CHAPTER XXIV.

JUDGMENT AS IN CASE OF A NONSUIT.

1. Notice of Motion in order to operate as a Stay of Proceedings (a). In the Q. B. [or " C. P." or " Exch. of Pleas."]

Between A. B. plaintiff and C. D. defendant. Take notice that this honourable court will be moved to-morrow, or as soon after as counsel can be heard, that the like judgment may be entered for the defendant as in the case of a nonsuit, pursuant to the statute in that case made and provided. Dated this To Mr. P. A. plaintiff's attorney

[or "agent."]

day of 1840. D. A. defendant's attorney [or agent."]

[See 2 Chit. Ar. Pr. 1075.]

66

2. Affidavit where Notice of Trial but no Notice of Motion has been given. In the Q. B. [or "C. P." or "Exch. of Pleas."]

D. A. of -, gentleman, attorney for the above-named defendant, maketh oath and saith, that issue was joined in this cause on the day of [as of

term] last, and notice of trial, on the part of the above-named plaintiff, for the sitting in [or "for the sittings after"] the said term [or "for the last assizes holden at, in and for the county of -"], and that the said plaintiff did not proceed to the trial of this cause in pursuance of his said notice. [Here state the costs, if any, incurred by reason of plaintiff's giving notice of trial, and failing to try.] Sworn [&c. as ante, 207.]

[See 2 Chit. Ar. Pr. 1075.]

day of

3. The like, where Notice of Motion has been given. [Proceed us in the preceding form to the end, and then thus:] And this deponent further saith, that he did, on the instant [or "last"] personally serve Mr. P. A., attorney for the plaintiff in this cause, with a true copy of the notice hereto annexed; [or if the notice of motion was not personally served on the attorney, "did on the instant (or last') serve a true copy of the notice hereto annexed (annex it) on Mr. P. A., attorney for the plaintiff in this cause, by leaving the same at the house of the said P. A. in with his clerk (or servant')

there."]

Sworn [&c. ante, 207.]

day of

4. The like, where Notice of Trial has not been served.

D. A.

[Proceed as in either of the forms, supra, Nos. 2, 3, as the case may be, omitting the notice of trial, and stating "that the said plaintiff hath not as yet proceeded to the trial of the said cause."] See 2 Chit. Ar. Pr. 1072 to 1075, as to when notice of trial need not be served.

(a) In the Exch. a two days' notice is requisite, 3 Dowl. 673.

V.

D.

5. Rule Nisi thereon.

the - day of, A. D.

B. Upon reading the affidavit of D. A. it is ordered, that the plaintiff, upon notice of this rule to be given to his attorney, shall upon show cause why the like judgment should not be given for the defendant as in the case of a nonsuit, pursuant to the statute in such case made and provided. Upon the motion of Mr.

By the Court.

B.

V.

D.

6. Rule absolute thereon.

the -day of

in

term

Upon reading the rule made in this cause on

· last past, and the affidavit of D. A., it is ordered, that the like judgment be entered for the defendant as in the case of a nonsuit, pursuant to the statute in such case made and provided. Upon the motion of Mr. By the Court.

[See 2 Chit. Ar. Pr. 1075.]

7. Rule for discharging Rule Nisi, on peremptory undertaking, in Q. B.

B.

V.

or C. P.

Upon reading the rule made in this cause on --, and the affidavit of P. A., and upon the undertaking of the plaintiff to bring D. on the issue in this cause to be tried at the sittings [or "next assizes," &c.] it is ordered that the said rule be discharged; and further time is allowed to the said plaintiff to bring on the issue to be tried, pursuant to his undertaking; and the same is then peremptorily to be brought on to be tried. Upon hearing Mr. for the plaintiff, and Mr. for the defendant.

B.

V.

reading the rule made in this cause of the

day of instant D. [or "last," and the affidavit of P. A. the plaintiff's attorney, and hearing of Mr. of counsel for the defendant, it is ordered that the said rule be discharged, [or "with costs,"] the plaintiff peremptorily undertaking to try this cause at the next sittings for [or "assizes for the county of ——.”] By the Court.

9. Entry of a Stet Processus.

[Proceed as in the entry of an issue, see the form, ante, 43, No. 1, to the end of the award of the venire, and then thus:] At which day come here the parties aforesaid, by their attornies aforesaid; and hereupon it is ordered by the court here, with the consent of the parties aforesaid, that all further proceedings herein be forthwith stayed; and let them be stayed accordingly, &c.

[See 2 Chit. Ar. Pr. 1079.]

10. Affidavit for Judgment as in case of a Nonsuit, after a peremptory undertaking (a).

In the Q. B. [or “ C. P.” or “ Exch. of Pleas."]

term for

Between A. B. plaintiff and C. D. defendant. D. A. of -, attorney for the defendant in this cause, maketh oath and saith, that this honourable court was moved in last judgment as in case of a nonsuit; and upon showing cause, the plaintiff peremptorily undertook to bring on the said cause to be tried at the sittings after the said term [or "at the sittings within this presentterm;"] whereupon the annexed rule was made: And this deponent further saith, that the plaintiff hath not proceeded to the trial of the said issue, in pursuance of his said undertaking. [If a notice of motion has been served, add "And this deponent further saith, that he did on the day of last (or instant') personally serve," [&c. as in form,

ante, 617, No. 3.]
Sworn [&c. ante, 207.]

