieri facias. See tit. Fieri Facias,
elegit. See ill. Flegit.
EXECU-
INDEX.
EXECUTION,
by extent. See tit. Extent.
capias ad satisfaciendum. See tit. Capias ad Satisju-
ciendum.
prisoners in. See tit. Prisoners.
poundage on. See tit. Poundage,
m scire facias. See tit. Scire Facias.
in error. See tit. Error.
EXECUTORS and ADMINISTRATORS,
how far they represent the testator or intestate. 1030..
actions. by or against; 8. 18, 19. 26. 376.
Hmitation of. 23. 26, 7.
joinder in. II, 12.
affidavit of debt by. 157. 164.
arrest in actions against. 83. 172, 3.
not entitled to the privilege of attornies. 268,
declaring upon general process. 403.
special process. Id.
giving warrants of attorney. 491, 2. 498..
pleas by or against, in abatement. 580.
bar. 590. 593.
fiuis darreifi conti7mance. 775.
in scire facias. 1046, 7.
bringing money into court in actions by. 564.
set-off in actions by or against. 605.
judgments against;
as in case of a nonsuit. 703.
upon a verdict, 8cc. 1017. 1019, 20.
in assumpsit^ 8cc. 842.
debt. Id.
of assets z«/«mro. 633. 1017, 18, 19.
nunc pro tunc. 847.
when entitled to costs;
in replevin. 890.
where one of several pleas is found for them. 894, 5
when not;
where one is acquitted. 901.
when liable to costs;
on a judgment o^ nonpros. 415. 893.
« discontinuance. 628. 893.
for not proceeding to trial, according to notice. 893.
on interlocutory motions. Id.
nonsuit or verdict: Id.
as for a contempt. 892. (a:),
forpleading falselv. 894, 5.
EXECU
INDEX.
EXECUTORS and ADMINISTRATORS,
when not liable to costs;
on taxing testator's bill of costs. 283.
judgment as in case of a nonsuit. 703 (j/).708. 894.
nonsuit or verdict. 893, 4.
judgment of assets infutuvo. 894, 5.
in prohibition. 870.
scire facias. 1048,9.
proceedings by or against, on the stat. 8 8c 9 JPT. III. c.
II. § 6. 848, 9.
in what cases personally liable on award. 758, 9.
not affected by judgments, unless docketed. 857, 8.
within the court of conscience acts. 876.
executions against;
in general. 911. 1019.
for their own debts. 924.
offuture assets. 1018, 19.
returns to. 929. 933.
after return of 7ndla bona. 933. 1019, 20,
devastavit. 929. 9Z3. 958. 954. 1019,
20.
signing note on lords' act. 970, 71.
scire facias by or against. 1025, Sec.
error by; 1055.
bail in, not required. 1082.
proceedings in. 1096, 7.
Avhen liable to costs on affirmance. 1 132.
EXIGI FACIAS, writ of; 127,8. 955, 6.
de novo. 123.
EXONERETUR. See tit. BailsindBazl-fdece.
EXTENT,
for the debt of the cro^vn: 943.
of record. 944.
4iot of record: Id.
immediate. 943. 948.
in aid. 944. 948, 9.
with respect to lands. 944, £cc.
personal property. 916. 928. 946j
&c.
on a statute-merchant: 943.
capias si laiciis. 949.
writ to extend the lands, &c. Id.
against a clerk. Id.
statute-staple. 943,
EXTENT,
INDEX.
EXTENT,
on a recognisance in nature of a statute-staple: 943.
process against the body, lands and goods. 949, 50.
liberate. 949. 952. 980.
against an heir, on the obligation of his ancestor. See tit.
Heir.
EXTORTION. 205. 981.
EXTRA-COSTS. 904.
Viamy costs on new-assignment of. 885.
F.
FALSE-IMPRISONMENT,
action of; 7. 582.(£).
limitation of. 15.
costs in. See tit. Costs.
FALSE-JUDGMENT, writ of;
what, and when it lies. 1052. 1 139.
by whom sued out. 1 139.
form of. Id.
when it does not lie. Id.
bail on. Id. 1140.
suing out, service and return. 1 140.
from what time it is a supersedeas. Id.
assignment of false-judgment. 1 141.
scire facias ad audiendum error es. Id.
joinder. Id.
subsequent proceedings Id.
costs. Id.
execution. 912. 1141.
FALSE-RETURN,
action for; 25 5, &c. 930.
cannot be stayed, on payment of the money levied. 488.
changing venue in. 548.
FAVOUR, Challenges to. See tit. Jtiry.
FEES,
payable to the king, on writs of recordari^pone, 8cc. 97 (y).
by prisoners. 296 {a). 302.
to the marshal, at the assizes. 773 (t').
action for. 275, kc. 905. 980.
non-payment of, noexcusc for disobcying/jfldfas cor/iusy &c.
FEIGNED ISSUE; 665.
costs on. Sec tit. Costr.
FEME-
INDEX.
FEME-COVERT. See tit. Baron and Feme,
FERRIES,
disturbance of. 396 {g).
FIAT,
for admission oi prochein amy, or guardian. 71,
original writ. 104.
FIERI FACIAS,
what. 911. 913.
form of. 913.
teste and return; 913, 14. 955.
by original. 955.
signing and sealing. 914.
amendment. Id.
relation of;
at common law. Id.
by the statute of frauds: /(i. 915.
as between the parties. 915.
after the death of either. Id. 916
against purchasers. 914, 15.
the king. 9 1 6.
betw^een different plaintiffs. /<:/.
how long executable. 1072, 3.
what may be taken under it;
in general. 917.
terms for years: Id.
how to be assigned. 918.
goods fraudulently sold. 919, &c.
in actions against partners. 921. 1 165.
what cannot be taken under it;
bank-notes, &cc. 917.
goods distrained, Sec. Id.
fairly sold. 920.
of third persons. 921.
inquisition of property on. 922.
after act of bankruptcy. Id. 923.
against future effects of bankrupt. 1014, 15.
insolvent. 1016, 17.
of goods of wife or testator, in action against husband or
executors. 923, 4.
sheriff's power and duty on. 924, 5.
landlord's lien for rent: 925, Sec.
how enforced. 927.
rule to return. 928.
enlarging time for returning. Id. 921.
different returns to. 928, 9..
FIERI
INDEX.
FIERI FACIAS,
proceeding's on return oi nulla dona;
alias and filuricf:: 929.
need not recite the former writ. 934.
teste and return. 931.
action for falfe-return.930.
testatum., and when necessary to have a previous^eK
facias. 929, &c.
non omittas. 929, 30.
against a beneficed clerk. 931, Stc.
proceedings on return of ^en feci as to part;
feri facias for the residue: 934.
must recite the former writ and return. Id.
proceedings on return ol fieri fci generally;
action against the sheriff, for money levied: 933.
not within the statute of limitations. 934.
proceedings where goods remain unsold;
by venditioni ex/ionas. 934, 5.
distringas against the late sheriff. 935.
motion to set aside. Id.
difference between erroneous and irregidar judgments and
executions. .?36.
restitution on reversing or setting aside judgments. 936, 7.
1138.
levy under, when pleadable. 937. 1046.
FIERI FECI,
return of; 929.
proceedings on. 933.
FINE,
scire facias OX) error to reverse. 1034.
direction of writ of error. 1066, 7.
transcript only removed from C. P. 1090.
FINES, on orii.',in'al writs; 97.
deposit to answer. 200.
FIXTURES, when liiibie to be taken in execution. 917.
FOREIGN-ATTACHMENT; 264.
pica of 592.
when a good answer to proceedings on awai'd. 7.')9.
FOREIGNERS; 230 477, &c.
limitation of actions liy. 18,19.
F'OREIGN- Judgment. 515.
Money. See tit. Money.
Plea. 587.
FRANCHISE; 191 (/;).
disturbance of. 396 (g).
FRAUD,
in obtaining warrant of attorney. 491
Vol.. 11. 3 Z ' FRAUD.
INDEX.
FRAUD,
in contract, cannot be gone into on executing^ inquiry. 525
may be given in evidence, on non est factum 595.
in sale of goods, will not defeat execution. 919, 20.
FREf:HOLD'-TENANT,
when allowed to inspect books, &c. 540, 41.
FREEHOLDERS-BOOK. 725.
FRESH-PURSUIT,
recaption on, must be pleaded. 599.
FUGITIV'ES. 182, 3. 306 (m). 633.
FURTHER PARTICULARS. See tit. Particulars.
GAMING,
statute of, when pleaded or given in evidence. 591. 596-
house, action for keeping. 468.
GAOL. 200, &c.
GAOLERS, their duty. 204.
punishment of. 205, &c,
GENERAL-DAMAGES,
cannot be set off. 604.
brought into court. 563.
GENERAL-ISSUE'. See tit. Pleas and Pleading.
pleading, when allowable. 619.
GLEBh-LAND, not extendible on ele^t. 940.
GOOD JURY See tit. Jury.
GRANT, title by, how pleaded. 395.
GUARDIAN. See tit. Jipfiearance and Infant.
GUILD ABLE. 191 (n).
H.
HABEAS CORPUS,
in civil cases. 296.
cum causa. 297. 299. 309.
to remove a defendant. 296, 7. 309.
discharge bail. 239.244. 298.
ad resfiondendum. 300.
saihfaciendum. 301. 322.
testijicandum. See tit. Witnesses.
how the defendant may be removed thereby, into thr
custody of the marshal. 301, &c.
how long he must remain there. 302, 3.
HABEAS
INDEX.
HABEAS CORPUS,
for the removal of causes from inferior courts;
what, and when it lies, and when not. 335, 6,
out of what court it issues. 336.
direction. Id.
form of Id.
how returnable. Id.
ground of removal by . Id.
effect of 337.
receipt and allowance: Id.
in what stage of the cause. Id. 338, 9.
in causes under^x'p pounds. 339.
ten pounds. 340.
return of, when and how made. 341.
what is good, and what not. Id.
effect of filing. 348.
bail on ;
in the court below. 342, 3.
above : Id.
when and how put in, except-
ed to, and justified. 343, 6tc.
how far liable. 345, 6.
firocedendo;
what, and when it lies, and when not. 346,
&c.
may be granted after the return is filed. 348.
declaration on;
de novo. 350.
in what time delivered. 351.
venue in. Id.
non-firofi. Id.
time for pleading. Id. 352.
replication of, to plea of statute of limitations. 352.
costs. Id.
HABERE FACIAS POSSESSIONEM; 950.
or seinnamy poundage on. 980.
HALF-PAY, of an officer, not saleable. 968.
HEADBOROUGHS. See tit. Comtables and Headborougha.
HEIR,
when and how liable, in case of alienation. 853, 4.
judgment against- on the obligation of his ancestor; 853.
general. 854, 5.
special; Id.
of assets infnturo. 1018.
on an issue oi ricns fier discenl, 854, 5.
docketing. 857, 8.
HEIR,
INDEX.
HEIR,
execution at^ainst;
on a general judc^Tfient. 952, 3.
special judgment. 953.
where he is charged as tertenant. 1032^.
scire facian against; 1018.
when not necessary. 1034.
HEIR and TEKTENANTS,'
el' git against. 938.
scircfacian against; 1032, &c.
into what county. 1035, 6.
returns to. 1038.
declaration on. 1042.
pleas by. 1043, 4,
HIGH-BAR-Monev. 463.
HIGHWAY ACTS;
bringing money into court under. 564 {/).
HOUSE of COMiMONS. See tit. Members of the House of
Commons.
LORDS,
writ of error to: 1058, Sec. 1062,3.
lies not for error in fact. 1057.
HUE and CRY, statutes of. 116.
HUNDREDORS,
mode of proceeding against; 61 (a). 77. 94. 109. 171.
on the statutes of hue and cry. 116.
riot-act. 119.
black-act. Id.
for seizing wheat, &c. 1 17 (/).
destroying mills, &c. 117.
I, J.
IDIOTS,
appearance by. 63.
JEOFAH.S, 514. 525. 664.
statutes of, and decisions thereon; 832, Stc.
applicable to the original writ. 832, 3.
warrant of attorney. 833.
declaration and pleadings. 406. 834, 5 .
issue and similiter. 835.
jury-process. 836.
extended to judgments by default. Sec. 838, 9.
not appHcable to criminal cases, or oenal actions. 839.
IMMATERIAL ISSUES. See tit. Issues. '
IMPARLANCE,
INDEX,
IMPARLANCE,
what. 417.
general. Id.
special; Id.
not allowed without leave of the court. 418.
general-special. 417.
what may be pleaded or done after it. 418, 19. 528. 576.
585, 6.
plea after, how taken advantage of. 419. 586.
in what cases formerly allowed. 419, 20, 21.
at this day. 424, 5.
when not allowed: 105, 6. 424, 5.
on a habeas corjius. 35 1, 2.
pone or recordari^ Sec. 360.
entry of, by bill. 668.
not necessary by original. 672.
between plea and replication. Id.
certiorari for, how directed. 1110 (w).
IMPRISONiMENT. See tit. False-Lnfirisonment .
INCLOSURE-ACT,
costs in action on. 889.
references on. 744.
mode of enforcing award on. 763.
INDEBITATUS ASSUMPSIT. 3.
INDEMNITY-ACTS. 39.
INDIA-COMPANY, Books of, inspecting. 539.
INDICTMENTS, trials on. 701.
INDORSEMENT,
on bond, when evidence. 21, 2.
of promissory note, need not be averred. 389.
notice to plead on declaration. 407, 8.
INDUCEMENT, to declarations on contracts. 381.
for wrongs. 393, Sec.
certainty of 405.
INFANCY,
pleas of, in abatement. 579, 80.
bar. 591. 596. 599. 610.
mode of replying to. 637 (/).
INFANTS,
limitation of actions by. 16.
must sue by lirocluin amy. 69, 70.
cannot inform on penal statutes. 70.
not privileged from arrest. 183, 4.
must defend by guardian. 70.
mode of appointing //rc/c/irz« amy., or guardian: Id. 71.
annexing copy of rule to declaration or plea. 71.
INFANTS
INDEX.
INFANTS,
at what age they may be outlawed. 126.
appearing by attorney, error: 1056. 1107.
in what cases aided. 833.
warrants of attorney by, voidable. 491, 2.
costs in actions by or against. See tit. Costs.
executions against. 954.
certiorari for admission of firochein amy, how directed.
11 10 (w).
INFERIOR COURTS; See tit. Jccedas ad Curiam, CWtio-
rari. Habeas Corfius, Pone, and Rec or dan facias loquelam,
what shall be deemed a commencement of suit in. 25, 6.
proceedings in, when amendable. 664.
process in, not amendable. 661.
new trials in. 8 16.
judgments in;
costs on. See tit. Costs.
execution on, after removal. 332, 3. 1009 (0-
form of scire Jacias on. 1008, 9.
error from; 1058, 9.
bail on. 1075, &c.
INFERIOR TRADESMEN,
costs in actions against. See tit. Costs.
INFORMAL ISSUES. See tit. Issues.
INFORMATION,
affidavits for, or on shewing cause against, when entitled.
450, 1,
rule for, when granted towards the end of term. 453.
INJUNCTION. 318, 19. 327, 8.625. 1006.
IN NULLO EST ERRATUM,
plea or joinder of. 1 108. 1 1 1 1, 8cc. 1115, &c.
INQUIRY, Writ of;
what. 513, 14.
on the Stat. 8 8c 9 JV. III. c. ll.§ 8. 508,9.512.
to whom directed. 513.
form of. Id.
amended. Id. 514.
return of. 514.
when dispensed with, in actions on notes or bills. 439. 514,
Sec.
in what cases allowed, for supplying an omission of the
jury at the trial;
in guare iinfiedit. 517.
on a demurrer to evidence. 517. 18. 795.
in actions against overseers. 518.
in what cases not allowed;
in dctinw. 516.
re/devi77. 5 1 7. INQUIRY,
INDEX.
INQUIRY, Writ of;
to inquire of the value of lands descended, on the stat.
3 IV & iM.c. 14. § 6. 855, 6.
when executed before chief-justice, or judge of assize.
439. 518, 19.
motion for good jury. Id.
noticeof executing; 55. 519, 20.
after notice of trial. 520.
on asctrp-^eri-'mqii\ry. 1020.
before chief-justice, or judge of assize. 512. 520.
short notice. 520.
term's notice. Id. 1003 (w).
continuance. 522.
countermand. Id.
time and place of executing. 520, &c.
when left at sheriff's office. 522.
notice of attending by counsel. Id.
execution of, may be adjourned. Id.
evidence on; 523,
after judgment on demurrer. 512. 687 (y),
costs for not proceeding to. 441. 522, 3.
return of. 523, 4.
inquisition on;
rule for judgment. 523.
motion to set aside, by the defendant. 442.
plaintiff: 439. 524.
grounds of. Id.
when made. Id.
stamping. Id.
taxing costs. Id.
certiorari for, how directed. 1110 (u).
Avant of, aided. 525.
new writ and inquisition ordered. Id.
costs on, in trespass. 883.
actions for words. 878, 9.
INQUISITION,
upon outlawry. 5. 135, 6.
writ of inquiry. See tit. Inquiry,
^ert Jacias, to determine property. 922.
elegit, and return. 940.
INSANITY,
persons affected by, not within the statute of limitations. 16.
no ground for discharging defendant. 183, 4.
bail. 184.
may be given in evidence, on fion ett factum, 595.
INSIMUL
. INDEX.
INSIMUL COMPUT ASSENT. 3.756.
IN30L V ENT-D KBTO RS,
acts relating to; 962, &c.
attornies excepted out of. 269.
when and how discharged, under the lords' act. See tit.
Prisoners .
compellable to deliver up their effects. 971, Sec.
actions by assignees of. 8.
proceeding to judgment, Sec. in their names. 849.
not liable to be arrested. 182, 3.
not entitled to judgment as in case of a nonsuit. 706, 7.
future effects of, how far liable. 978. 1016, 17.
judgments agiiinst. 633. 1016, 17.
by assignees of. 907.
executions against. 1016, 17.
scire facias against. Id.
INSPECTING BOOKS, &c. 440. 442.
of a public nature: 538.
books of the sessions, &c. 539.
and court-rolls of manor. 540, L
of a corporation. 541.
of a private nature. 534. 540. 736 {ji).
rule for, when made: 542.
on information. Id.
mandamus. Id.
inaction. Id.
INSTALMENTS,
staying proceedings on payment of. 485, 6.
scire facias in debt on bond for payment of. 1000. 1012, 13.
INSTANTER, meaning of. 508 (;,/).
INSURANCE. See tit. Policy of Insurance.
INTEREST,
payment of, in debt on bond. 19, Sec.
recoverible on bond, though not expressly reserved. 484, 5.
when allowed beyond the penalty of a judgment. 942, 3.
bail in error for. 1085 (,§•).
allowance of, in error. 1 132, Sec.
