In the Q. B. V. D. In the Q. B. B. V. D. Until SECTION III. THE REPLICATION, &c. 1. Rule to reply or surrejoin in Q. B. is given to the plaintiff to reply [or "surrejoin," &c.] [See 1 Chit. Ar. Pr. 195.] 2. Entry of such Rule. Entered. is given to the plaintiff to reply [or "surrejoin,"] otherwise let a non-pros be entered. 3. Præcipe for Rule to reply or surrejoin, in C. P. or Exchequer. In the C. P. [or "Exch. of Pleas."] B. V. D. Rule to reply [or "to surrejoin," &c.] D. A. defendant's attorney [or "agent."] 4. Rule to rejoin or rebut, in Q. B. In the Q. B. V. is given to the defendant to rejoin [or "rebut," &c.] Entered. [See 1 Chit. Ar. Pr. 197.] 5. Præcipe for Rule to plead to New Assignment in Q. B. In the Q. B. B. V. D. Rule to plead to new assignment. P. A. plaintiff's attorney [or "agent."] [See 1 Chit. Ar. Pr. 197.] 6. Rule thereon. B. Unless the defendant shall plead to the new assignment within four days, let judgment be entered for the plaintiff. V. D. [See 1 Chit. Ar. Pr. 197.] By the Court. 7. Præcipe for Rule to rejoin or rebut, or plead to new Assignment in C. P. or Exchequer. In the Q. B. [or " C. P." or " Exch. of Pleas."] B. Rule to rejoin, [or "to plead to new assignment," or "to reV. but," &c.] D. P. A. plaintiff's attorney [or "agent."] 8. Term's Notice of Intention to proceed. In the Q. B. [or "C. P." or "Exch. of Pleas."] B.) Take notice, that the defendant [or "plaintiff"] intends to proceed in this cause after the end of the ensuing term, by giving a D. rule to reply, [or "rejoin," &c.] herein. Dated the V. 1839. 66 Your's, &c. day of P. A. plaintiff's [or, D. A. defendant's"] attorney [or "agent."] To Mr. D. A. defendant's [or " P. A. plaintiff's"] attorney [or "agent."] [See 1 Chit. Ar. Pr. 196.] 9. Similiter to Plea concluding to the Country. In the Q. B. [or "C. P." or " Exch. of Pleas."] B. On the day of A. D. 1839. And the plaintiff as to the plea [or "pleas"] of the defendant, by him above pleaded, and whereof he hath put himself upon the D. country, doth the like. 10. Replication to a Plea of Judgment recovered in another Court. [See post, Book II. Part III.] SECTION IV. THE ISSUE, &C. 1. Issue, in an Action commenced by Writ of Summons, Capias, or Detainer (a). In the Q. B. [or "In the C. P." or "In the Exchequer of Pleas."] our Lord 18-. year of (Venue.)-A.B. by E. F. his attorney [or "in his own proper person," or" by E.F. who is admitted by the court here to prosecute for the said A.B., who is an infant within the age of 21 years, as the next friend of the said A.B." as the case may be,] complains of C.D., who has been summoned to answer the said A.B. [or "arrested," or "detained in cus (a) This is the form prescribed for all the courts by R. H. 4 Will. 4, in actions commenced by the process prescribed by the 2 Will. 4, c. 39. It must of course be altered to meet the circumstances of each case. For forms of the issue in an action of ejectment see post, in replevin, post, in scire facias, post. No continuances or imparlances should be entered, see 1 Chit. Ar. Pr. 200. It must be here observed that in actions commenced by summons since 1st Oct. 1838, the issue should state the commencement of the action to have been by writ of summons, even though a writ of capias, under 1 & 2 Vic. c. 110, have been issued in the course of the action. The forms as to writs of capias and detainer are still to be used in actions commenced by those writs before 1st Oct. 1838; and in proceedings under s. 85 of 1 & 2 Vic. c. 110, against insolvents, should such proceedings be carried on to issue, see ante, 26. tody"] by virtue [or "served with a copy," as the case may be] of a writ issued on (date of the first writ) the day of in the year of our Lord 18-, out of the court of our lady the queen, before the queen herself at Westminster," [or "out of the court of our lady the queen, before her justices at Westminster," or "out of the court of our lady the queen before the Barons of her Exchequer at Westminster," as the case may be] (a). For that [&c. Copy the declaration from these words to the end, and the plea and subsequent pleadings, with the dates and counsel's signature (if any) to the joinder of issue, and conclude in the same line, thus:] Thereupon the sheriff is commanded that he cause to come here, on the day of (b), twelve &c., by whom &c., and who neither &c., to recognise &c., because as well &c. 2. Award of Venire where there are several Issues in fact (c). Therefore as well to try this issue, as the said other issue [or "issues"] above joined between the parties aforesaid, the sheriff is commanded [&c. conclude as supra]. 