INTERLOCUTORY JUDGMENT. See Wi. Judgments.
INTERROGATORIES; See tit. Witnesses.
on attachment. 59. 209.
under lords' act. 968, 9.
costs on. 741.
JOINDER,
of action; 10.
upon contract. Id.
for wrongs. Id. 11.
JOINDER,
i
INDEX.
JOINDER,
in action, of different persons. 11, 12, 13.
in demurrer, must have a Serjeant's hand, in C. P. 650 (i).
error. 1116, 17. 1121.
JOINT-TENANTS. 2. 580.
JOURNIES-ACCOUNTS. 26, 7.
IRELAND, affidavits made in. 156. 161.
arrest in. on judgments. 187.
proceedings in, on stat. 43 Geo. III. c. 46. § 2. 200,
privilege of peers of, from arrest. 170.
plaintiff residing in, must give security for costs. 478.
error from: 1063, 4.
alleging diminution in. 1 104 (d).
IRREGULARITY,
in general, what. 434.
when and how taken advantage of 90, 1. 434, 5.
waived. 91. 165,435. 190. 403.
in process. 90, 1. 147.
proceedings on bail-bond. 248.
against the sheriff. 263.
setting aside judgments for. 440. 507, 8.
new trials for. 816.
difference between irregularity, and complete defect in
proceedings. 435.
ISSUABLE TERMS. 99.
Plea, what: 428.
judgment signed for want of. 429, 30. 477.
ISSUE-MONEY, what. 678, 9.
payment of abolished. 679.
ISSUE-ROLL; 681.
from whom obtained. Id.
contents of. Id.
numbering. Id.
docketing and filing. Id.
entry of proceedings on, to judgment. 843, 4, 5.
ISSUES,
upon a distringas., &c. 107, 8. 112. 136. 261. 438.
pleadings, what. 665.
in law. Id.
fact: Id.
triable by the record. Id.
country: Id.
feigned. Id,
several in one cause. Id.
Vol. II. 4 A ISSUES,
INDEX.
iSSUES,
upon pleadings;
by whom and how made up. 666.
contents of. 667.
form of, by bill; Id,
title. Id.
memorandum. Id. 668.
entry of imparlance. Id.
pleadings: 669.
after judgment of res/2owrff as ozw^fr.
Id.
by original; 672.
title. Id.
declaration and pleadings. Id.
how concluded;
on an issue in fact, triable by the coun-
try. 669, 70, &c
award of iienire facias:
by bill. 669, 70.
original. 672, 3.
on several issues in fact. 670.
against several defendants, who plead
separately. Id.
where some of them plead, and
others let judgment go by de-
fault. Id. 802, 3.
on several issues, in fact and in law.
671
where the sheriff is interested. 672
in a county -palatine. Id. 673.
Wales. 674.
Berivick upon Tweed, Sec. Id.
where an impartial trial cannot be
had. 673.
entry of suggestions. Id. 674,, 5.
on an issue in fact, triable by the re-
cord. 675.
law. Id.
general; 666. 676.
delivery of : 676.
against several defendants. Id.
after striking out special pleadings. 67S
special; 666.
paper-book: Id.
by whom and when made up. Id. 667,
delivery of. 676.
rule (o return. Id.
ISSUES,.
INDEX.
ISSUES,
upon pleadings;
special ;
paper-book :
time for returning. 676, 7.
returning, and paying for the entries. 678, 9.
striking out special pleadings, and giving general
issue. 678
similiter, and demuiring. Id.
proceedings thereon. Id.
consequence of accepting, or returning. 679.
entering: 679, 80.
rule for, when and how given. 680.
when and how done. 680, &;c. 714,
by defendant. 682, 3.
when formerly ti'ied. 704 (e).
immaterial, what. 829.
not cured by verdict. Id.
informal, what. Id.
aided by 32 Hen. VIII. c 30. Id.
misjoining, aided by the above statute. 835,
in scire facias. See tit. Scire facias.
error. See tit. Error.
JUDGES. 29.
JUDGES-ORDER,
for particulars, how far a stay of proceedings. 534, 5.
motion to set aside. 442,
make it a rule of court. Id.
when final. 464.
how appealed from. Id.
enforced. Id.
report. See tit. Aew Trials.
JUDGMENT-ROLL. 843, Sec.
JUDGMENTS,
what. 841.
arrest of. See tit. Arrest ofJudgmetit.
when and how signed. 512, 13. 813(d). 841. 843.
entering, in what cases necessary. 843.
in what manner, and by whom done. Id. 844, 5.
after the death of parlies;
at common law: 846. 857.
nunc pro tunc. 438. 473, 4. 846, 7. 858.
by statute:
where either party dies, between verdict and
judgment. 847, 8. 1024, 5.
JUDG.
INDEX.
JUDGMENTS,
entering, in what cases necessary ;
by statute:
where either party dies, after interlocutory and be-
fore final judgment. 848. 1026, 7.
after death of on^^ of several parties. 849.
plaintiff's bankruptcy. Id.
insolvency. Id.
relation and effect of, at common law. 849, &c.
upon the statute of frauds. 856.
as to freehold lands. 850.
leasehold property. Id.
against defendant and his heirs, &c. 850. 853, &c.
in case of bankruptcy. 852, 3.
against an heir, on the obligation of his ancestor. 8 5 3, Sec >
restrained, as against purchasers. 856. 862.
mortgagees. 862.
docketing what, and by whom, when, and how done. 257,
8, 8cc.
want of, when relieved against in equity. 860, 1.
bringing in rolls of: 845.
consequence of neglect. 861, 2.
registering. 862,
amendment of Id. 863.
in abatement,
for plaintiff ;
on issue in fact. 588.
law. Id. 589.
defendant; 589.
of cassetur billa, vel breve. 633.
in bar,
for plaintiff;
form of :
in assznnfisit, &c. 842;
covenant. Id.
debt. Id.
annuity. Id.
detinue. 843.
replevin. 842.
trespass. Id.
by confession. See tit. Cognovit Actionem.
default, what: 505.
nil dicit;
for want of plea to declaration. 421, 2.
432.505, 6. 590.
to new-assignment. 506.
in scire facias. 1040.
JUDG-
INDEX.
JUDGMENTS,
in bur, for plaintiff ;
by 7iil (licit:
for want of plea adapted to nature of action. 506.
in abatement, in due tinit. 419.
586. 588.
affidavit of truth of plea in abatement.
507. 588.
issuable plea, after judge's order. 507.
paying money into court, on plea of
tender. Id.
right delivery of plea. Id.
giving oyer. 531.
rejoinder. 506. 646.
joinder in demurrer. 506. 778, 9.
returning paper-book. 506. 676, 7.
how signed, between essoign and first day in full
term. 215, 16.
waiving. 507.
setting aside,
for irregularity;
motion for, when and how made. 440. 507.
upon affidavit of merits. 507, 8.
by non sum informatus. 505. 841.
interlocutory;
where the action founds in damages: 508.
on demurrer. Id.
nul tiel record. Id,
in debt. Id.
on 8 & 9 IV. III. c. 11. § 8. Id. 509.
intent and construction of that act. 510, 11.
to what cases it does not extend. 511.
proceedings thereon. 5 12. •
how signed. Id.
Q. If scire facias necessary thereon, after a year
and a day. 1003.
final; 508.
when and how signed. 513. 813 (d). 841. 843.
no rule for judgment necessary. Id.
admission of cause of action. 523.
within the statutes of jeofails. 838, 9.
on warrunt of attorney; 438. 500.
how .signed. 500. JUDG-
INDEX..
JUDGMENTS,
in bar, for plaintiff;
after award in plaintiff's favour. 761, 2.
non obstante veredicto; 617. 814.
in what cases given. 828.
motion for, when made. 840.
how it differs from a repleader. 830, 1.
against bankrupts. 1014, 15.
insolvent-debtors. 1016, 17.
for defendant;
form of, in replevin. 843.
other actions. Id.
of non-firos. See tit. A'on-Pros.
discontinuance. 841.
7ioUe firosecjui . 629, 8cc. 841.
cassetur di/la^ vel breve. 841 .
retraxit. Id.
nonsuit, motion to set aside. 439.
as in case of nonsuit: 841.
origin and foundation of. 702, 5.
in what cases given, and in what not. 703, 4. t
after bringing money into court. 567 (?f). ;
record entered for trial, and withdrawn. 705.
at what time it may be moved for;
in a town-cause. 704, 5.
country-cause. 705.
the same term issue is entered. 704 {g).
motion for, affidavit and notice. 441, 2, 449 (j/).
706.
snaking absolute, or discharging. 706, 7.
proceedings thereon. Id.
causes against: Id. 740.
• absence of material witness, &c. 706.
insolvency: Id.
cesset processus. Id. 707.
peremptory undertaking: Id.
proceedings thereon. 707, 8.
costs on. See tit. Costs.
9:1. demurrer; 438. 442.
in abatement. 687.
bar: Id.
interlocutory. 508. 687.
final. 687.
to, or counterplea of, oyer. 550.
to evidence. 794. JUDG-
INDEX.
JUDGMENTS,
on nul tiel record;
quod p erf tcit recordum. 690.
defecit de recordo. Id.
in abatement. 692.
interlocutory or final. Id.
on special verdict, motion for. 438. 442.
bill of exceptions. 791.
of repleader. 829.
in ejectment, motion for, against casual ejector. 442.
in actions against executors and administrators. See tit.
Executors and Administrator.^,
bankrupts. 1014, 15.
insolvent-debtors and fugitives. 633. 1016, 17.
heirs and devisees. See tit. Heir^ and Devinee.
in scire facias. See tit. Scire Facias.
error. See tit. Error.
outstanding, replication to plea of. 637 (?).
actions on, for less than 5/. 874.
costs in. See tit. Costs.
setting off costs on. 906, 7.
may be set off, though error be pending thereon. 604.
erroneous and irregular, in what cases a justification. 936.
I'eversed as to costs, 8cc. 1 129.
JURAT, of Affidavits. 155. 417.
JURATA. 712. 824.
JURISDICTION,
of K. B. in personal actions. 28, 9.
in trespass. Id.
by original writ. Id.
attachment of privilege. Id.
bill. Id.
pleas to. See tit. Picas and Pleading.
different kinds of, and when claimed or pleaded. 5 74, ;.
of court of requests for London.^ &c. 872.
•FURY, Trials by. See tit. Trials.
(|Uulifications of ; 715.784.
in London and Middlesex. 715 (?«'.
process;
■venire facias., what. 714, 15.
history of clause of nisi firius. 715, 16.
when issued. 717.
after distringas. 718, 19.
distringas, what. 717.
alias and plurics. 718.
when necessary to be resealed. 722.
.TURY:
INDEX.
JURY,
process;
to whom directed:
sheriff. 672. 720.
coroner. Id.
elisors. Id.
where an impartial trial cannot be had. 673.
in JVales. 674.
Berwick upon Tweed. Id.
county -palatine. 672,3.720, 1.
mittimus. 673. 720, 1.
form of : 721.
tarn ad trianduin, quam ad inqvirendum. Id. 802j 3.
hy fir oviso. 721.
teste and return. 721, 2.
suing out and sealing. 722,
for special jury. 729.
on trial at bar. 771.
new trial. 824.
in what cases aided, by statute of jeofails. 836, &c.
common; 722.
how nominated, summoned, and returned. Id. &c.
good jury. 439. 519. 725.
special; 722.
what, and how nominated. 725.
origin and history of ;
on trials at bar. Id. 726. 771.
in other cases. 726, 7.
statutes respecting. 727, 8.
costs of. Id.
motion and rule for: 439. 442. 729.
in term-time. 703
nominating and reducing. 729.
summoning, in London. Id.
notice to, on trials at bar. 771.
once appointed, cannot be changed. 7 IS.
views by;
in what cases allowed. 730.
statutes respecting: Id. 731.
construction of. 731, 2.
motion for, and when of course or not. 439, 442. 733,
rule for, and proceedings thereon. 733, 4.
challenges of; 779.
to the array. Id.
polls. Id. .TURY,
INDEX.
JURY,
challenges of ;
to the polls:
firofiter honoris resfiectum. 780.
defectum. Id.
affectum. Id.
principal. Id.
to favour: /</.
triers. Id. 781.
delictum. 781.
voire-dire. Id.
swearing; 782.
after view. 783.
talesman; Id.
at common law. Id.
by statute. Id. 784.
withdrawing juror; 785.
costs on. 570. 785.
withdrawing from the bar; 795.
what they may take with them. 791, 2. 795.
misbehaviour of, ground for new trial. 817. 838 (a).
objections to, or mode of returning them. 524.
JUSTICES,
of assize. 766.
in eyre. Id.
Qi the peace,
actions against; 72, 3, &c.
limitation of. 22.
notices of. 72, 3.
venue in. 374.
may plead the general issue. 597.
bring money into court. 564.
costs in actions against. See tit. Costa.
JUSTICES. 50.
JUSTIFICATION,
matter of, must be pleaded in trespass. 597.
K.
KING,
and his family, privileged from arrest. 167.
may protect his debtor, &c. 189.
is not bound by the statute 4 jinn. c. 16» 610.
has a right to demand trial at bar; 767.
though out of the common course. 770.
Vol.. II 4 B KING,
INDEX.
KING,
execution for debt of; See tit. Extent.
priority of. 916. 944, &c.
may be sued out without a scire facias . 1004=
KING'S-BENCH,
jurisdiction of, in personal actions. 28, 9.
error in, on a judgment of the same court. 1057.
to, from other courts. 1058, 9.
from, to the Exchequer-chamber. 1059, &c.
House of Lords. Id.
LACERAVIT. 883.
LANCASTER. See tit. County-Palathie.
LANDLORD,
his claim for rent, under an execution: 925, &;c.
how enforced. 927.
remedy by distress, in case of bankruptcy. Jcl.
LATITAT; See tit. Process.
what. 77.
may be issued in the first instance. Id.
lies not against peers, 8cc. Id. 77.
how far considered as a commencement of suit. 24. 292,
3,4,
may be served in Middlesex. 148, 9.
LEASES,
in what cases seizable under an execution. 917.
how assigned by the sheriff. 918.
of expelling the lessee. Id.
LEVARI FACIAS. 136, 7.
LIBELS,
changing venue in actions for. 547, 8.
LIBERATE,
writ of ;
what. 949, 50.
proceedings on. 950.
on a re-extent. 952.
poundage on. 980.
LIBERUM-TENEMENTUM,
may be given in evidence on the general-issue. 597
pleaded with not guilty. 610, 11.
plea of; 641, 2.
need not be signed or filed. 622.
issue on, by whom naade up. 666.
LICENCE,
must be pleaded in trespass. 597.
costs on plea of. 884. LIEN,
INDEX.
LIEN,
for balance of attorney's bill. 57, 8. 287, 8cc.
LIFE-GUARDSMAN, place of, saleable under the lords' act.
968
LIMITATION of Actions,
penal. 13.
in general. 15.
on the lords' act. 17, 18.
in debt on bond. 19, ficc.
actions for wrongs. 22.
quo warranto. 611.
after reversal of judgment by error. 15, 16.
outlawry. 16.
arrest of judgment. 15, 16.
exceptions in favour of infants, &c. 16.
persons beyond sea. Id. 17, IS.
actions and cases not within the statute. 16, 8tc.
statute of;
when pleaded, or given in evidence. 593, 4. 598.
how pleaded. 19.
cannot be pleaded after a regular judgment. 508.
what will take a case out of it. 23, See. 1 143.
debt barred by, cannot be set off. 604.
in error: 1064. 5.
plea of 1120.
LONDON,
customs and bye-laws in, when and how tried. 347, 8.
trial at bar in, 769.
courtof requests for. 871, &c.
error fi-om courts of. 1058.
LORDS. See tit. House oi Lords, and Peers.
LORDS'-ACT; 200. 962.
construction of 963, 4.
proceedings under. 964, 8cc.
note for allowance on; 970, 1.
by several plaintiffs. /(/.
judges order under, final. 464. 971.
compulsive clauses in. 972, &c. and see tit. Prisoners
LOTTERY-ACT,
process on. 84.
affidavit to hold bail on. 160, 1.
actions, &c. for penalties on, by whom brought. 468, 9.
LUNACY. See tit. Insanity.
LUNATICS,
appearance of. 63 (<"}.
MAT,.
INDEX.
M.
MAL-FEAZANCE. 5. 392, 3.
MANDAMUS; 703. 838, 9.
to inspect books, &c 542 (e).
examine witnesses in India. 741, 2.
enforce award of commissioners, under an inclosure-act.
763.
MANDATE, to the sheriff. 19 J.
by the sheriff. 192. 256. 929.
MANDAVI BALLIVO. 256. 929.
MARINES, arrest of. 176.
MARKET-OVERT. 600. 1.
MARRIAGE; See tit. Baron and Feme.
when a revocation of warrant of attorney. 496, 7.
MARSHAL'S Acknowledgment. 320.
Book. 242. 307. 320.
MASTER'S Report, motion for. 442. 452. 560.
Rules. See tit. Rules.
MAYHEM, damages for. 806.
MELIUS INQUIRENDUM. 136.
MEMBERS of CONVOCATION,
privilege of, from arrest. 171.
MEMBERS of the HOUSE of COMMONS,
how sued; 25.28. 61. 62 (a). 77. 93. 96. 110, 11.
jointly with others. 11 1, 12.
process against, by original: 112.
how it differs from process against other persons. 1 1 1 {g).
bill against: 113, 14.
its commencement. 376.
conclusion. 114.401,
how filed. 114.
process thereon: Id. 115.
form of. 114.
teste and return. 115.
appear.ince. 114.
decliLration. 115.
cannot cast an essoin. 105.
be arrested. 170, 1.
attached for nonpayment of money. 171.
nonperformance of award. 757.
taken in execution. 115. 954..
bail of, discharged. 243. 1044.
MEMORANDUM, what. 667.
reason for, and different kinds of. Id. 668.
MEMO-
INDEX.
MEMORANDUM,
general, to what time it relates. 294.
how controlled or rectified. Id. 295.
special, against prisoners. 307, 8.
attornies. 274. 295.
not used in actions by original. 672.
MEMORIAL of Annuity,
pleadings respecting. 638, 9.
MESNE-PROCESS, execution of. 144, &c. 191, &c.
Profits, costs in action for. 882.
MIL ITIA, Attornies how far exempted from serving in. 265,6,
MILLS, demolishing. 1 17.
MISBLHAVIOUR,
of partv or jury, ground for new trial. 817.
MISCONTINUANCE, 514.
aided by statute of jeofails. 835.
MISCONVEYING of Process,
aided by statute of jeofails. 835.
MISDIRECTION. See tit. M-w Trials.
MISERICORDIA,
want or wrong addition of, aided. 863.
MISFEAZANCE,
what. 5. 393.
action for; 10.
declaration in. 399.
MISJOINDER. 630.
MISNOMER,
consequences of;
on bailable process. 249. 582 (i).
process not bailable: 402, 3.
distringas. 108.
jury-process. 837 (2).
pleas in abatement of: 582.
mode of beginning and concluding. 584, 5.
how cured;
by amending the writ. 402.
declaration, 652.
declaring in right name. 402, 3.
not material after judgment. 403. 954.
MISPLEADING,
aided by statute of jeofails. 834, 5.
MITTIMUS; See tit. Certiorari and Mittimus.
to a county-palatine. 551. 672, 3, 720, L
MONEY,
INDEX.
MONEY,
bringing into court ;
origin of. 561.
in what cases allowed;
in assumfisit. 562, &c.
covenant. 562. 555.
debt for rent. 562, 3.
on bond. 484.
on policy of assurance. 563.
in actions by executors or administrators. 564.
against justices of the peace. Id.
officers of the excise or customs. Id.
in what cases not allowed;
in actions for general damages. 563.
upon several counts or breaches: 564, 5.
costs on taking it Out. 565.
under the stat. 43 Geo. III. c. 46. § 2. 200.
proceedings thereon. Id. 200.
motion for, when and how made. 441. 565.
paying it in; 566.
on a side-bar rule in C. P. 565 (yj.
plea of tender. Id.
rule for, when and how drawn up. Id.
on payment of costs. Id. 567.
service of copy of 567.
how far an acknowledgment of the right of action. 567, 8.
an admission of a legal demand only. 568.
generally, an admission of the contract. Id.
taking it out of court;
a waiver of irregularity in bringing it in. 563.
with costs, in discharge of the action: 568, 9.
proceedings thereon. 569.
Q. if a bar to a new action, after nonsuit. 570 {/).
proceeding in the action, for a greater sum; 569, 70.
consequences of Id.
costs. 570.
Q. Whether the plaintiff can be nonsuited after. 567 (u).
foreign, value of, how ascertained. 515, 16.
depositing in sheriff's hands. See tit. Deposit.
in sheriff's hands, may be taken in execution. 917.
MORT-D'ANCESTOR, assize of, damages in. 799.
MORTGAGEE,
of estate in Ireland., allowed to be bail. 230.
ejectment by, staying proceedings in. 487, 8.
how far affected by judgments. 851. 857, 8. 860.
MOTIONS,
INDEX.
MOTIONS,
what. 436.
on the crown-side : 437.
for an attachment. Id. 438.
on the civil side: 438.
where an action is depending;
on behalf of the plaintiff. 200. 438, &c.
defendant. 200. 440, &?.
in ejectment. 442, &c.
where no action is depending;
to set aside an annuity. 445, &c.
notice of. 449, 50. 706.
affidavit in support of. 450, &c. and see tit. jiffidavits.
attendance of attornies on. 57.
what may or may not be made on the last day of term.
452,3.742.765.
for rules : See tit. Rules.
course observed in hearing. 461, 2.
what counsel are heard on. 462.
for a concilium; 438. 442.
argument of causes on: 459.
when and how brought on. Id. 1125, 6.
what counsel are heard on. 462.
moving for. Id. 463.
when appointed for particular days. 459.
to come on peremptorily. 59, 60. 460.
costs on. See tit. Costs.
MUTINY-ACTS. 177.
MUTUAL-Accounts;
will take a case out of the statute of limitations. 24.
Debts; See tit. Set-off.
arrest for balance of. 154,
Promises; 3, 4. 384.
actions on. 3, 4.
N.
NEGLIGENCE,
actions for. 6. 393.
NE-RECIPIATUR. 698. 772.
NEW-ASSIGNMENT; See tit. Pleas and Pleading.
plea of not guilty to, need not be signed or filed: 622.
issue on, bv whom made up. 666.
NEW.
INDEX.
NEW-ASSIGNMENT;
costs on plea of not guilty to. 885.
judgment by default on. 889.
NEW-TRIALS,
origin and necessity of. 814, 15.
in what cases granted; 816.
in ejectment. Id.
after trial at bar. 771. 816,
nonsuit: 816.
for defect in bill of particulars. 537 (c).
concurring verdicts. Id,
contrary verdicts. Id.
in inferior court. Id.
after special case, defectively stated. 810.
grounds of moving for;
want of due notice. 816, 17.
proper jury 817. 838 (a),
misbehaviour of prevailing party. 817,
jury. Id.
absence of parties or witnesses. Id.
discovery of material evidence after trial. Id. 818 (e)-
misdirection of judge. 818.
rejecting witnesses. Id. 60.
error or mistake of jury. 818.
in a penal, hard, or trifling action. Id. 819.
after a point reserved. 818.
■where the defence is unconscionable. Id.
for excessive damages. 819.
smallness of damages. Id.
cannot be had for one of several defendants. Id.
part of cause of action. 819, 20.
in criminal cases. 820,
motion for, when and how made. Id.
not allowed, after moving in arrest of judgment-
821.
affidavit in support of. Id.
judge's report on. Id. 822.
rule for, and proceedings thereon to new trial. 824,
costs on. See tit. Costn.
NIENT DEDIRE. 549. 673, 4, 5.
NIL DEBET, 591.
a nullity in assiimjiait. 506.
what may be given in evidence on. 593, 4.
NIL DIGIT, judgment by. See tit. Judgtnerils.
NIL H ABUIT in Tenementis, plea of, 594.
NISI-
JNDEX.
NISI-PRTUS,
clause of, in jurj' -process. See tit. Jury-fitoceit.
order of. See tit. Arbitration.
record or roll of, what. 711.
contents of; 669. 711.
Placita.7\\.
Jurat a. /rf. 712.
Sciendum. Id.
by whom and how made up. 713.
sealinpf and passing. 682. 713.
in London and Middlesex. 713.
at the assizes. Id.
resealing. 713, 14.
must be passed again, but need not in general be
re-ingrossed, for new trial. 824.
amendment of. 66 1 .
in error. 11 22.
trials at. See tit. Trials.
NOLLE-PROSEQUI, 626.
what. 629, 30.
on plea of coverture, &c. 630.
of the whole, or part of cause of action. Id.
where there is a demurrer to part, and an issue to other
part. 631,2.
in actions against several defendants. 630, &c. 805.
costs on. See tit. Coats.
NON ASSUMPSIT, 591.
with what pleas it cannot be pleaded. 609 (J).
what mav be given in evidence on. 591, 2.
NON COMPOS MENTIS. See tit. Insanity.
NON DAMNII ICATUS, plea of. 596.
NON DEMISIT, plea of. 595.
NON DETINET; 591.
what may l)e given in evidence on. 593. 596, 7.
NON EST FACTUM; 591.
suggestion of breaches after. 511.
what may be given in evidence on;
in covenant. 593.
debt on bond, or other specialty. 595, 6.
special, may be delivered. 621, 2.
need not be signed. Id.
issue on, by whom made up. 666.
NON-FEAZANCE,
what. 5. 393.
Vol. II. 4 C NON-
INDEX.
NON-FEAZANCE,
action for; 10.
declaration in. 398, 9.
not within the stat. 7 Jac. I. c. 5.903 {y).
NON INFREGIT CONVENTIONEM,
when a bad plea. 593.
NON OBSTANTE VEREDICTO. See tit. Judgments.
NON OMITTAS. See tit. Ca. Sa. Fieri Facias, and Process.
NON-PROS,
judgment of;
for not adjourning essoin. 105. 415, 16.
on removal by certiorari or habeas corfms. 351.
recordari facias loquelam. 359.
for not declaring; 412, &c.
by original. 363.
bill. 412, 13.
in a joint action. 414.
regular or irregular. 415.
replying, &c. 646.
entering issue. 680. 701.
certifying the record. 1093.
alleging diminution. 1105.
assigning errors. 1 107.
proceeding after original sued out. 1114.
form of. 843.
costs on. See tit. Costs.
motion to set aside. 439.
arrest after. 185.
NONSUIT,
origin and history of. 796.
for what causes. Jd.
defect of evidence, in a particular county. Id. 797.
after bringing money into court. 567 (u).
Q. if a bar to a new action. 570 (/).
advantage of. 797.
can only be at the instance of defendant. Id.
in an action against several defendants. Id. 798.
damages on, in replevin. 798.
iiile for judgment, not necessary on. 813, 14.
new trial after. 816.
judgment on ; See tit. Judgments.
as in case of. See same title,
staying proceedings on judgment, pending error. 471, 2.
NON SUM INFORMATUS,
judgment by. See tit. Judgmeiits.
NON-TENURE, plea of. 1043, 4.
NOT-
INDEX.
NOT-GUILTY,
a good plea in debt on statute. 506.
in as.<iumpsit. Id. (n).
plea of, in trespass or case. 591.
what may be given in evidence on. 597, 8, 9-
NOTICE,
of action ; 72.
must state process intended to be sued out. 73.
to agents, when given. 55.
on process to appear ; (
when necessary. 146,7.
its direction. 147.
form. Id.
irregularity in. Id.
of declaration. 407, 8.
not necessary in bailable actions, in C. P. 407 {d).
to plead ; Id.
after four terms. 425, 6.
of set-off. See tit. Set-off.
trial; See tit. Trials.
want of, ground for new trial. 816.
of inquiry. See tit. Inquiry.
of striking out rejoinder, &;c. 678 (c).
render. 240, 41.
need not be given of executing elegit. 940.
to produce deeds or writings, S:c. 736.
how it differs from a subpoena with a duces tecum.
736 (o).
of motion. 449, 50. 706. 708.
of judgments, what and when material. 851. 860, 1.
by attorney, not to pay money to his client. 287, 8.
of petitioning, Sec. on the lords' act. 965. 972. 974 (/),
of the allowance of writ of error. 1071 (b).
how served. 47, 8.
when necessary to be shewn in pleading. 388, 9.
NOVEL DISSEISIN, assize of, damages in. 799.
NULLA BONA, return of; 928.
proceedings thereon. 929, 30.
NUL-TIEL-RECORD,
plea of; 529. 591. 1008. 1044. 1046.
how concluded. See tit. Pleas and Pleadiiig.
what may be given in evidence on. 596.
must be delivered. 621, 2.
need not be signed. Id.
amendments allowed after plea of. 652.
NUL-
INDEX;
NUL-TIEL-RECORD,
replication of, to a plea of privilege. 46, 7. 172 (A),
judgmentorrecognisance. 637 (z),
must have a Serjeant's hand, in C. P,
645 (r).
issue of; 665.
by whom made up. 666.
how triable. 689, 90.
proceedings on ;
where the record is of the same court: 689.
notice or rule to produce record. 690.
continuance of. Id.
where the record is of a different court. 691, 2.
certiorari and mittimus. Id.
judgment on: See tit. Judgments.
not within the statute 6 h 9 JV. III. c. 1 1. § 8. 513.
difference on, between a discontinuance and reversal of
judgment. 690, 1,
NUNC PRO TUNC. See tit. Judgments.
NUSANCE, action for; 7.
declaration in. 396.
O.
OATHS, of Attornies. 45.
OFFICERS of the Court:
judges. 29.
on the crown-side;
clerk of the crown, or coroner. 30,
secondary and clerk in court. Id.
clerk of the rules. Id.
examiner. Id.
calendar-keeper. Id.
clerk of the grand juries. Id.
on the plea-side ;
prothonotary, or chief-clerk. Id.
master or secondary, and assistant. Id.
clerk of the rules. Id.
papers. Id.
declarations. Id.
common-bails, /losteas and estreats. Id.
judgments. Id.
dockets, commitments, and satisfactions. Id.
signerof the writs. Id.
OFFICERS
INDEX.
OFFICERS of the Court;
on ihe plea-side:
sealer of the writs; 32, S.
duty of. 33 (t).
custos brevium. 31.
filacers; Id.
duty of, in signing writs. Id. (k).
exigenter. Id.
clerk of the outlawries. Id.
inner and upper treasury. Id.
outer treasury. Id.
errors. Id.
bag-bearer. Id.
clerks of nisi firius. Id.
chief-usher and crier. 32, 3.
deputy-ushers and criers. 33.
judges'-clerks. 31.
of the King's-Bench prison;
marshal. 32.
deputy-marshal. Id.
chaplain. Id.
clerk of the papers. Id.
day -rules. Id.
turnkeys. Id.
tipstaffs. Id.
sheriffs. 33.
at nisi firius ;
clerk of nisi /irius. 34.
associate and marshal. Id.
crier and train-bearer. Id.
of the circuits;
clerk of assize. Id,
associate. Id.
clerk of arraigns. Id.
indictments. Id.
judge's marshal. Id.
crier, clerk, steward, and tipstaff. Id.
lien of, for their costs. 287 (m).
of the army, half-pay of, not assignable. 968.
OFFICERS, attornies exempt from. 265.
disturbance of. 396 {g).
when saleable under the lords' act. 968.
ORDER of A7«z Prius; See tit. Arbitration.
motion to make it a rule of court. 442.
ORI-
INDEX.
ORIGINAL- WRIT, 25. 61.
jurisdiction of court by. 28.
what; 93.
special. 61 (a),
common. Id.
when it lies. 93.
in what cases necessary. Id. 9i. 97. 126, 7.
benefit of proceeding by. 94. 1062.
for commencing or removing actions. 95.
de cursu or magistralia. Id.
fircecipe,, or •«" tefecerit securum. Id. 9S.
by whom issued. 96.
when and how sued out. Id. 97.
form of. 96.
direction. 97.
teste and return. Id. 101, 2.
amendment of. 104. 661.
declaration by; see tit. Declaration.
venue in. 375.
need not repeat the original. 377.
oyer of, cannot be demanded. Id. (ft). 529, 30.
issues by: See tit. Issues.
award of venire /ados. 672.
want of, aided by verdict. 102. 832. 1 1 13.
error, after judgment by default, &c. 102. 1108.
1113.
how assigned. 1108.
confession of. 1118, 19.
suing out, after error brought. 1113, 14.
certiorari for: 1 109, 8cc. 1 1 14, 15.
proceedings thereon. 1111, 12. 1119,20.
OVERSEERS,
attornies not liable to be chosen. 265.
inquiry of damages in actions against. 518.
OUTLAWRY, in civil actions, what; 125, 6.
in a separate or joint action. 125. 326, 7. 362.
forfeiture upon. 125, 6.
women waived. 126.
upon mesne-process. Id.
final-process. Id. 127.
\\v\\. of exigi facias. 127, 8.
«//occmr exigent. 128.
proclamation: Id. 129.
teste and return of. 1 29 .
sheriff's return to. 130.
foreign proclamation. 129, 30.
OUT-
INDEX.
OUTLAWRY,
proceedings on the exigent : 130,
arrest. Jd.
voluntary appearance. Id.
bail. Id. 131.
judgment of outlawry, or waiver. 131.
charging defendant in execution on. 322.
cafiias utlagatum., general or special ; 1 3 1 .
form of the general writ: Id. 132,
proceedings thereon. 132j
bail. Id. 133.
bail-bond. 134.
form of the special writ: 135.
. proceedings thereon. Id.
inquisition. 136.
retuiTi. Id.
transcript into the Exchequer. Id.
venditioni exponas. Id.
scire facias. Id.
levari facias. Id. 137.
bill of discoveiy, &c. 137.
how to obtain satisfaction from the outlaw's property. 1 37,8,
of reversing it, by writ of error or motion. 139. 440.
appearance. 139, 40.
bail. 140, &c.
costs. See tit. Costs.
restitution. 143.
limitation of actions after reversal. 16.
declaration after. 140(A).
pleaof; 579. 589.
after the last continuance. 775. 777.
after judgment. 957.
in a civil suit, considered as an exe ution within the 8 jinn.
c. 14. 927.
landlord's remedy, after a distress made and outlawry re-
versed. Id.
OYER,
of deeds, Sec. in what cases demandable;
by defendant. 526, 7.
plaintiff. Id.
by and of whom demanded. 527.
cannot be dispensed with by the court. Id.
when necessary to bu demanded during the same
term. 523.
what must be delivered under it. 527.
OYER,
INDEX.
OYER,
of records. 688, 9.
original writs. 529, 30. 377 (^).
mesne-process. 124.
demand of, at what time to be made. 418. 530,
insistintj upon. 530,
contesting. Id.
no settled time for plaintiff to give it. Id.
party of whom demanded must carry deed, &c. to his ad-
versary. 527.
in what time it must be given by defendant. 531.
judgment for not giving it. Id.
setting forth the whole deed, &c. 506.
what use may be made of it in pleading. 531.
time to plead or reply after. 426. 530, 1.
P.
PAPER-Days; 459.
argument of causes on. Id. .
PAPER-Book; See tit. Issues.
when delivered to the judges. 460. 686, 7.
in error. 1 122, 3.
PARISH-BOOKS, inspecting. 539, 40.
officers, costs in actions against. See tit. Costs.
PARLIAMENT,
abatement of writ of error in, by prorogation or dissolu-
tion of. 1098.
PAROL-DEMURRER. 579,80, 1033. 1121. ,
PARTICULARS,
ofplaintiff's demand; 534.
in what cases demandabler Id.
in assum/is?r, or debt for goods sold, 8cc. Id.
of objections to abstract. 535.
debt on bond, for performance of covenants, &c.
535
where there is a general form of declanng. Id.
in ejectment. Id.
in what cases not demandable:
in special assuj7i/isits,Sx.c. Id, 536.
actions for wrongs. Id.
summons for; 534.
when taken out. Id.
order on: Id.
how far a stay of proceedings. 535.
how given, 536, 7
PARTI-
INDEX.
PARTICULARS,
of defendant's set-Off; 536.
summons and order for. Id.
consequence of not delivering. Id.
summons and order for further particulars. Id.
to amend particulars. Id. 537,
effect of, at the trial. 537, 8.
Q. if a ground for striking out inapplicable counts. 559.
PARTNERS,
affidavit of debt by. 1 64.
distraining effects of. 108.
actions by or against; 8, 9.
pleas in. 580, 1.
set-off in, when allowed. 604, 5.
executions against. 921.
signing note on lords* act. 970.
PATENT,
venue in action for infringing. 548.
scire facias for repealing; 982.
costs in. 1049.
PAUPERS,
what. 67.
when and how admitted to sue in forma, fiaufieris. Id. 68.
effect of such admission. 68.
not liable to costs. Id. 69.
may receive them. 69.
how answerable for delay. Id.
not allowed to defend in forma fiaufieris. 67.
entitled to issue-money. 678.
may have trials at bar. 768, 9.