3. The like, where there are several Defendants, who plead separately (c). Therefore as well to try this issue, as the said other issue [or "issues"] above joined between the plaintiff and the said E. F., the sheriff is commanded, [&c. conclude as supra.] 4. Issue, where one of several Defendants has suffered Judgment by Default in an Action on Promises (d). [Commence as in the form, ante, 43, No. 1, and after copying the declaration, the plea, the issue thereon, us there directed, proceed thus:] And the said E.F. in his proper person comes and says nothing in bar or preclusion of the said action of the plaintiff, whereby the said E. F. remains therein undefended against the plaintiff. Wherefore the plaintiff ought to recover against the said E. F. his damages by reason of the premises. But because it is unknown to the court(e) here what damages the (a) The form of the action need not be inserted. (See Ball v. Hamlet, 3 Dowl. 188; C. M. & R. 575, S. C.; Fergusson v. Mitchell, 4 Dowl. 513; 1 Tyr. & G. 179; 1 Gale, 346; 2 C. M. & R. 687, S. C.) But in an action of debt, where the declaration commences with the usual demand of a sum certain, such demand should perhaps be inserted in the commencement of the issue. (b) The form given by the rule of H. T. 4. Will. 4, leaves this space for the return-day of the venire. It seems that although the 3 & 4 Will 4, c. 67, s. 2, allows the venire to be made returnable forthwith, a particular day must be named on which it is returnable, and that it will not be correct to make it returnable "forthwith." (Williams v. Calverly, 14 Legal Obser. 13.) (c) It would seem that the form preceding this would suffice for such a case, and it is most commonly adopted in practice. (d) See the form of the judgment, post. (e) In the Common Pleas it is usual, instead of this word “court," to say "justices," and in the Exchequer to say " barons," but this variation seems wholly unnecessary, and there seems no sound reason why the forms in the respective courts should not be uniform in this respect. In the forms prescribed by the New Rules of H. T. 4 Will. 4, it will be observed that this variation is not adopted. plaintiff hath sustained by reason thereof; and because it is also at present unknown to the court here whether the said C.D. will be convicted of the premises upon which the said issue is above joined between the plaintiff and the said C.D. or not: and because it is convenient and necessary that there be but one taxation of damages in this suit; therefore let such taxation, and the giving of judgment in this behalf against the said E.F., be stayed until the trial or determination of the said issue above joined between the plaintiff and the said C.D. And as well to try the said issue above joined between the plaintiff and the said C. D. as to inquire against the said E.F. what damages the plaintiff hath sustained in this behalf, the sheriff is commanded [&c. conclude as ante, 44, No. 1.] 5. Issue, where Defendant suffers Judgment as to Part in an Action on Promises (a). [Commence as in the form, ante, 43, No. 1; and after copying the declaration and defendant's plea, (which in the case for which this form was drawn was non assumpsit, except as to £30,) proceed thus:] And as to the said sum of £30, parcel of the said several sums of money in the said declaration mentioned, the defendant says nothing in bar or preclusion of the said action of the plaintiff with respect to the said sum of £30, whereby the defendant remains therein undefended against the plaintiff in respect thereof. Wherefore the plaintiff ought to recover against the defendant his damages, on occasion of the not performing the said promises of the defendant with respect to the said sum of £30. But because it is unknown to the court (b) here what damages the plaintiff hath sustained on occasion thereof, and because it is convenient and necessary that there be but one taxation of the damages in this suit, therefore let the giving of judgment in this behalf be stayed until the trial of the said issue above joined between the said parties. And as well to try the said issue as to inquire of and assess the damages which the plaintiff hath sustained by reason of the not performing of the said promises of the defendant with respect to the said sum of £30, parcel of the said several sums of money in the said declaration mentioned, the sheriff is commanded, [&c. conclude as ante, 44, No. 1.] 