PAYMENT,
when presumed in debt on lx)nd. 20, 1.
to the attorney or agent, when payment to the principal. 55.
of money into court. See tit. Money.
when pleaded or given in evidence. 592. 596. 1044. 1046.
without acquittance, how pleaded at common law. 828.
PEERS,
how proceeded against; 25. 61. 62 (a). 77. 93,4. 96. 1 10,
&c.
jointly with others. 111,12,
process against, by original: 1 12.
how it differs from process against other persons. 1 1 1 (§■).
cannot cast an essoin. 105.
privileged from arrest. 169, 70.
Scotch and Irish peers. Id.
PEERS,
Vol. II. 4 D
INDEX-
PEERS,
cannot be attached for non-payment of money'. 170.
non-perfovmance of award. 757.
taken in execution. 115. 954.
liable to attachment, for contempt of process. 170. 738.
bail of, discharged. 243. 1044.
PENAL-ACTIONS,
limitation of 13, &c.
where laid. 374.
arrest in. 152.
may be commenced by latitat. 293.
compounding. See tit. Comfioiuiding Penal Actions.
staying proceedings in, on payment of the penalty. 48 1 .
on the Stat. 2 1 Jac. I. c. 4. 466, 7.
other statutes. 466, See.
till security be given for costs. 477
double pleas not allowed in. 610.
amendments in, at common law: 659, 60, 1.
by adding continuances. 628.
not within the statutes of amendments. 661.
16 & 17 Car. II. c. 8. 1082.
lords' act. 964.
issue-money in. 678, 9.
judgment in: 863.
as in case of a nonsuit. 703. 706, 7.
trial of, when it cannot be put off. 710.
notice to produce deeds, Sec. on vvbom served. 736.
damages in, not recoverable by common informer. 40 1 . 798.
judgment reversed for. 1129.
costs in. See tit. Coats.
within the 32 Hen. VIII. c. 30, 839.
Q, if error lies in the Exchequer-chamber, in a penal action.
1062, 3,
PENALTY,
arrest not allowed for. 153. 159.
•when considered as the debt at law . 486.
staying proceedings on payment of. 482, 3.
pleas in debt for. 594.
cannot be set off. 604.
PEREMPTORY-Days. 460.
Paper. 461.
Undertaking. See tit. Judgments as in case of a MjusuU .
PERFORMANCE,
when pleaded, or given in evidence. 590. 592, 3.
renlication to plea of. 637 (?).
PER
INDEX.
PER MINAS,
must be pleaded, in debt on bond. 595, 6.
PERSON,
pleas in abatement to. See tit. Pleas and Pleading
PETITION,
against gaolers. See. on the lords' act. 205, 6.
for day-rules. 961.
on the lords' act. 966.
for an original writ. 103. 1113, 14.
a writ of error. 1065.
to the House of Lords ;
to return certiorari by a short day. 1112.
have the cause appointed, for a short day. 1 125.
PETTY OFFICERS,
in navy, what. 176 (c).
PEWS. See tit- Seats in Churches.
PLACITA. 711. 1115. 1124.
PLEAS and PLEADING,
time for pleading;
upon an attachment of privilege. 273.
a bill against attornies, &c. 275. 420.
prisoners in the custody of the
marshal. 308, 9. 420,
sheriff, &c. 315, &c.
certioran or habeas corfms. 351,2.419, 20, 425.
Jione or recordari, Sec. 360.
upon a bill oi Middlesex, &c. or original writ;
formerly. 419.
at this day ;
when the plaintiff declares absolutely. 42 1 .
de bene esse. 422, 3.
after an imparlance. 424.
four terms. 425.
changing the venue. 426.
demanding oyer. Id. 530, 1.
amending the declaration. 42 6. 654.
judgment o( resfiondeac ouster. 589.
to the jurisdiction. 585, 6.
in abatement. Id.
cannot be pleaded before bail perfected. 423. 587.
after 10 o'clock at night. 622.
obtaining further time to plead : 426, 7.
motion for. Id. 441.
a month what. 427, «.
PLEAS
INDEX.
PLEAS and PLEADING,
general order of pleadingf^. 572.
pleas to the jurisdiction: 573.
in local actions. Id.
ejectment. Id.
transitory actions. Id. 574.
when to be pleaded. 418. 585, 6, 7.
mode of concluding. 585.
must be pleaded in /ier^o/z, and with only Aa//" de-
fence. 584.
in abatement;
to the person of plaintiflF. 579.
defendant. 418. 537, 8. 580, &c.
count. 581.
writ; Id.
form of. Id. 582.
action of. 583.
in scire facias. 1034. 1043.
general requisites of. 583.
may be pleaded by attorney. 584.
beginning and concluding. 583, 4, 5.
cannot be pleaded after a. full defence. 584.
when to be pleaded: 418. 585, 6, 7.
before bail perfected. 587.
must be verified by affidavit. 587, 8.
signed and filed. 588.
replying or demurring to. Id.
judgments on. See tit. Judgments.
writ may be abated in part, and stand good for
the remainder. 583.
time to plead, after judgment of resfiondeat
ouster. 589.
in what cases a second plea in abatement is al-
lowed. Id.
in bar, what; 590.
grounds of defence on:
in actions upon contracts. Id.
for wrongs. Id.
in denial;
of the whole cause of action. 591.
a part of it. Id. 595.
in confession and avoidance;
by matter precedent. 591.
subsequent. Id.
by way of estoppel. Id.
what is aided or waived by. 101. 268.
PLEAS
INDEX.
PLEAS and PLEADING,
pleas in bar;
general -issue, what. 591.
when proper to be pleaded. Id.
what may be given in evidence under it;
in assumfisit. Id. 592.
covenant. 593.
debt on simple contract. Id. 594.
bond, or other specialty. 595.
record. 596.
detinue. Id.
trespass to persons. 597.
personal property. Id.
real property. Id.
against justices, &c. Id.
case. 598.
pleas amounting to. 599.
of colour;
implied. Id. 600.
express. 600, 1.
engrossing, entering and delivering. 62 1 .
need not be signed. Id.
waiving. 623.
withdrawing, to plead it de novo., with a notice of
set-off, &c. 441. 623.
special pleas, when necessary;
in assumfisit. 592, 3.
covenant. 593.
debt on simple contract. 593, 4.
for rent. 594, 5.
gui-tam. 594.
for a penalty. Id.
on bond, or other specialty. 595, 6.
record. 596.
detinue. Id. 597.
trespass. 597.
trover. 598.
action for words. Id. 599.
escape. 599.
must in general be signed and filed. 622,
what pleas need not, but may be delivered. 621, J.
origin and reason of signing pleas by counsel. 622 (r).
striking out, and giving general issue. 623.
rule to abide by. 439. 623, 4.
PLEAS
INDEX.
PLEAS and PLEADING,
pleas in bar;
single or double:
at common law. 608.
by 4 Ann. c. 16. Id. 609.
determinations upon this statute. 609, 10.
motion for, and rule to plead several matters. 441.
611, 12.
all double pleas must be filed. 622.
Q: if they must appear to be pleaded by leave of
the court. 612 (b).
costs of double pleading. 612, &c.
in general, their qualities and conditions. 404, &c.
617, &c.
general pleading, in what cases allowed. 619.
conclusions of. 620.
what are issuable. 428, 9.
searching for. 505, 6.
adding. 441. 624.
amending. See tit. Afnendments.
setting aside. 563, 4. 419. 586. 588.
replications;
in denial; 626.
of the whole plea. 633.
a part of it; Id.
with a traverse: 634.
what it is, and when necessary. 685.
rules respecting it. Id. 636.
in confession and avoidance; 637.
by matter precedent. Id.
subsequent. Id.
by way of estoppel. 626. 637.
qualities of. 637.
may contain several distinct answers to the plea. Id. (i).
must be consistent with declaration. Id.
departure, what. 638.
instances of: Id. 639.
as to time and place. 639, 40.
how taken advantage of. 640.
by way of new-assignment;
general nature of. Id.
as to time. Id.
place. 641, &c.
other circunistances. 643.
PLEAS
INDEX.
PLEAS ahd PLEADING,
replications;
by way of new-assignment;
must be certain. 643.
pleas to. Id. 644.
mode of concluding. 645.
conclusions of. 644, 5.
when delivered or filed. 645.
signed. 622 (/?). 645.
rejoinders, sur-rejoindei's, rebutters, sur-rebutters, &c. 646.
amendment of pleas, replications, &c. 654, 5, &c. 778.
plea or replication bad in part, is bad in toto. 647.
of nui tiel record, how concluded. 688.
replication to. Id.
replication of nul tiel record., how concluded. Id.
rejoinder to. 689.
pleas fiuis darrein continuance;
what. 774. 1047.
when and in what cases pleadable. 774, 5.
in abatement; 775, 6. 1047.
peremptory. 776.
conclusion of. 777.
after bringing money into court. 568 (m).
in bar; 775.
form of, at the assizes. 776.
conclusion of. 777.
waiver of former bar. 776.
must be certain. Id.
how restrained. 778.
proceedings on. Id.
other pleas pleadable at nisi firius. 777.
pleadings cannot be objected to, on demurrer to evidence.
792.
what defects in pleadings are aided after verdict, at com-
mon law. 826, &c.
what defects are amendable. See tit. jimcndments.
cured, as matter of form, by statutes of
jeofails. 834, 5.
repleader; 814.
when granted. 829.
rules respecting. Id. 830.
issues on, by whom made up. 666.
how it differs from u judgment n&;i obstante veredicto.
830, 1 .
PLEAS
INDEX.
PLEAS and PLEADING,
pleadings in scire facias. See tit. Scire Facias.
error. See tit. Error.
PLEA-ROLL. 627. 661, 2.
PLEDGES,
by original. 106.
bill. 401.
want of, aided. 833.
PLENE ADMINISTRAVIT,
plea of;
when it maybe pleaded in «areytrczas. 1020. 1046.
need not be signed or filed. 622.
issue on, by whom made up. 666.
evidence on. 294. 369. 858.
costs on acquittal of one defendant. 90 1 .
confession of, and judgment of assets guandoy See. 633.
scire facias on. 1017, 18.
PLURIES, Writs of. See tit. Co. Sa. Fieri Facias, and Procets.
POLLS, challenging. See tit. Jury.
POLICY of INSURANCE,
delivering copy of. 532, 3.
actions on;
changing venue in. 547.
bringing money into court. 563.
consolidation-rule, what. 557.
history of. Id.
terms imposed on defendant. Id.
motion for leave to take out execution, after verdict
forplaintiff. 488, 9. 909.
in what cases the verdict is conclusive, and in what
not. 558,
costs in. Id. 570, I.
evidence of interest, on execution of inquiry. 523.
PONE, or Si tefecerit securum., 96.
to remove a replevin cause;
what, and when it lies. 352, 3.
direction. 353, 4.
form of. Id.
fee on issuing. 97 (t^).
cause for, when shewn. 355.
what. Id.
effect of. 356,
PONE,
INDEX.
PONE, or Si tefecerit securum.,
to remove a replevin cause ;
receipt and allowance. Id.
return ; <
when and how made. Id. 357.
what is good. 357.
effect of filing. Id.
when the plaint is removed under it. 358.
declaration on ;
de novo. 359.
rule for. Id. 436.
demand of. 359.
non-pros. Id.
appearance ;
rule for. Id. 436.
process to compel. 359, 60,
time for pleading. 360.
subsequent proceedings. Id.
per vadios, to compel appearance. Id.
POPISH RECUSANCY. 579. 589.
POSSESSION, sufficient against a wrong-doer. 396
POTSEA,
what. 811.
when and by whom entered. Id.
stayed in officer's hands. 809.
form of;
on a verdict for plaintiff. 81 1 (z).
nonsuit, or verdict for defendant. /(/.
where a juror is withdrawn. 785 (n).
new one ordered. 811.
amendment of. 661,2. 802.811, 12.
stamping. 841.
marking. Id.
must be brought in, before motion in arrest of judgment,
&c. 840.
rule for bringing it in. Id.
POST-OFFICE Books, inspecting. 539.
POST TERMINUM. 845,6.
POUNDAGE; 978, &c.
levying, on stat. 43 G. III. c. 46. § 5. 9 1 1 .
remedy for: 980, 1.
against the sheriff, when excessive. Id.
POWER of ATTORNEY,
to demand money on award. 760.
PRAECIPE. See tit. Pr9ces8.
Vol. II. 4 E PRJIMUNIRE
INDEX.
PR^MUNIRE. 679.
PRESCRIPTION. 395.
PRESUMPTION,
of payment or release, in debt on bond. 20, 21.
PRISONERS,
jurisdiction over. 28.
commencing actions against ;
in custody of the marshal. 61.
the Fleet. 62 (a). 303 (/).
Exchequer. 62 (a).
proceedings against;
on a removal to or from the Fleet, or prison of an infe-
rior court:
before declaration. 299, 300.
after declaration. 301.322,3.
in custody of the marshal;
fees payable by. 296 (a), 302.
on a civil or criminal account. 296.
how committed or removed to;
on the return of ccfd corfms^ £cc. Id.
a render in discharge of bail. Id.
return to a habeas corfius. See tit. HabeasCorJius ,
proceedings against, previous to the plea;
by the same plaintiff, for the same cause of action,
by bill: 61. 291,2. 303. 303.
in vacation. 303.
original writ. Id.
time for declaring, on a removal, commitment-,
or render in discharge of bail. 304.
further time. 326, 7. 362.
by the same plaintiff, for a different cause of action,
a third person: Id. 306. 305
in term. 307.
vacation. Id. 308.
rule as to detainer. 306 (s). 308.
time for pleading. 308, 9. 420.
custody of the sheriff, &c.
•when and how bailed. 194, &c.
treatment of. 200, &c.
proceedings against, previous to the plea;
by the same, or a different plaintiff. 311.
time for declaring. 311, 12, 13.
further time. 326,7. 362.
mode of declaring: 313, 14.
affidavit of delivery, Sec. 314, 15.
PRISONERS,
INDEX.
PRISONERS,
in custody of the sheriff, &c,
proceedings against, previous to the plea ;
times for appearing, and pleading. 315, 16.
demand of pica. Sec. 317.
notice of filing plea, when necessary. Id.
in custody of the marshal, or sheriflT, fee.
may put in and justify bail in vacation. 233.
cannot commence or prosecute aclions,\vhenattornies..
269, ro."
oh a criminal account, cannot be charged with a civil
action, without leave. 306, 7.
proceedings against, subsequent to the plea;
notice of trial to turnkey good. 319. 693.
times for proceeding to trial or final judgment, and
execution. 318, 19.
mode of proceeding to trial and final judgment. 3 1 9,
charging in execution ; Id. 20.
in the King's-Bench prison. 320.
in a county-gaol. 322.
in the Fleet. Id. 323.
prison of an inferior court. Id.
new charge unncessary, on plaintiff's
death. 323.
when and how discharged, for not proceeding in due
time. Sec. 323, 4. 440.
causes to prevent their discharge. 326, 7, 8.
consequences of being superseded, or supersedeable.
328.
warrants of attorney by. 492, &c.
removal of, by habeas corjius ad testijicandum. 739.
in execution ;
treatment of. 203. 957. 960, &c.
removal of by habias cor/nis, 957.
when entitled to rules of prison. 960.
day-rules. 961, 2.
how relieved by insolvent-acts. 962.
when entitled to benefit of lords'-act. 962, Sec.
when and how discharged under it;
notice, petition, copy of causes, and afiidavit.
965, 6cc.
rule of court, in town. 966, 7.
^ country. 967.
whi n brought into court. 966, 7.
examination : y67.
interrog^atories. 968, 9.
PRISONERS,
JNDEX.
PRISONERS,
in custody of the marshal, or sheriff, 8cc.
in execution ;
when and how discharged under lords' act ;
objections to schedule. 969.
discharge. 967. 970,
assignment of effects. Id.
remanding. 968.
allowance. 969, &c.
when and how compelled to deliver up their
effects. 971, &c.
PRIVILEGE, 625. 696.
of parliament. 77. 110, &c. 170, 1.
from arrest;
personal. 167, &c.
local. 188. 264.
temporary. 189.
of attornies, &c. 171, 2. 264, &c.
writ of. 265.
when allowed against privilege. 266, 7.
waiver of. 267, 8.
how pleaded. 47. 172 Qi). 579.
in what time. 418.
PRIVITY, of Contract. 372, 3.
Estate. 373.
PROCEDENDO ; 190, 91. 466. See also tit. Habeas Cor/ius,
what, and when it lies, and when not. 346, &c.
on a removal by certiorari or habeas corfius. Id.
after return filed. 348.
on a removal by re. fa. lo. &c. 353. 356.
PROCEEDINGS, setting aside and staying. See tit. Setting
aside.) and Staying Proceedings.
PROCESS,
attachment, in trespass. 78.
bill of Middlesex. 24. 78. 86, 7.
^^*. X bill of Middlesex. 78, 9.
plurics 3
latilat. 24. 79. 81.
"^l'^^ \ cahias. 78, 9. 81.
plunes 3
non omittas. 79, 80, 1. 192. 257.
should correspond with the previous process. 80,
in Jt'ales and the C'g,nnti' s-Palatine. 85.
in what manner issued. 80.
by whom signed. Id.
■when sealed. 81.
PROCESS,
INDEX.
PROCESS,
prxcipe^ &c. 81.
common; Id.
need not be in a plea of trespass. 3S.
notice to appear to. 146, 7.
special; 81.
ac-etiain: 82. 84.
on the lottery-act. 84.
against bail. Id.
against several defendants. 80.
direction. 84, 5, 6.
teste. Id.
return. 86, 7.
indorsementof the date. 88,9.
sum sworn to. 145.
attorney's name. 89, 90. 271, 2l
irregularity in. 90, 1. 147.
motion to quash. 440.
amendment of. 83. 91.660.
by original;
summons. 105. 108. 376.
attachment: 106. 108. 376.
how executed. 106.
testatum pone or attachment. 107.
distringas: Id.
issues. Id. 108.
how far affected by stat. 12 Geo. I. c. 29. Id. 109.
against corporations. 109.1)6.
hundredors. 116, See.
peers, and members of the House of Commons.
112.
capias. 122.
alias "^
pluries [ ^ . ,c,« ^
. , , > cajnas. 123, 4.
testatum C '
non omittas J
teste and return of. 113. 124,
amendment of. 104. 125.
bailable. 150.
not bailable. 146.
common or serviceable: Id. (d).
notice to appear to. 146, 7.
service of copy of; Id. 148.
■* in what cases. 146. 148.
of what process. 146, 7, 8.
PROCESS,
1 INDEX.
PROCESS,
service of copy of;
by whom. 148.
when. Id. v
where Id. 149.
how. 149.
ag;ainst husband and wife. Id.
upon the bill against members of the House of Com-
in what cases void. 183. mons. 113, &cc.
when entered on a roll. 1 10.
contempt of. See tit. Attachment.
for bringing in the jury. See tit. Jury-Preceii.
of execution. See tit. Execution.
error in, assignable in the same court. 1056, i.
PROCHEIN-AMY; See tit. Infant.
liable for costs to the plaintiff's attorney. 72 (a),
PROCLAMATION, Writ of; 128, &c.
foreign. 129, 30.
PROFF.RT m Curia. 395. 1024. 1042.
PROHIBITION,
when grantable the last day of term. 453.
issues in, may be made up by defendant. 682.
trial by proviso in. 700.
costs in. See tit. Costs.
PROMISES,
express. 2.
implied. 3, 4.
PROMISSORY-NOTES. See tit. Bills of Exchange s^nA Pro-
missory JVotes.
PROTECTION,
writ of. 189.
of the king's debtor; Id.
plea of. 579.
PROVISO, Trial by. See tit. Trials.
PUIS DARREIN CONTINUANCE. See tit. Pleas and
Pleading.
PURCHASERS,
how affected by judgments. 851. 856, &c.
PUTTING off TRIALS. See tit. Trials.
Q
QUAKER,
affirmation by, to be admitted an attorney. 45.
to hold to bail. 154.
not sufficient to ground attachment. 761.
QUAN-
INDEX.
QUANTUM MERUIT, or VALEBANT. 3.
QUARE IMPEDIT,
inquiry of damages in. 517.
by the king, double plea not allowed in. 610.
issues in, may be made up by defendant. 682.
trial by proviso in. 700.
damages in. SOO.
costs in. See tit. Costs.
QUARTO DIE POST. 101.
QUASHING Writs oi certiorari^ when allowed or not. 335.
error. See lit. Error.
QUI-TAM ACTIONS. See tit. Penal actions.
QUO-MINUS CAPIAS. 62 (a).
QUO WARRANTO. 611. 838, 9.
R.
RAVISHMENT of Ward. 1061.
REAL ACTIONS; 1.
damages in. 799.
costs of. See tit. Costa,
scire facias in. 1000.
REBUTTERS. See tit. Fleas and Pleading.
RECAPTION. 190. 311.
RECOGNISANCE,
what. 984.
at common law: Id.
to the kingor'a subject. Id.
before whom acknowledged: Id.
in London. Id,
must be inroUed. 985.
of bail,
• in the action;
by bill. 219, 20.992.
original: 220. 992.
to reverse an outlawry, 142.
entry of; 233.
by whom, when, and how made. Id.
proceedings on: See tit. ^a//and ScireFacias.
staying. 474, 5.
■*i> error; 991, 2. 998. 1075,6.
in what sum. J 08 5.
Avhen the party must join in it. Id. 1086.
when not. 1086 (/).
form of,
in the Common-Pleas. 1086.
King's-Bench. Id.
RECOG-
INDEX.
RECOGNISANCE,
of bail in error;
proceedings on. See tit. Bail and Scire Facias,
by statute;
on a statute-merchant. 985, 6.
staple. 945. 986.
in nature of a statute-staple. 987, 8.
from what time it binds the landj
at common law. 989.
by the statute of frauds. Id.
registering, in Middlesex and Yorkshire. 862. 990.
RECOGNISANCE-ROLL. 233.
RECORD; See tit. A'ul del Record.
of J^'isi Prius. See tit. .^isi Prius.
when removed or not, on a certiorari or habeas cor*
tiu8. 341. 349. 691,2.
RECORDARI FACIAS LOQUELAM,
what, and when it lies. 352. 354. 1139.
direction. 354.
form of. Id.
fee on issuing 97 (x»).
cause for, when sI1e^vn. 355.
what. Id.
effect of. 356.
receipt and allowance. Id.
return;
when and how made. Id. 357 .
what is good. 357.
effect of filing. Id.
when the plaint is removed under it. 358;
declaration on;
de iiovo. 359. •
rule for. Id. 436.
demand of. 359.
nou-firos. Id.
appearance;
rule for. Id. 436.
process to compel. 359, 60.
time for pleading. 360.
subsequent proceedings. Id.
RECOVERY,
for the same cause, when pleaded or given in evidenfce;.
592. 594. 596. 598.
scire facias on error to I'e verse. 1034. 1 116.
RE-DISSEISIN, damages on writ of. 799.
RE-EXTENT. 950, l, 2.
REFERENCE;
INDEX.
REFERENCE; See tit. Arbitration.
how far a stay of proceedings. 470. 748.
effect of agreement to refer. 748.
to the master. 485. 514, 15.
REGISTERING JUDGMENTS. See tit. Judgments,
REJOINDERS. See tit. Pleas and Pleading.
RELEASE,
when presumed in debt on bond. 2 1 .
when pleaded or given in evidence: 592, 3. 596, &c.
1044. 1046,7.
after the last continuance. 775, 6. 1047.
of actions, a bar to a scire facias. 982.
errors, plea of. 1034. 1062. 1111. 1115, 16. 1119,20, 1.
RELICTA VERIFICATIONE. See tit. Cognovit Actionejn.
REMANETS; 699. 735. 773.
costs on. See tit. Costs.
REMITTITUR of Damages. 805.
Record, when necessary. 11 35, 6.
RENDER. See tit. Bail.
RENT,
staying proceedings on payment of. 482. 486, 7.
payable under an execution. 925, 8tc.
RENT-CHARGE, extendible on elegit. 939.
SECK, not extendible. 940.
REPLEADER. See tit. Pleas and Pleading.
REPLEVIN, 376.
action of; 7.
limitation of. 15.
an action within the 24 G. II. c. 44. § 6. 75, 6.
not within the statute 27 Eliz. c. 8. 1061.
staying proceedings in. 488, 9.
set-off not allowed in. 603, 4.
avowant in, cannot discontinue. 629.
move for judgment as in case of a
nonsuit. 703.
issues in, may be made up by defendant. 682.
trial by proviso in. 700,
finding of jury in. 798 (/2).
judgment in. 842, 3.
damages in. 516, 17.798.
costs in : See tit. Costs.
of double pleading. 615, 16, 17.
execution in. 911.
REPLICATIONS. See tit. Pleas and Pleading.
Vol. II. 4 r REPORT.
INDEX.
REPOK T. See tit. Master's Rejiort.
REQUEST, when necessary to be specially alleged. o87.
RESCOUS, not within the statute 27 Eliz. c. 8. 1061.
RESCUE,
when the sheriff may return it. 208. 255.
when not. 208.
plaintiff's remedy thereon. Id. 209.239.437. 960.
fine, Sec. 209.
RESIDENCE, of Plaintiff, calling for. 476, 7.
RESPONDEAT OUSTER; See tit. Abatement.
judgment of, in what cases. 588, 9.
RESTrrUTION, on Outlawry. 133, 4. 143.
reversing or setting aside judgment. 936,
7. 1137, 8.
RESUMMONS. 1118.
RETRAXIT. 841.
RETURN-DAYS of Writs;
general. 99.
by original. 100.
bill. 86, 7.
RETURNS to Writs;
mesne. 91, 2. 255, 6. 200.
final. See tit. Execution.
o{ certiorari or habeas corfius. 341.
recordari facias loquelam., &c. 356, 7 .■
scirejacias. See tit. Scire Facias,
error. 1090, 91. 1097,8.
certiorari. 1112, 13.
REVERSION, extendible on elegit. 939.
REVOCATION, of power of Arbitrators. 748, 9.
RIENS e?i arrere, plea of. 595.
per discent. 854, 5.
RIGHT, Writ of, no damages in. 799.
RIOT-ACT; 116. 119.
execution on. 120, 1.
ROLL of Attornies; 46, 7.
strikhig off attornies from. 60.
ROLLS. See tit. Issue-roll and Judgment -roll.
ROMAN-CATHOLIC Attornies,
oath by. 45.
RULES and ORDERS,
general;
ol Elizabeth^ 6 & 7. M. 1564. C. P. Error. 1074, 5.
^ 9. E. 1567. C. P. Attornies. 35.
15. M. 1573. C. P. Attornies. Id.
RULES
INDEX.
RULES and ORDERS,
general;
oi Elizabeth, 23. E. 1581. C. P. Error. 1074, 5
24. T. 1582. C. P. Attornics. 35.
James I. 2. T. 1604. § 1. Filing Pleas. 622.
§ 2. Marking Postea. 841.
3. H. 1605. Motions., Ruks. 461.
5. H. 1607. Bringing mo7ieyinto court. 561.
566.
6. E. 1608. Return of Latitat^ Sec. 91.
7. M. 1609. Mtice of Bail. 222.
13. E. 1615. Record of A'^isiPrius., Marshal's
fees. 773.
17. E. 1619. Docketing Judgments. 859.
19. H. 1621, Wales, Judicial Writs. 929.
Charles I. 11. E. 1635. Certiorari, Error. 1115.
14. H. 1638. Habeas Corfius, Prisoners. oO'Z.-
17. M. 1641.Z)(?77Zurrfr-5oo.('s,&:c.686.1 123.
20. T. J 644. Clerk of the Errors. 1070.
21. T. 1645. Sheriff of Chester, Return of
Writs. 85.
M, J\,"otice of Bail. 222.
H. — — — Sheriffs and their Deputies. 33.,
23. E. 1647. Under-sheriffs. Id,
H Filing Bail-iiiece. 223.
1649. H. § 2. Entering Issue. 714.
1650. H. § 3. Filing Bail-fiiece. 232.
1651. E. Summomng Juries. 724.
M. Bail, Habeas Coriius, JVotice of Trial. 343,
702.
1654. M. § 1. Attornics, Bail, Sheriff's Deputies. 33.
36. 54. 57. 230.260.
§ 2. Sheriffs, Bailiffs, Warrant to arrest . 33.
192.
§ 4, Attotnties. 36.
§ 5. Venue. 426. 545. 549. 552.
§ 6. Bail, Undertaking to afijiear. 199.
§ 7, 8. Bail, Habeas Corfms, Procedendo.
222. 299, 300, 301. 322. 336. 342, 3,
4, 5, 6.
§ 9. Bail, Habeas-Corfius, Venue, Attornics.
152. 211.272.342. 351.
§ 10. Afificarance, Attornics, Undertaking to
afifiear. 58. 64.213,
§ 1 l,//a(!»ea5-CWw«,Pmo«fr*.297.304.309.
RULES
INDEX.
RULES and ORDERS,
general ;
of 1654. M. § 12. Declaration by Original. 377.
§ 13. Prisoners, Amendment. 303. 654.
§ 14. Bolls. 844.
§ 14, 15. C. P. Declaration, A'onfiros. 364.
§ 15. Declaration, Imparlance. Id. 420.
§ 17. Demurrers, jimendment. 648. 651
§ 18. Kotice of Trial, Costs. 698, 9.
§ 20. Special Verdicts. 807.
§21. Venire de fiovo. 831.
I 22. Habeas Corpus, Costs. 352.
1656. E. Attornies. 57.
T. § 1. Sealing and signing Writs. 33. 81.
§ 2. Clerk oj' the Treasury. 31.
1657. E. § 1. Docketing Judgments. 859.
§ 2. Cojnmon Bail. 215.
§ 3. Entering Issue. 714.
H. Entry of Pleadings, &c. 681. 845.
1658. E. Special Causes. 459.
1659. E. Sealing and Signing Writs, 33. 914.
CAar/es II. 13. T. 1661. Special Bail. 223.
M. Sealing Writs. 33.
14. E. 1662. Attornies. 57.
T. § 1. Common Bail, Ejectment.
211
Attornies. 57.
C. P. Prisoners. 303.
Attornies. 57,
, Trial at Bar. 771.
§ 1 . Sealingandsigning Writs.35
§ 2. Warrant of attorney. 492
§ 3. Clerks, Secondary. 844.
§ 4. Sheriff^ s Deputies and
Warrant. 33. 192.
T. — — § 2. Sealing Record of JVisi
Prius. 713.
M. § \. Additionsin Affidavits. \55.
^'2. Ac-etiam, Arrest. 83. 172.
184.
§ 3. Clerk of Declarations. 274,5.
15 & 16 H. § 1. Clerks, Secondary. 844.
§ 2. Issues, Trial, Eritering
Causes. 704. 713. 772.
16. E. 1664. § 1. Prisoners. 325.
§ 2. .Error. 1084.
RULES
INDEX.
RULES and ORDERS,
general;
of Charles II.
James II.
25
28
29
31
iVUUamiS Mary. 1. H
16. T. 1664. Filing Pleas. 622.
M. Bailf Habeas-Corfms .
222. 224. 345.
18. E. 1666. Signing Pleas, 8cc. 622.
669. 686. 1123.
19. E. 1667. Clerk of Declarations.
274>,5.
20. T. 1668. Clerks, Secondary. 844.
20 & 21. H. Issues^ Trial. 704. 713.
22. T. 1670. Sfiecial Bail. 234.
H. 1672. Sealing Writs. 32.
T. & M. C. P. 1676. Error.
1071.1084. 1090. 1093.
M. Esca/ie., Prisoners. 299.
E. 1677. Bail, Habeas-Corfius.
343.
H. 1678. Filazers, Signing Writs .
31.
E. 1679. Filazers, Signing Writs.
Id.
T. ■- ■ Sealing Record of Alisi-
Prius.712.
1680. Sealing Writs. 33.
1681. Co/lies of Error, &c.
1124.
Common-Bail, Ejectment.
211.
1684. Error. 1070, 1. 1084.
1685. Record of Msi-Prius,
Rolls. 713, 14.
— Demzirrer-Books, &c.
460. 685, 6,7. 1123.
H. 1686. Bail, Habeas-Corfius .
342.
H. 1687. Pau/ier. 67, 8.
1688. Warrants of Attorney,
Issue-Roll. 66. 681.
1689. Common-Bail, Judg-
ment on Warrant of Attorney, &c.
211.
2. M. 1690. Filing Pleas. 622.
4. T. 1692. § 1. Ajlifiearance, Pro-
cess. 210.
§ 2. Common-Bail. 211.
RULES
32. E.
33. E.
M.
36. E.
l.T.
2. E.
3 8c 4.
4. E.
INDEX..
RULES and ORDERS,
general;
of William iJf Mary.
miliam III.
Anne.
Ai. T. 1692. § 3. Sealing Writs. 33.
5. E. 1693. § 1. Bringing in Rolls.
845.
. ■ § 3. Prisoners. 309. 312,
13, 14, 15, 16, 17. 324.
M. Bailin Error. 1087.
H. Habeas-Corfius, Prison-
ers. 303.
6. H. 1694. Fines. 275.
8.T. 1696. § 1. Alias Scire Facias,
1039.
— — § 2. Sfiecial-Juries. 726.
729. 771.
» § 3. Bail by Commission-
ers, Habeas-Corfins .
220, 1. 224. 227.
344.
1697. Bringing in Rolls. 845.
Prisoners, Common Bail.
326.
Bringing in Rolls. Id.
Bringing in Rolls. Id.
1698. Bail, Habeas-Corfms.
343.
11. E. 1699. § 1. Enteri?7g Demurrer.
682, 3.
. § 2. Sfiecial Bail, Con-
dnuance-Day. 217. 232.
1700. § 2. Declaration, Issue-
Money. 406, 7, 8. 678.
1702. § I. Bail, Render. 237.
§ 2 . Aotice of Render,
Prisoners. 241. 304.
, T. 1704. Bail, Render. 239.
M. ■ Attornies. 36.
, M. 1 705. Abifzce 0/ Trm/. 697.
E. \706. Im/iarlancc: 418.
M. § 1. Entering Issue,
Record of Msi-Prius,
Bringing in Rolls.
682.713, 14.844,5.
» § 2. Warrants of At-
torney. 65, 6. 406.
RULES
12. T.
I.E.
INDEX.
RULES and ORDERS,
general;
oiAmie. 5. M. 1706. § 3. Time for pleading . 420.
6. T. 1707. Prisoners^ Rcca/Uion. 311 (^j).
8.M. 1709. § 1. Sfiecial-JSail. 217.
§ 2. Exception to Bail. 224,
9. H. 1710. C. P. Declaration. 365.
George I. 2. T. 1716. Prisoners. 304. 312. 318. 324.
7. E. 1 72 1 . Sealing Record ofMsi-Prius. 713.
8. H. jVotice of Inquiry. 520. 694.
E. 1722. C. P. Prisoners. 311.
ll.T. 1724. Declaration. 406 (z).
M dttornies. 57.
QeorgeW. l.M. 1727. § 2. C. P. Demand of Declara-
tion. 365.
T. ■■■■ Declaration^ Rule to filead^ De-
mand of Plea. 406. 408. 431, 2.
2. T. 1728. Declaration. 406, 7, 8.
H. § 1. Time for pleading. 420.
§1,2. Ac-etiam. 83.
§ 3. Signing Judgment. 431.
11..1729. Exception to BailbyOi'iginal. 224.
3. M. Prisoners. 296.
4. Dec. 17. 1730. Prisoners. Id.
E. 1731. Warrants of Attorney. 492, 3.
5.E. 1732. § 1, 2. .SazV. 224, 5. 235.
§ 3. Scirc-Facias. 1039, 40.
5 8c 6. T. § 1. Time for pleading . 421.
§ 2. /??//^ to return Writ., and
bring in Body. 253, 4. 258.
6. M. §2. C. P. Exception to Bail.
245.
§ 6. C. P. Bail in Error. 1087.
8. H. 1734. § 1. C.V. Prisoners. 303.
§2.C. P. Arrest, Priso7iers.
186, 7.
9. M. 1735. Filing Affidavits. 454.
10. M. 1736. § 1. Bail-piece, Declaration by
the bye. 215. 365.
§ 2, Declaration dc bene esse,
Time for pleading. 410, 11. 423.
§ 3. Copy of Declaration. 408.
10 8c 1 l.T. 1737. Entering Causes. 773.
11&I2.T. 1738. Rolls. 68\.
!3. E. 1740.§ 1, C. P. Affidavits, Commis-
sioners. 15 5.
RULES
INDEX.
RULES and ORDERS,
general;
oi George II. 14. M. 1740, § 1. Attornies, Bail. 230.
§ 2. Sheriff's Officer, Bail. Id.
H. Entry and Trial of Causes.
773,4.
15. E. 1742. § 1. Jc-etiam. 84. 404. 995.
■ § 2 . Affidavits f Cornmissioners .
155.
■ ■ § 3. DeclaratioJiy Prisoners.
29. 290. 308.
17. M. 1743. Entry and Trial of Causes.
773, 4.
20,11. \7 16. Attachment of Privilege.
271,2.
3d Afir. 1747. Sealing Blank-Writs. 33.
26 & 27. T. 1753. in Scac. Bail in Error.