6. The like, in Debt. [Commence as in the form, ante, 43, No. 1, and after copying the declaration and plea, proceed thus:] And as to the said sum of £30, parcel of the said sum above demanded, the defendant says nothing in bar or preclusion of the said action of the plaintiff, whereby the defendant remains therein undefended against the plaintiff in respect thereof. Wherefore the plaintiff ought to recover against the defendant the said sum of £30, and also his damages which he hath sustained on occasion of the detaining thereof. But because [it is unknown to the court here what damages the plaintiff hath sustained on occasion of the detaining thereof, and be (a) See the form of the judgment, post. (6) In the Common Pleas it is usual, instead of this word "court," to say "justices," and in the Exchequer to say "barons," but this variation seems wholly unnecessary, and there seems no sound reason why the forms in the respective courts should not be uniform in this respect. In the forms prescribed by the new Rules of H. T. 4 Will. 4, it will be observed that this variation is not adopted. cause(a)] it is convenient and necessary that there be but one taxation of the damages in this suit; therefore let the giving of judgment in this behalf be stayed until the trial of the said issue above joined between the said parties. And [as well (a)] to try the said issue [as to inquire of and assess the damages which the plaintiff hath sustained on occasion of the de-. taining of the said sum of £30, parcel of the said sum above demanded (a)] the sheriff is commanded [&c. conclude as ante, 44, No. 1.] 7. The like, in Trespass (b). [Commence as in the form, ante, 43, No. 1, and after copying the declaration and plea, or rejoinder, proceed thus:] And the defendant, as to the residue of the trespasses in the said declaration mentioned, [or "as to the several trespasses above newly assigned,"] says nothing in bar or preclusion of the said action of the plaintiff, whereby the defendant remains therein undefended against the plaintiff in respect thereof. Wherefore the plaintiff ought to recover against the defendant his damages by him sustained on occasion of the said residue of the said trespasses, [or “of the said several trespasses above newly assigned:"] But because it is unknown to the court (c) here what damages the plaintiff hath sustained on occasion thereof; and because it is convenient and necessary that there be but one taxation of damages in this suit; therefore let the giving of judgment in this behalf be stayed, until the trial of the said issue above joined between the parties aforesaid: And as well to try the said issue as to inquire of and assess the damages which the plaintiff hath sustained on occasion of the committing of the said residue of the said trespasses, [or "of the said several trespasses above newly assigned,"] the sheriff is commanded [&c. conclude as ante, 44, No. 1.] 8. Award of Venire, where there are several Issues, one triable by the Country, and another by the Court, on Nul tiel Record. Therefore as well to try this issue (the issue in fact) as to inquire what damages the plaintiff hath sustained on occasion of the premises, whereupon the said other issue is above joined between the parties aforesaid, to be tried by the record, in case the said last-mentioned issue shall happen to be found for the plaintiff, the sheriff is commanded [&c. conclude as unte, 44, No. 1.] 9. Award of Venire, where there are Issues in Law and in Fact, and you intend trying the Issues in Fact first (d). [Commence as in the form, ante, 43, No. 1, and after the entry of all the pleadings, including the demurrer and joinder, proceed with the award of venire thus:] And because it is convenient and necessary that there be but one taxation of damages in this suit; thereupon, [as well (e)] to try the said issue above joined between the said parties, to be tried by the country, [as to inquire what damages the plaintiff hath sustained by occasion of the premises whereof the said parties have put themselves upon the (a) Perhaps as this is a form in debt, the parts between brackets [ ] (relating to the assessment of damages) might be omitted. (b) See a form of judgment, post. (c) See ante, 45, n. (b). (d) This is necessary, Codrington v. Lloyd, 1 Per. & D. 157. (e) Perhaps in debt the parts of this form between brackets may be omitted. |