1084. 1087 (0.
30. M. 1756. § 1. Enlarged Rules. 460.
§ 2. Entering and arguing
Special-Causes. 459, 60.
32. & 33. T. 1759. High-Bar-Money . 463.
33. E. 1760. in Scac. Bait in Error. 1085.
George III. 6. H. 1766. Enlarged-Rules. 460.
T. Rule to return Writ y and bring
in Body. 253. 258.
8, H. 1768. Abode of Attomies, Service of
Mtices, &c. 47, 8.
E. Bailf Render, Commit7nent .
240.
15. H. 1775. Enlarged-Rules. 460.
17. M. 1776. Enlarged-Rules. Id.
T. 1777. Attachment. 149. 437.
19. T. 1779. Oyer of Original- Writ. 529, 30.
22. H. 1782. C. P. Bail, Venue. 375.
T. Declaration, Time for plead-
ing. 410, 11. 423.
23. M. Original-Writ, Costs. 95.
H. 1783. Writ of Inquiry. 532,
26. H. 1786. Prisone?-s. 304. 313, 14. 318,
19.324.328.
28. E. 1788. Justifying Bail. 228.
30.E. 1790.§ 1. Short Mtice of Trial.
429. 697.
= ~ § 2. Rules of KiTig's-BeJich
Prison. 960.
RULES
INDEX.
RULES and ORDERS,
general;
of George III. 30. E. 1790. § 3. Day-rules. 961.
§ 4. Bail-pieces. 213.
T. — — § 1. Writs .fCustoS' Br evium.
255.
— — § 2. The/ 6z/ Sfiecial-Jury .
729. 774.
."Jl, M ^2. Bringing Money into
Court. 569,
E. 1 79 1 . Affidavits of illiterate Per--
sons. 451.
T. ■ ' ■■ § 1 . Sheriffs Rule to bring in
Body. 260, K
§ 2. Jttornies, 41, 2. 44.
32. M. Sheriffs Returning WritSy
Attachment. 255.
H. 1792. § 1. Attendance on Master.
57.286.
§ 2. EnteringCauses. 77 3(v).
33. E. 1793. § \ .Resealing Distringas and
Record of Msi-Prius.7 \4,
722. 824.
■ § 2. Compounding Penal-
Actions. 502.
§ 1. Bail. 235.
§ 2. Attornies. 44.
Interrogatories on Attach-
ment, 59.
Seal-Office. 32.
H. 1794. Perem/itories. 59:
— — — Enteritig Causes. 77 o.
35. H. 1795. Issue-Money. 679.
E. i?w/(?e o/King's-B'tich Pri-
son. 960.
T. § 1. Midsummer-Day. 87.
— — § 2. Attendance on Judge's
Su?nmons. 427.
§ 3. Justifying Bull. 228.
36. M. § 1. Filing Affidavits. 455.
§ 2. Justifying Biil. 232.
§ 3. Issue-Money. 679.
— § 4. /?«/e to set aside Award .
452.
H. 1796. § 1. Affidavits on Motions.
450.
RULES
Vol. IL 4 G
INDEX.
RULES and ORDERS
general;
of George III
36
.H.
1796.
§ 2. Enlarged-Rules. 460.
E.
Insolvent-Debtors. 969.
T.
Rules of King's-Bench Pri"
son. 960,
37.
M.
Affidavits by several Defio-
nents. 451, 2,
Costs on Motions. 458.
Day-Rules. 962.
H.
1797.
Insolvent-Debtors. 967.
38.
M.
Intitling Affidavits. 155, 6.
Special-Cases. A&O (o). 809.
H.
1798
. Demurrer-Books. 460. 686.
1123.
40.
T.
1799.
Pc/ier-5oo/ts.460. 687.1 123.
41. M, 1800.iSerwceo//?«/es,&c.49.454.
E. 1801. Prisoners, Committitur. 321,
■ Peremfitories. 461.
42. M. ■ Warrant of Attorney, Defea-
zance. 491. 500,
H. 1802. C. P. Days for Arguments. ^
459.
T. Annuity. 449 (y).
particular;
on the crown side:
to answer the matters of an affidavit. 59.
for an attachment. 437, 8. 452.
what may or may not be moved for on the last day
of term. 452, 3-
on the plea-side:
given by the master;
to declare. 364, 5.
reply. 625, 6.
rejoin, surrejoin, See. 646.
enter the issue. 680. 682. 701.
produce the record. 690.
for a trial by proviso. 701, 2.
given by the filazer;
to appear to 21. pone or recordari, &c. 359.
declare, on a removal by /w/ze or reco7-dari, held.
given by the clerk of the papers;
to return the paper-book. 676.
RULES
INDEX.
RULES and ORDERS,
particular ;
on the plea-side :
given by the clerk of the errors ;
for better bail. 1087.
to certify the record. 1088, 9.
allege diminution. 1104, 5.
assign errors. 1 105, 6.
given by the clerk of the rules;
as a matter of course:
to plead. 430, 1. 436. 646. 654, 1041.
for judgment;
when necessary to be given:
on inquiry. 523.
nul-tiel-record. 692.
posteas. 436. 813.
scire facias. 4:36, 1040. 1102.
when not necessary:
on final judgment by default. 5 13.
demurrer. 687.
side-bar rules:
for the sheriffto return the writ.252,3,4. 436. 928.
bring in the body. 257, 8, 9. 436.
time, or further time to declare. 361, 2. 436.
to discontinue. 628.
be present at taxing costs. 436.
pay money into court, in C. P. 565 (J).
for a scire facias to revive a judgment, under ten
but above seven years old. 436, 7. 439 (o).
1007.
cannot be had the last day of term. 452, 3.
obtained on the motion, or signature of counsel;
where an action is depending:
on behalf of the plaintiff. 438, 8cc.
defendant. 440, $cc. 1048.
in ejectment. 442, &c.
where no action is depending:
to set aside annuity. 445, &c.
absolute in the first instance: 436, &c.
requiring only counsel's signature. 437 (g),
&c.
by consent. Id.
to shew cause: 436, &c.
drawing up. 453. 457.
service of. 47, 8, 453, 4.
how far a stay of proceedings. 248, 9. 449.
454.
RULES
INDEX.
RULES and ORDERS,
particular;
on the plea-side:
obtained on the motion, or signature of counsel;
shewing cause against. 454.
making absolute. 455.
standing over. Id.
enlarging. 456. 460, 1.
reviving. 455, 6.
amending. 461.
/ opening. Id.
not to be moved for contrary to a former
rule. Id.
when appointed for particular days. 459.
brought on peremptorily. 59, 60. 460, 1 .
costs of. 457, 8.
not records. 437.
evidence of. Id.
RULES of the King^'s-Bench-Prison; 960.
limits of. Id.
■when grantable. Id.
when not. Id. 961.
S.
SATISFACTION; See tit. Accord and Satisfactioti.
by levy on fieri facias. 937.
taking the body on ca. sa. 957, 8.
entry of. 845. 981.
SCANDALUM MAGNATUM. 547. 1061.
SCIENDUM. 712.
SCIRE FACIAS,
what. 982.
its general nature. Id. 983.
to recover an outlaw's debts. 136.
obtain execution. 982, Sec.
for other purposes. 143.936,7.982.1034. 1116.1137
not within the stat. 27 FMz. c. 8. 1061, 2.
statutes of limitation. 17.
on a recognisance; 983.
at common-law: 984.
against bail in the action; 471. 991.
when it lies. 991, 2.
a personal action within the stat. 16 £c 17 Car. II,
c. 8. 1082.
out of what court it issues. 996.
^vhen it may be commenced. 994.
SCIRE-
I
INDEX.
SCIRE-FACIAS,
on a recognisance;
at common law:
form of. 996, 7.
not within the stat. 27 Eliz. c. 8. 1061, 2.
need not be entered in sheriff's book, if filed in
time. 1040,
against bail in error; 998.
out of what court it issues. Id.
by whom made out. 999.
form of. Id.
by statute:
after a year. 990,
death of conusee. 991.
eviction. 941, 2. 951,
on a judgment; 983.
by and against the same parties:
after a year and a day. 999.
history of, and when necessary ;
in real actions. 1000.
personal actions. 1001.
ejectment. 1002.
after interlocutory judgment. 1003.
former scire facias. 1009.
error. Append. Chap. XLII. § 43, &c.
year, how computed. 1003.
when not necessary;
in the case of the king. 1004.
upon outlawry after judgment. 131.
after execution taken out within the year. 1004.
defendant is charged in execution. 323.
stay of execution by agreement. 504, 5. 909.
1005.
error. 1005, 6.
injunction. 1006.
out of what court it issues. 1007.
rule or motion for. 436, 7. 439 (o). 1007.
form of: 1007, 8.
upon the judgment of an inferior court. 351, 2.
in error; See tit. Error. 1008, 9.
cjiiarc executioncm non. 1009, 10. 1097. 1100, Sec.
ad audieJidum errores. 1097. 1108. 1115, 16. 1141.
firocessum et recordum. 1034. 1116.
after non/iros on writ of false-judgment. 912.
for demands arising after judgment;
in covenant. 1010.
annuity. Id.
SCIRE-
INDEX.
SCIRE-FACIAS,
on a judgment;
by and against the same parties:
for demands arising after judgment;
in debt on bond, for payment of an annuity. 1011, 12.
money by instalments.
1012.
performance of covenants. Id.
to have execution of future effects; 1000.
of bankrupts. 1013, &c.
insolvent-debtors. 1016, 17.
against executors or administrators ;
on a judgment of assets guando accidermt. 1017,
18, 19.
de bonis fir ofiriis: 1000. 1017, 19, 20.
scire fieri inquiry. 933. 1020.
upon a change of parties: 1021.
by marriage. Jd.
banki-uptcy. 849. 1023.
death: 1024.
of a sole plaintiff or defendant;
between verdict and judgment. 847. 1024.
after interlocutory, and before final judgment.
848. 1025, &c.
of one of several plaintiffs or defendants;
pending the suit. 1027.
after judgment. 1028, 9.
of one plaintiff or defendant;
after final judgment,
by or against personal representatives:
1029, Sec.
form of. 1031, 2.
by an administrator de bonis non. 1030, 3 1 .
against heirs and tertenants; 1032, 3.
on the death of one of several defend-
ants. 1033.
form of 1034.
against tenenants; Id.
in error, to reverse a fine or recovery.
Id.
generally: Id. 1035.
where brought. 1035, 6.
teste and return. 1036.
not amendable. Id. 1037.
summons. 1037.
sheriff's return;
scire-fieci, 1038.
SCIRE-
INDEX.
SCIRE-FACIAS,
generally:
sheriff's return;
nihil habet. 1038.
scire feci to one, and nihil habet to another. Id.
against heirs and tertenants. Id.
alias; Id.
teste and return, 1039.
rule to appear. 436. 1040.
judgment by default. 1040.
entry of proceedings. 1041.
appearance. Id.
declaration; Id. 1042.
on a recognisance. Id.
judgment. Id.
staying proceedings in, pending error;
against principal. 470.
bail. 474.
pleas;
in abatement. 1034. 1043.
bar;
by bail. 1044, 5.
on a judgment. 1046.
must be delivered. 622.
demurrers: Id. 1047.
must be delivered. 622,
issues: 1047.
by whom made up. 666.
relief on, by audita querela., See. 1047, 8.
after scire-feci. Id.
two nihils. Id.
damages and costs: 798. 1076. See tit. Contn.
judgment reversed for. 1 129,
execution. 1040, 41.
SCIRE-FACIAS Book, what. 1040.
SCIRE-FIERI-Inquiry. 933. 1020.
SCOTLAND,
within the statute of limitations. 18.
affidavits sworn in. 156.
privilege of peers of, from arrest. 169, 70.
sequestration in, no bar to an arrest. 1 8 1 (u).
plaintiff residing in, must give security for costs. 47iB.
error from. 1063.
seal-offk:e,
when open. 32.
holidays at. 33.
SEAMEN.
INDEX.
SEAMEN,
limitalion of actions for wages of. 17.
arrest of. 175, 6, Sec.
SEARCHING for Pleas. 505, 6.
SEATS in Churches
actions for disturbance of: 397.
evidence in. Id.
SECONDARY; 30.
when the clerks anciently accounted with him. 844 (j/),
SECURITY for Costs. 476, 7, &c.
Prisoner's allowance. 970, 1.
SEQUESTRATION, Process of. 931, 2, 3.
in Scotland., no bar to an arrest. 181 (m).
SERVICE,
under articles of clerkship. See tit. Attomies.
of process. See tit. Proceas.
notices, Sec. 47, 8, 9.
rules. 48, 9. 453, 4.
declaration in ejectment. 442, 3, &c.
allowance of writ of error. 1070.
SESSIONS; 37.
books of. See tit. Inspecting Books, &c.
attorney's bill taxable, for business done at. 282.
SETT OFF,
at common-law. 601.
by statutes. 602, 3.
in what actions allowed. 603.
in what not. 603, 4.
cannot be of a penalty. 604.
general damages. Id.
debt barred by the statute of limitations. Id.
debts must be mutual, and due in same right: Id.
cases of partners. Id. 605.
husband and wife. 605.
executors and administrators. Id.
ti'ustees. Id.
assignees of bankrupts. Id. 606.
when it must, or may be pleaded. 593, 4. 606.
mode of replying to plea of. 637 (/).
notice of, when and how given. 441. 606, 7. 623.
form of. 607.
proceedings on. Id 608.
particulars of. 536.
of costs, when allowed. See tit. Costs.
SETTING aside Awards. See tit. Arbitration.
Executions. 935, 6.
SETTING
INDEX.'
SETTING aside inquisitions. 524.
Judgments by default. See tit. Judgmerits.
Pleas. 419.
Proceedings,
for irregularity. 434. 440.
costs on. See tit. Costs.
difference bet\veen setting aside, and staying
proceedings. 435.
SEVERAL-Plaintiffs,
signingnote on lords' -act. 970.
Defendants, process against. 80,
declaring against. 424, 5.
making up issues against. 670.
notice of trial to. 695, 6.
costs in actions against. See tit. Costs.
Counts or pleas, costs of. See tit. Costs.
Issues, how made up. 666. 669, &c.
SHAM-PLEAS, discountenanced. 657 (t).
SHERIFF,
an officer of the court. 33.
duty of. Id.
punishable for misbehaviour. Id. 54.
attornies not liable to serve the office of. 265.
his officers. 191, 2.
warrant. 192.
authority under the writ. 191.
not bound to take notice of the defendant's privilege. 171,2.
175. 183. 189 (6),
entering a liberty without a wo72-07«iV^a,9. 192, 3.
his duty upon an arrest; 194.
by a special bailiff'. 253.
under the stat. 43 G. III. c. 46. § 2.
200, 1, &c.
his treatment ofprisoners, arrested on mesne-process: 200.
when to carry them to the county-gaol. 203.
penalty on, for misbehaviour. 207.
his duty upon a special ca/iias utUigatuvi. 135.
in what cases liable for an escape. 207, 8.
when he may return a rescue. 208.
of ruling him to return the writ: 252, &c.
in what cases the rule cannot be had. 253.
at what time it may be taken oiu. /(/. 254.
of the service of the rule. 254.
when to make his return. 100. 254, 5.
liable to an attachment for not makinc it. 254.
Vor.. 11. 4 11 SUKIUl'l.
INDEX.
SHERIFF,
of county'palatine, amenable to the court for contempts.
254, 5.
his return, and in what cases he is liable to an action thereon .
255, 6.
to process by original. 107.
of ruling him to bring in the body: 257, 8.
at what time the rule may be taken out. 258, 9.
liable to an attachment for not complying with it: 259,
60, &c.
origin of this practice. 256.
how far liable thereon. 202. 262.
in what cases relievable, and in what not. 263,
upon a render. 235, 6.
death. 263.
putting in bail, 8cc. Id.
his power and duty under an execution. 924, 5.
property in goods taken in execution. 925.
may maintain trespass or trover for them. Id.
time enlarged for making his return to xs.Jieri-facias. 928.
his return to process of execution. 928, 9. 956. 993.
not bound to execute writ of false-judgment, without being
paid his fees. 1140, 1 .
actions against. 6. 399. 207.
SHERIFF'S-OFFICERS, &c. 191, 2. 200. 204.
cannot be bail. 230.
action against, on the 32 Geo. II. c. 28. § 12. 469, 70.
for money levied by distress, after reversal
of outlawry. 927.
SHIP'S-ARTICLES, delivering copy of. 533, 4.
SHORT-NOTICE of Trial. See tit. Trials.
Inquiry, See tit. Inquiry.
SI TE FECERIT SECURUM. See tit. Pone.
SIDE-BAR Rules. See tit. Rules and Orders.
SIGNING PLEAS. See tit. Pleas and Pleading.
SIMILITER.
striking out, and demurring, 678,
want of, amendable. 835, 6.
SINGLE DAMAGES. See tit. Damages.
SOLDIERS, Arrest of. 177.
place of life-guardsman saleable under the lords* act. 968.
SOLVIT AD DIEM,
plea of, must be dehvered. 507. 621, 2.
need not be signed. 621, 2.
evidence on. 20, 1.
SOLVIT
INDEX.
SOLVIT POST DIEM,
when it must be pleaded. 20.
SON ASSAULT DEMESNE,
must be pleaded. 597.
plea of, need not be signed or filed. 621, 2.
new-assignment on. 640, 1.
issue on, by whom made up. 666.
SOUTH-SEA-HOUSE, Books of, inspecting. 539.
SPECIAL CASE,
what, and how drawn. 808, 9.
arguing, and amending. 460. 809, 10.
costs on. 810, 11.
SPECIAL CAUSES,
when set down for argument. 459. 809, 10
in what order argued. 459, 60.
Jury: See tit. Jury.
costs of. See tit. Costs.
Pleas. See tit. Pleas and Pleading.
Verdict. See tit. Verdict.
STAMP-DUTY,
on articles of clerkship. 39. 43. 46. 49.
rule to produce deed to be stamped. 440. 533.
in what cases the court will set aside an award, for
an improper stamp. 763.
STANNARIES, Error from Court of, in Cormvall. 1059.
STATUTE of LIMITATIONS. See tit. Limitatirm of Ac-
tions.
STATUTES,
of Merton., (20 Hen. III.) c. 1 . Damages, Dower. 799, 800..
Marltberge,{52 //era. III.) c. 6. Costs. 890.
c. 13. Essoin. 716, 17.
c. 16. Da?nages. 709.
c. 23. Ca/iias. 122.
Westminster, l.{3 Ed':v.l.)c. 24. Damages. 799.
Gloucester, (6 Jidiu. I.) c. I . Damages and Co9t»i
799. 864, Sec.
c. 5. Damages. 800. 866, 7.
.4cton-Burncl,{\ 1 Rdrj. I.) De Mercatoribus. 986.
Westminstcr,\\.{\3Edw.\.)^\.2it. 1. c. 5. § 3. Damages.
800. 867.
c. 10. Alipearance. 35. 63.
c. 11. Capias. 122.
c. 18. Elegit. 938. 1029.
c. 24. Original-Writ . 9').
c. 25. Damages. 799.
c. 26. Damages. Id.
STATUTES,
INDEX.
STATUTES,
of Westminster, II. (13 Edw. I.) stat. I.e. 27. Esaoin.7\7 .
c. 30. JVisi-Prms. 715. 766. 806.
c. 31. Billof ExcejUions. 787.
c. 39. Non omittas. 257 .
c. 45. Scire Facias. 798. 990.
1001.
Winton, (13 Edw. I.) stat. 2. c. 1,2. Hue and Cry. 116,
Edward 1. 13. stat. 3. c. 1. De Mercatoribiis . 986.
Edward III. 4. c. 7. Ires/iass by Executors. 819.
14. stat. 1. c. 6. Amendment. 660. 1127.
25. stat. 4. c. 3. Forestalling. 466.
c. 17. Capias. 122.
c. 19. A7?75's Debtors. 299.
27. stat. 2. c. 9. Statute-Staple. 986.
28. c. 11. i/we a72f/ C/-i/. 116.
31. c. \2. Error, Exchequer. 1133.
Il./Mn/.716.
9. Damages. 799.
8. Forcible-Entry. 891.
2. Ve7iue. 543.
8. Damages. 799,
11. Damage's. 800. 865. 902.
8. Damages. 799.
c. 18. Attomics, Fenue. 35. 544.
1. c. 4. Attornies, Undersheriffs . 269.
c. 5. Additions. 582.
2. stat. I.e. 2. Certiorari, Bail. 331 (^).
9. stat. I.e. 4. Atnendment. 660.
c. 3. Amendment. Id.
1. Me7nbers of Convocation. 171.
9. Damages. 800.
12. Amendment. 66. 104. 660.
15. Amendment. 642.
9. 5az7, Sheriffs. 33. 132. 194. 199
Attornies. o5.
Henry Yll. 2. c. 10. Costs, Error. 890. 1131.
11. c. 12. Co.s?s, Paupers. 68, 9.
19. c. 9. Ca/iffls. 122.
c. 20. C'osCc', ..fin-or, 891. 1131.
//f«?'2/VIII.6. c. 4. Writ oj" Proclamation. 128.
7. c. 3. Limitation of Actions. 14.
c. 4. Cosrs. 190.
21. c. 13. § 26. .Yo?i-Rcsidence. 467.
STATUTES-
42. c.
Richard II. 1. c.
5. c.
6. e.
Henry IV. I.e.
2. e.
4. e.
Henry V.
Henry VI.
4.
8. c.
c.
c.
e.
23. c.
33. c.
INDEX.
STATUTES,
of Henry VIII.
Edward W.
PhUifi Sc Marij.
Elizabeth.
21. c. 19. § 3. Coats. 896, 7.
23. c. 6. Recognisances. 952. 979. 985.
987, 8.
c. 15. § 1, 2. Costs. 413.891,2. 895,
6.
24. c. 8. Costs. 898.
32. c. 5. Execution. 942. 951.
c. 21. TmutyTcrm, Dies-Juridicus.
87. 98.
c. 30. Jeofails. 661. 829. 833, 4, 5.
839.
33. c. 39. King's Debt. 944. 948.
34 8c 35. c. 26. § 113. Wales, Error.
1059.
35. c. 6. § 6,7, 8. Tales. 771. 783.
2 8c 3. c. 13. Costs, Error. 866. 868.
1080.
3 Sc 4. c. 3. § 4. Damages. 799.
1 8c 2. c. 12. Costs. 866.
4 8c 5.C. 7. Talcs. 771. 783.
5. c. 4. § 31. Costs. 866.
c. 9. § 12. Witnesses. 7 oS.
c. 25. Ta/^-s. 771.
8.C. 2. Declaration. 362.
c. 12. § 1, 2. Costs. 896.
13. c. 29. C'o«?«rt72Ce. 578.
14. c. 9. Tales. 771.
18. c. 5. Comfiounding Pe7ial-Jctw?is,
Infants, Coats. 70. 500. 898.
c. 14. Original- Writ, Jeofails. 102.
832.834. 837, 8.
27. c. 4. § 7, 8. Statutes-Merchant and
Stajile. 986.
c. 5. Deinurrer. 648.
c. 8. £rror. 1089, 90. 1068.
10. Costs. 500. 898.
13. Hue and Cry. 116. 118.
29. c. 4. Poundage. 978,9.
31. c. 3. § 1. IFrit of Proclamation.
128.
§ 3. Bail on Outlanvry. 140.
142.
c. 5. § 5. Limitation of Actions. 13.
4 3. c. 2. ^ 19. Damages, Costs. 518.
615. 903.
STATUTES;
INDEX.
STATUTES,
of Elizabeth.
James I.
Charles I.
Charles II.
43. c. 5. Habeas-Corfius. 338.
C. 6. Costs. 592. 870.
3. c. 7. § 1. Costs. 276.
§ 2. Attornies. 35. 54.
c. 8. Bail in Error. 998. 1075.
1080, 1, 2. 1085.
c. 15. § 4. Co5/s. 871, 2. 874,5.
4.C. 3. Costs. 895.
7.C. 5. Cos/s. 903,4.
21. c. 4. Penal- Actions. 46 7.
c. 12. § 5. ^enwe. 374.
■31. c. 13. Jeofails. 833. 836, 7, 8.
c. 16. ^ J. Limitation of Actions. 15.
§ 6. Cos/«. 878.
c. 19. § 9. Bankrupts. 853.
c. 23. Habeas-Corfius. 338,9, 40.
c. 24. Execution, 958.
c. 26. § 2. Personating Bail. 228, 9.
3. c. 4. § 4: . Bail in Error . 1075.
16, c. 6. Michaelmas-Term. 98.
13. Stat. 2. c. 2. § 2. Ac-etiam. 81.
§ 3. JVon-firos, Costa.
412. 897.
§ 4. Outlawry. 132.
§ 5. Prisoners. 303.
§ 6, 7. Teste and Return
of Writs. 93. 722.
956.994.
§ 9. 5a?7 in Error. 998.
1080.
§ 10. Cos;*. 1134.
16 & 17. c. 8. § 1, 2. Jeofails. 833.
835. 839, 40. 863.
§ 3. Bailin Error. 998,
1081, 2.
17. c. 7. Replevin, Costs. 517. 798 (/i).
843. 891. 911.
c. 8. § 1. Judgments. 847, 8. 1024.
1027.
§ 2. Administrator de bonis non.
1031.
22 & 23. c. 4. Bail in Error. 1080.
c. 9. Judge's Cerf if cate. Costs.
753. 879, &c.
STATUTES,
INDEX.
STATUTES,
of Charles II. 29. c. 3. § 10. Judgments, Cestui que
trust. 850. 939, 40.
§ 14, 15. Judgments. 856, 7.
§ 16.^"xec«;/on. 850. 914, 15.
§ \ 8. Recognisances. 989.
c. 5. Affidavits, Commissioners. 155.
455.
c. 7. § 6. Sunday. 189, 90.
William 1. c. 27. JFa/c*, ^rro?-. 1059.
& 2£c 3. Sess. I.e. ^5. Damages, Costs. 800.
Mary. 3. c. 14. Heir and Ancestor. 853, &c.
4 Sc 5. c. 4. § 1, 2, 4. ^azV. 217, 18,
19. 229.
c. 18. § 3, 4, 5. Outlawry. 132.
140, 1.
c. 20. § 2, 3. Docketing Judg-
ments. 857, 8, 9.
c. 21. Prisoners. 297 . 309.
c. 23. § 10. Costs. 886.
C. 24.§ \5.Jury. 715.
§ 18. 7a/fs. 784.
5 8c 6. c. 21. §4. Date of Process. 88.
William III. 7 & 8. c. 24. Oa/As, 45.
C. 32. §1. Jury-Process. 718,
19,20.832.
§ 3. 7a/f*, 771. 784.
8 & 9, c, 11. § 1. Costs on Acquittal,
§ 2. Co5?«
§
Costs
Scire-Facias,
800. 867,
900, 1.
on Demurrer.
897. 1134.
in Waste,
&c.
996.
1048.
§4. Cos^s /or JF/z/m/
Tresfiass. 884. 887.
§ 6. Scire-Facias, Judg-
ments. 347. 848.
1025, 6.
§7. Abatement. 849.
1027, 8.
^8. Damages, Suggest io?i
of Breaches, Scire-
facias. 508, 9,
&c. 637 (i). 800,
1. 1012.
STATUTES.
INDEX.
STATUTES,
of rVilliam III. 8 & 9. c. 27. § 3. Error. 1 134.
§ 6. Escape, Fresh-fiursuit .
599.
§ 13. Prisoners. 303.
9 & 10. c. 15. § 1, 2. Arbitration. 744, 5.
763, 4.
c. 25. § 42. Da^e of Process. 88.
10 & ll.c. 14. Limitation, Error. 1064.
11&12.C.9. § 1. Co57s. 870. 879.
§2.y/rrfs; m Wales, and
Co iintieS'Palatine . 150.
12 & 13. c. 2. Jiiiiges. 29.
c. 3. Peers and Members of the
House of Commons . 25.
110, 11.
13.C. 6. § 3. Oaths. 45.
Anne. I.e. 6. EscaJie-lVarrant. 960.
4. c. 16. § 1. Demurrer. 649, 50.
§2. Jeofails. 838. 863.
§3. Warrant of Attorney . 65.
§4, 5, 7. Double-Pleas, Costs.
608, 9. 615, 16.
§6. Venire-Facias, 715.
§8. r?>w. 730, 1, 2.
§ 1 1. Dilatory Pleas. 587.
§ 12. Payment. 1046.
§ 13. Bringing Money into Court.
,484. 511.
§ 17, 19. Limitation of Actions.
17.
§ 20. Bcdl-Bond. 245, 6.
. v ^ §25. Cos^s. 1095.
§ 27. Account. 2.
• 5. c. 18. §4, 6. Registering Judgments,
£cc. 862. 990.
6. c. 26. § 12. Scotland, Error. 1063.
c. 35. § 19. Registeriiig Judgments, Sec.
862. 990.
7. c. \2. Ambassadors. 167, 8, 9.
c. 20. § 18. Registering Judgments, 8cc.
862.990.
8. c. 9. §32, o7.Sfa7n/i-Duty. 39.
c. 14. § 1. Execution. 925, 6.
9.C. \A:. Gaming. 14. 535. 559. 581.
C.20. Mandamus, Quo Warranto. 838, 9,
12. Stat. 2. c. 16. Costs. 866.
STATUTES,
INDEX.
STATUTES,
of George I. 1. stat. 2 c. 5. Riot-Jet. 116. 119,
3. c. 15. § 16, 17. Poundage. 979, 80.
5. c. 13. Jeofails. 833. 1094.
8. c. 25. §1,2. Recognisances. 988.
§ 3. Poundage. 979.
§ 4. Recognisances. 952.
B. c. 25. § 6. Judgments. 857.
9. c. 22. Black-Jet. 116, 17. 119. 284.
12. c. 13. § 9,\O.Jttornei/, Prisoner. 269,70.
c. 29. § 1,2. Process, Jrrest, Bail. 144,
5, 147,3. 150.211, 12. 214. 342.
§ 3. Habea.^ Corjius, 340.
§ 4. Jttornies. 60.
Oeor^c II. 1. c. 14. § \5.Jrreat of Seamen. 176,7, 8,9.
2. c. 22. § 13. Set-off. 602.
c. 23. § 5, 6, 10, 13, 15, 18, 20, 22, 23,
24. Jttornies. 36, 7. 40. 45, 6. 52, 3,
4. 272.
§ 23. Cos/«. 276, 7. 283, 4.
C. 24. Briberxj. 468.
c. 36. § 8. Shiji's articles, Seamen' avjagea.
534.
3. c. 25. § 8, 11, 18, 19. Jur!/. 715. 722.
724. 781, 3.
§ 14. Viezv. 731.
§ 15. Special -Jury. 727.
4. c. 26. Jeofails. 839.
c. 28. § 4. Ejectment for Kon-payment of
Rent. 486, 7,
5. c. 18. § 2. Jttornies, Justices. 269.
c. 27. § 1, 2, 3, 4. Process, Jrrest, Bail.
144. 213, 14.
c. 30. § 5, 7, 9, 13, 23. Bankrupts. 179,
80, 1. 1013. 511.
6. c. 27. § 2. Jttornies. 52.
7. c. 8. Stock-Jobbing. 707.
c. 20. § 1. Ejectment by Mortgagee.
487, 8,
8. c; 6. § 1, \8 . Registering Judgments,&cc.
862. 990.
c. 16. § 4. Hundredors. 1 17, 18.
c. 24. § 4, 5. Sett-off. 602, 3. 606.
11. c. 19. § l4.Jctionfor Use and Occupa-
tion. 607.
STATUTES,
Vol. I|. 4 I
INDEX.
3TATUTES,-
ci George II. il.c. 19. § 21, 22. Cos^s. 891. 903.
c. 22. § Hundredors. 117.
12. c. 13. § 3, 4, 5, 7, 8. jittomies. 36, 7,
45. 90. 280.
c. 28. § 1. Gaming-House. 468.
14. c. 10. Costs. 872. 875.
c. 17. § 1, 2, 3. Judgment as in Case of
JVbnsuit. 449.
§ 4, 5. Notice oj" Trial and Coun-
termand. 519. 695. 697, 8.
18. c. 34. § 1. Gaming-House. 468.
19. c. 37. § 6. Policies of Jssurancc. 532.
§ 7. Bringing Money into Cour:
563
20. c 24. § 6. Prize-Money. 470.
c. 37. § 2. Rule toretum Writs. 253, 4
■22. c 24. Hundredors. 1 17.
c. 46. § 2. to § 15. Attomies., Sessions ^
Clerk of the Peace. 36,
7, 8, 9. 41, 2, 3, 4.
52. 54. 269
§ 34. Execution against Hundre-
dors. 119, 20.
c. 47. Costs. 874.
23. c. 27. Court of Conscience^ Costs. 466.
874.
c. 30. Costs. 874.
c. 33. Costs. Id.
24. c. 18. § 1, 2. Jury. 715. 728.
c. 42. Attomies, Costs. 265. 874.
c. 44. § 1. Xotice of Action. 72, 3.
§ 4. Bringing Money into Court.
564,5
§ 6. Demand of Copy of Warrant
74.
c. 48. Michaelmas-Term. 98.
25. c. 36. Disorderly Houses. 501. 535.
27. c. 17. Marshal. 32.
29. c. 4. § 14. Arrest of Soldiers. 179.
30. c. 3. § 87. Attorney^ Commissioner of
Land-Tax. 269.
c. 8. § 20. Arre.'it of Soldiers. 179.
c. 19. § 75. Attorniesy Costs. 36. 276-
32. c. 6. Costs. 874.
STATUTES,
INDEX.
STATUTES,
of George II. 32. c. 28. § 1, 2, 4, 1 1, 12. Sheriff' s-Ofiicen:.
200, 1, 2. 201., 5, 6, 7. 469.
§ 13, 14, 15, 16, 17. Execution,
Prisoners. 962, &c. 972, Sec.
1016.
c. 58. Quo Warranto., Pleading double.
611.
George III. I. c. 23. Judges. 29.
2, c. 19. § 5. Costs. 903.
9. c. 29. Demolishing Mills, &cc. 1 17.
10. c. 50. Distringas, Issues. 108. 261.
13. c. 51. § 1, 2. Wales. 85. 272.551.
c. 63. § 44. East-Indies, Mandamus.
741, 2.
c. 78. § 79. Highway -Jet, Bringing mo-
ney into Court. 564 (y).
c. 84. § 81. Turn}iike-Act^,Bringing mo-
ney into Court. Id.
16. c. 34. hisuring Lottery-Tickets. 469.
17. c 26. .Annuities. 445. 983.
19. c. 68. § 24. Attornies, Court of Con-
science. 265.
c. 70. Inferior-Courts, Arrest, Bail, Ha-
bcas-Cor/ius, Execution, Error.
144. 332. 340, 1, 2,3. 998.
1009. 1075. 1140.
23. c. 28. § 2. Ireland, Error. 1063.
c. 70. § 30, 33, 34. Excise-Officers, A'o-
tice of Action, Venue, Bringing
Money into Court. Costs. 73,
4. 374. 564. 903.
24. Sess. 2. c. 47. § 35. Custom-House Offi-
cers, Venue, Bringing Money
into Court, Costs. 73. 374.
564. 903.
25. c. 80. § 1, 5, 7, 8, 9. Certifcatcs of
Attornies. 49. 51.
§ 13, Sec. Memorandum of War-
rant. 6-6, 7. 216.
26. c. 44. Execution, Prisoners. 962. 972.
C. 77. § 13. Customs arid Excise. 468.
28. c. 37. § 23. Customs and Excise, Limi-
tation of Actions. 22.
'M. c. 32. § 22. Romari Catholics. 45.
32. c. 33. § 22. Arrest of Seamen. 176. 179.
STATUTES,
INDEX.
STATUTES,
oi George III. 33. c. 5. § 4, 5. Execution^ Pri&oiiers. 962,
4, 5. 968. 972.
c. 68. Execution. 1009.
34. c. 14. § 1. to § 8. Stawp-Duty. 39, 40. 43,
4, 5.52.
c. 58. Execution. 1139,40.
c. 69. Insolvent-Debtors. 486. 962. 978.
1016.
36. c. 9. Ihmdredors. 117.
C.104. § 38. Lotteries. 468, 9,
37. c. 33. § 63. Arrest of Soldiers. 177, 8.
c. 45. § 9. Bank-Jet. 161.
c. 85. § 3,4. Prisoners^ Allowance. 969.
c. 90. § 26, &c. Attornies-Certificates,
iP'c. 51.50.
c. 91. § 8. Bank-Act. 161.
c. 93. Attornies' Certifcates, Indemnity.
52.
c. 112. Insolvent -Act. 962.
38. c. 1. § 8. Bank-Act. 161.
c. 52. § I. County-Palatine, Trial. 673, 4.
39. c. 50. Lords'-Act. 962.
39 Sc 40. c. 67. art. 4. Peers, Privilege from
Arrest. 170,
c. 72. Attornies' Certificates, Indemnity. 52.
c. 104. § \0. Attornies, Court of Requests.
265. 873.
•21. c. 24. Demolishing Mills, 8cc. 117.
c. 70. Insolvent Act. 962 (^).
43. c. 18. Bank-act. 164.
c. 46. § 1. Arrest, Costs. 187.
§ 2. Arrest., Bail, CostSj Deftosit^
Motions, Sheriff. 200, Sec.
§ 3. Arrest, Costs, Execution, Mo-
tions. 440.442.
§ 4. Costs, Motions. 442. 879.
§ 5. Execution, Poundage. 911.
§ 6. Bail, Supersedeas 233.
STATUTES-Merchant. 985, 6.
Staple: 945. 986,7.
recognisances in nature of. 987, 8.
from what time they bind the land ;
at common-law. 989.
by the statute of frauds. Id.
Tjegistering in Middlesex and Yorkshire. 862.9J)fr.
STAYING
INDEX.
STAYING PROCEEDINGS,
motion and rule for, when and how made 440, 1. 454.
OQ the last day of term. 452.
in actions on bail-bonds. 138, 9. 440, 1. 452.
attornies' bills, in C. P. 286 (c).
where the debt sued for is under 40s. 440, 1. 465.
in penal-actions. 466, 7.
actions brought contrary to good faith. 470.
without proper authority. Id.
pending writ of error. 470, &:c.
till security be given for costs. 476, 7, 8cc.
payment of costs of former action. 479, 80.
on payment of debt and costs: 480, 1.
in assumpsit, on bill of exchange. 482.
penal-actions. Id. 483.
debt on bond; 484, &c.
for performance of covenants. 482.
payment of money. Id. 484.
an annuity, or money by
instalments. 485.
recognisance. 483. 996.
ejectment, for non-payment of rent. 486, 7.
by mortgagee. 487, 8.
actions for general damages. 488, 9.
of replevin. Id.
trover. 489, 90.
difference between setting aside, and staying proceedings.
435.
STIPULATED DAMAGES, Arrest for. 159.
STOCK-JOBBING-ACT,
cannot be pleaded with non assumpsit. 609 (;).
STRIKING out COUNTS. See tit. Sufierfmus Counts.
Special-pleadings, and giving general-issue.
See tit. Issues and Trials .
Similiter, and demurring. See same titles.
SUBMISSION to Arbitration. See tit. .Arbitration.
SUBPOENA; See tit. IVitnesscs.
in the exchequer. 62 (a),
on a writ of inquiry. 522.
attachment for disobeying: 722, 3. 437. 738,9.
should be moved for as soon as possible. 738, 9.
SUGGESTIONS, for costs. See tit. Costs.
on the Stat. 13 Geo. III. c. 51. § 1,2. 272. 551.
of breaches, on the stat. 8 Sc 9 JV. III. c. II. § 8. 508, v,
&C. 1012.
when necessary. 511.-
practice on. 512.
SUGGES-
INDEX.
SUGGESTIONS,
for awarding -y^MzV*? out of common course. 549. 552. 673,
of deaths, &c. 675. 849. 1028. 4, 5.
SUMMONS,
on scire facias. 1037.
SUMMONS and ORDER,
practice by. 463, 4.
for time to plead, &c. 426, 7.
further time. 430.
taxing bill of costs. 285, 6,
service of. 47, 8.
attendance on. 57.
how far a stay of proceedings. 427.
SUMMONS and SEVERANCE. 1054,5. 1109.
SUNDAY,
how it affects the beginning or ending of terms. 98, 9.
return -clays on. 100.
executing process on. 189, &C. 193. 438. 190.
when accounted a day inlegal proceedings. 431.520.625,6.
■when not. 433. 813.
inquiry cannot be executed on. 521.
SUPERFLUOUS COUNTS,
or matter, striking out. 441. 558, 9, 60.
SUPERSEDEAS,
when granted to a certiorari. 335.
arrest after. 1 86, 7.
upon outlawry. 130. 132. 139. 143.
to the sheriff, 5cc. 323. Sec
on justifying bail in vacation, '^oo.
cannot be pleaded to an action on judgment. 328.
of execution. See tit. £rror.
SURPLUSAGE. 405. 619. 827, 8.
SUR-REBUTTERS. See tit. Pleas and Pleading.
SUR-REJOINDERS. See same title.
SURRENDER,
in discharge of bail. See tit. Bail and Prisoners.
SURVIVORSHIP,
scire facias when necessary on. 1027, &c.
SWEARING JURY. See tit. Jury.
T.
■«
TALES. See tit. Jury.
TAXATION; See tit. Cosfs.
costs of. 280. 286.
TENANTS
INDEX.
TENANTS in Common. 2. 580.
TENDER,
in bank-notes, negativing in affidavit to hold to bail. 161.
164.
when it may be made. 293, 4. 569.
must be pleaded in assumpsit. 593.
debt on simple contract. 594.
bond. 596.
in what time it must be pleaded. 418, 19.
cannot be pleaded with non-assumfisit, or non est/ac'wn, to
the whole declaration. 609.
mode of concluding plea of. 62 1 .
paying money into court on: 566.
judgment may be signed forwantof. 507. 566.
taking money out of court on. 566. .
TENOR of Record, certifying. 689. 69 1, 2,
TERM,
what may be moved on the last day of. 452, 3.
TERMS and RETURNS; 97, &c.
issuable. 99.
TERMS for YEARS; See tit. Leases.
may be extended or sold on elegit. 940,
TERMS-NOTICE. See tit. Triala and Imjuinf.
fERTENANTS,
what. 1032 (rf).
scire facias against; 1034.
in ejectment. 1003 («),
error, to reverse a fine or recovery. 1034.
TESTATUM WRITS. See Ca. sa. Fieri facias, and Pracess.
rESTE and RETURN,
of bill of Middlesex or latitat, Sec 84, &c.
original writ. 97. 100, 1, 2. 275, 6.
process by origmal: 100. 124.
against peers, &c. 113.
bill against peers, Sec. 115.
writ o£ exigi facias. 128.
proclamation. /J. 129.
jury -process. 721, 2.
fieri facias. 913, 14.
alias and filnries, &c. 931.
extent for the king's debt. 946, Sec
caf lias ad satisfaciendum: 955, 6.
to charge bail. 994.
scire facias. 1036. 1039, 40. 1101, 2.
writ of error. 1064. 106*^
'■^rtiorari. 1 1 10, 1 !.
TIME
INDEX.
TIP«1E for Pieading. See tit. Pleas and Pleading.
TITLE,
of affidavits. 155, 6. 450, 1.
declaration; 366, &c.
in scire facias. 1042.
issue. 667. 672.
when necessary to be specially shewn in pleading. ^3, 4.
398,9
how set forth. 394, 5.
may be given in evidence under the general issue in tres-
pass. 597.
defectively set forth, aided by verdict. 826. 7.
aliter of a defective title. Id.
TOLL, disturbance of. 396 {g).
TORTS. 5, 6, 7. 151. 805 (v). and see tit. Wrongs.
TRANSCRIPT, 1088, &c.
in what cases amendable. 663, 4.
money. 1091.
diminution contrary to, not allowed. 1 104 (rf).
TRAVERSE. See tit. Pleas and Pleading.
TREBLE COSTS. See tit. Costs.
TRESPASS,
action of; 7. 10, 11. 151. 374.
limitation of. 15.
declaration in, to personal property. 397, 8.
staying proceedings in. 489.
will not lie against sheriff, for selling goods after bank-
ruptcy. 923.
maintainable by sheriff, for goods taken in execution. 925.
declaration in. 376. 390, 1. 414.
pleas in; 597,
when to be delivered. 622.
issues in, on son assault, by whom made up. 666.
verdict in, on several counts. 803.
judgment in. 842.
daniages in, when some defendants are acquitted. 803, 4.
costs in; See tit. Costs.
on double pleading. 6 1 3 ,Scc.
execution in. 911.
TRIALS, by the Record. See tit. J\''ul-tiei-record,
country,
at bar; 766.
history of. Id.
injwhat cases granted, and in what not.
Id. 767, 8cc.
in London. 769,
TRIALS,
INDEX.
TRIALS, by the country,
at bar;
in a county-palatine. 769.
motion for, when made. 439. 442. 769.
notice of. 770.
entering cause. Id.
jury, special: 771.
of what county. Id. (Ji).
notice to. Id.
process: Id.
tales. Id.
new trial after. Id. 816.
costs of. See tit. Costa.
at nisi firius; 7&6. 772.
in what county: 673, 4. 772.
where an impartial trial cannot be had. 439.
442. 548, 9. 673. 772.
where the \enue is laid in the county of a
city or town-corporate. 673, 4,
notice of; 693.
where given, 55.
to whom. Id. 693.
in what manner: 694.
where there are several defendants, &c.
time allowed for; Id.
in London and Middlesex. 695, 6.
country causes. 695.
where defendant changes his residence.
694.
on an old issue: 696.
terms-notice. Id.
on paper-book, when it shall serve for the
general-issue. 693, 4.
notice of inquiry. Id.
short-notice. 428, 9. 697.
countermand. 55. 697, 8.
continuance. 698.
new notice, when necessary. 699.
costs for not proceeding to. 441. 699.
by firoviso;
when it may be had:
in civil cases. 700.
criminal cases, /d. 70 1 .
inilefor. 701, 2.
TRIALS,
Vol, II. 4 K .
^ INDEX.
TRIALS, by the country,
at nisi firius;
by proviso;
notice of. 702.
jury -process. 72 1 .
in error. 1 122.
putting off, for the absence of witness; 708, 9,
motion for, when made. 441. 708, 9.
affidavit. 708, 9.
other causes of. 710. 740.
when it cannot be put off. 710.
entering cause for ;
in London and Middlesex. 772, 3.
at the assizes. Id.
order of. Id.
effect of saving point at. 818.
remanets. 773, 4.
special-jury causes: 774.
cannot be tried in term. 730.
of issues of fact in error. 1 122.
TRIERS. 780, 1.
TROVER,
action of; 6. 10. 398.
limitation of. 15.
declaration in. 398.
arrest in. 150, 1. 160.
staying proceedings in. 489, 90.
pleas in. 598.
evidence in. 736.
costs in. See tit. Costs.
maintainable by sheriff, for goods taken in execution. 925.
against sheriff, for selling goods after notice
of act of bankruptcy. 923.
TRUSTEES,
set-off in actions by or against. 605.
not personally liable on submission to arbitration. 759 (i).
judgments and executions affecting, or not. 850. 923.
TURNPIKE-ACTS,
bringing money into court under. 564 (/).
VARIANCE,
INDEX.
V.
VARIANCE,
of writ from plaint, no objection to removal of cause by
fione or recordari, 8cc. 358.
declaration from process, when material and when not.
242 (/O. 375, &c. 403, 4.
writ of error from the record: 1057.
in what cases amendable. 1094, 5.
plea in abatement of. 404. 581, 2.
VENDITIONI EXPONAS. 130. 934.
VENIRE FACIAS; See tit. Jury-firocess.
ad resfiondendum^ in the exchequer. 62 (a).
triandum;
award of. See tit. Issue,
denovo: 718. 791. 794. 802, 807. 814.
in what cases grantable. 829, 30, 1, 2,
tarn ad (riandum, guarn ad inquirendum . 670. 802, 3.
VENUE,
local or transitory. 369.
with regard to matters arising abroad. 370. 372.
in an action upon a lease for rent, &c. 372, 3.
in what actions it must be laid in a particular county. 575, 4 .
in actions by or against attornies, &c. 264. 550.
original. 375.
in the margin, will help but not hurt. Id.
when necessary to be alleged in pleading. 372 (r). 581.
1021. 1121.
defect of, when aided. 834, 5.
on the removal of a cause by habeas cor/ius. 35 1.
in scire facias. 1035.
history of changing. 543.
in what cases it may be changed;
by plaintiff. 545. 652 (uj.
defendant:
generally. 545.
on a special ground. 548, 9. 548.
where an impartial trial cannot be had. Id.
by consent. 549. 551.
into a county-palatine. 551, 2.
in what cases it cannot be changed;
where the cause of action arises out of the realm. 546.
in two counties. Id.
in debt on bond, or other specialty. Id. 547.
award. 546 (a).
VENUE,
INDEX.
VENUE,
in what cases it cannot be changed;
in action on promissory note or bill of exchange. 547.
for scajidalum magnatum. Id.
libel. Id. but see 548.
escape or false-return. 548.
infringing a patent. Id.
against a carrier or lighterman. Id.
where an innpartial trial cannot be had. 549.
by reason of the plaintiff's privilege. 550,
into a northern county, &c. 549, 50.
Wales or Berwick upon Tweed. 551, 2.
the next English, or an adjoining county. Id,
motion for changing; 441. 552.
when made. 552, 3.
affidavit in support of. 553.
bringing back;
grounds of. 553, 4.
undertaking to give material evidence. 554, 5.
' motion for, when made. 438. 555, 6.
when laid in the county of a city or town-corporate. 673,4-
VERDICTS,
general. 798.
special; 806, &c.
origin of. 806,
how drawn. 807.
moving for judgment, and arguing. 808.
motion to set aside. 439. 442.
void, and set aside, on what grounds. 837, 8.
amendment of, 661, 2. 807.
in trespass, on several counts. 803.
contrary or concurring, new trials after. 816,
to stand as a security, on a new ti'ial for excessive dama*
ges. 819,
what defects are aided by, at common law, 405, 6, 826, Sec.
will aid a title defectively set out, but not a defective title-
826,7,
death of parties after, when aided. 847, 8,
VIEW; See tit. Jury.
full costs after. 883.
VOIRE-DIRE. 78 L
UMPIRE.
INDEX.
U.
UMPIRE. 750.
UNDER-SHERIFF,
his duty. 200, &c.
cannot act as an attorney. 269.
punishable for misbehaviour. 33, 4.
UNDERTAKING,
to appear. 213 (u).
pay money, on compounding ^.qui-tam action. 502.
debt of third person, delivering copy of. 532, 3.
give material evidence. 554, 5.
proceed to trial peremptorily. See tit. Judgment as in
Case of JVonsuit.
pay costs on taxation. 285.
UNDERWRITERS. See tit. Policy of Insurance.
UNICA TAXATIO. 670, 1.
UNIVERSITIES. 575, &c.
USURY,
will avoid warrant of attorney. 491.
statute of, when pleaded or given in evidence. 591. 596.
W.
WAIVER of Irregularity. See tit. Irregularity.
Women. 126. 131.
WAIVING or Withdrawing general-issue. See tit. Demurrers,
and Pleas and Pleading.
Judgments by default. See tit. Judgments.
WALES,
process into. 85.
arrest in. 150.
venue. 272.441 {t).
changing venue to. 551.
pleading to the jurisdiction. 573.
award of jury-process. 674.
trial. 771,2.
judgments. 856 (t/).
costs. 870. 879.
execution. 332, 3. 929.
error from: 1059.
bail in. 1075.
alleging diminution in. 1 104.
WARRANT,
INDEX.
WARRANT, to arrest. 88. 90. 192.
of Attorney, to prosecute or defend;
in writing or by parol. 64.
how long it continues in force. Id.
of filing and entering it. 65.
memorandum or minute of. 66, 7. 81. 216.
need not be paid for, on delivering declaj'ation. 406 {b).
new one required in scire facias. 982, 3.
entry of, on issue-roll. 681.
want of, aided after verdict. 833. 1119.
certiorari for; 1110. 1114, 15.
how directed. 1110 (u).
proceedings thereon. 1111, 12.
to claim Conusance. 577.
confess Judgment;
what. 490, 1.
defeazance must be written on. 491.
in what cases court will order it to be delivered up. 49 1 ,
2.
given by an infant. Id.
executor. Id. 498.
feme-covert. 492.
prisoner: Id.
in what cases an attorney's presence is
necessary. Id. 493, 8cc.
not revocable by the party. 495.
countermanded by death. Id.
when revoked by marriage. 496, 7.
must be strictly pursued. 497.
left with the clerk of the dockets, on signing
judgment. 500.
' judgment on, when and how entered. 438, 9. 497, 8.
not within the statute 8 & 9 W. III. c. 1 1. § 8. 51 1.
against an insolvent-debtor. 1016, 17.
motion for, when necessary, and how made. 438, 9.
498, 9.
at what tirae the defendant should appear to have
been alive. 499.
to acknowledge satisfaction. 981.
for writ of error in parliament. 1065.
WASTE, Damages in. 800.
Costs in. See tit. Costs.
WAY, right of, how stated in pleading. 396 {§).
action for not repairing. 398, 9.
WITH-
INDEX.
WITHDRAWING JUROR; See tit. Jury.
costs on, after paying money into court.
570,
Pleas; See tit. Pleas and Pleading.
on confessing action. 504.
WITNESSES,
privilege of, from arrest. 174, 5.
not privileged, when attending commissioners of bankrupt.
175.
on execution of inquiry. 135.
absence of, good cause against judgment as in case of non-
suit. 706.
expences of. 737.
how sworn on arbitration. 749.
must not be interested in event of suit. 735.
objections to creditor competency of. Id. 818.
mode of procuring their attendance;
by subfiocna ad testificandum: 735.
on trial. 735, 8cc.
inquiry. 522.
what, and how many may be put in one writ. 735-
resealing and serving. Id.
with a duces tecum. Id. 736.
difference between, and notice to produce
deeds, &c. 736 (o).
what must be produced on. Id. («).
service of sub/ioena ticket, and payment of expences.
hy habeas corfius ad testificandum: 739. 737.
when it lies, or not. Id.
mode of obtaining and executing the writ. Id.
proceedings against, for not attending; 738.
by attachment : Id,
against attorney or peer. Id.
affidavit for. /(/.
by special action on the case. Id.
action on 5 KHz. c. 9. § 12. Id.
•when and how examined on interrogatories; 440. 442.
740.
before judge in town. 740, 1.
commissioners in the country, or abroad. Id.
rule or order for examining them ;
when and how obtained. 740.
can only be by consent. Id.
proceedings thereon. /(/. 741.
WORDS,
INDEX, !
WORDS,
action for; 5. i
limitation of. 15. [
declaration in. 392, 3. 400. |
pleas in. 598, 9. i
verdict and judgment in. 1 18.
arrest of judgment in. 831 (x*).
costs in. See tit. Costs.
WRIT,
return and entry of, to avoid statute of limitations. 91, 2. I
not to be sealed in blank. 33 (;). |
motion to quash. 440.
pleas in abatement to. See tit. Pleus and Pleading.
of inquiry. See tit. Inquiry.
for sealing bill of exceptions. 790.
to confess or deny seal. 79 1 .
de executionejiidicii. 1091- ,
WRONGS, I
actions for; 5. j
by and against whom brought. 8, 9.
limitation of. 15.
immediate or consequential. 390, 1, 2.
how stated in declaration. See tit. Declaration.
Y.
YEAR, for scire-faciaSf how computed. 1003.
THE END.
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