[See 2 Chit. Ar. Pr. 1078.]

11. Entry of Judgment as in case of a Nonsuit.

D. A.

[Proceed as in an entry of an issue, see the form, ante, 43, No. 1, and after copying the issue &c. to the end of the award of the venire facias, proceed thus:] At which day comes bere the defendant by his said attorney; and the plaintiff, although solemnly called, comes not: And it appearing to the court here, that the plaintiff hath neglected to bring the issue above joined on to be tried, according to the course and practice of the said court; therefore, according to the form of the statute in such case made and provided, it is considered that the plaintiff take nothing by his said writ, but that he be in mercy &c.; and that the defendant do go thereof without day &c. And it is further considered [&c. conclude as in a judgment of nonsuit, ante, 87.]

12. Fi. fa. on Judgment as in Case of a Nonsuit.

[Proceed as in the form, ante, 610, No. 10, except that instead of the words of that form between the asterisks * you insert the following:] For that the said A. B. had neglected to bring a certain issue [or" certain issues"] of fact joined in the said action between the said A. B. and C.D., on to be tried according to the course and practice of the said

court.

(a) The rule on this affidavit is nisi in the first instance.

CHAPTER XXV.

NOLLE PROSEQUI AND RETRAXIT.

1. Entry of Nolle Prosequi to the whole Declaration. [Proceed as in an issue, as in the form, ante, 43, No. 1, to the end of the pleadings, as far as they have gone, and then, on a new line, thus:] And hereupon, on the plaintiff, inasmuch as he cannot deny the matters by the defendant above pleaded, now freely here in court confesses that he will not further prosecute his suit against the defendant. Therefore it is considered [&c. conclude as in a judgment of nonsuit, as in form, ante, 87, No. 3.]

[See 2 Chit. Ar. Pr. 1081.]

2. The like, to a particular Count or Counts (a).

[Proceed as in an issue, as in the form, ante, 43, No. 1, to the end of the pleas; and after replying to the defendant's pleas with respect to the other counts, enter the nolle prosequi thus:] And as to the [third and last] counts of the said declaration, the plaintiff' saith that he will not further prosecute his suit against the defendant in respect of the causes of action in those counts mentioned, or any or either of them; therefore as to the said causes of action in the said [third and last] counts of the said declaration mentioned, let the defendant be acquitted and go thereof without day &c. [The entry of the judgment for costs would be thus: "And whereupon, on it is considered by the court here that the defendant do recover against the plaintiff £--for his costs and charges by him about his defence in this behalf as to the said third and last counts of the said declaration laid out and expended, by the court here adjudged to the defendant, with his assent, according to the form of the statute in such case made and provided." And that the defendant have execution thereof &c. (b)]

3. The like, to a particular Part of the Declaration, to which Defendant pleads, but suffers Judgment by Default as to the rest.

[Proceed as in issue, as in the form, ante, 43, No. 1, to the end of the plea, and then enter the nolle prosequi thus:] And as to the said causes of action in the said declaration mentioned, except as the sum of [£30] parcel of the said several sums of money in the said declaration mentioned, the plaintiff saith that he will not prosecute his suit against the defendant in respect of the causes of action in the said declaration mentioned, or any of them, except as to the said sum of [£30] parcel &c. as

(a) See the form of a judgment by nil dicit as to one count, and nolle prosequi as two others, after a plea in debt on statute, ante, 343, See 2 Chit. Ar. Pr. 1081.

(b) 3 & 4 Will. 4, c. 42, s. 33. If the defendant's costs exceed those of plaintiff, then enter an award of execution for them.

aforesaid; therefore as to those causes of action let the defendant be acquitted and go thereof without day &c. And whereupon on it is considered [&c. state the judgment as to the defendant's costs, as in the preceding form.]

4. The like, as to one of several Defendants.

Proceed as in an issue, as in the form, ante, 43, No. 1, to the end of the plea; and after replying to the pleas of the other defendants, enter the nolle prosequi thus:] And on as to the plea of the defendant E. F. by him above pleaded, the plaintiff saith, that he will not further prosecute his suit against the said E. F.: Therefore let the said E. F. be acquitted of the premises in the said declaration mentioned, and go thereof without day &c: And it is further considered [&c. state the judgment as to the defendant's costs, as in the form, ante, 620, No. 2.]

[See 2 Chit. Ar. Pr. 1082.]

5. Execution for Defendant for the Costs.

Same as usual as in fi. fa., as in form, ante, 201, No. 1, to the ; or as in a ca. sa., as in form, ante, 202, No. 4, to the *, and then thus:] For his costs and charges by him about his defence laid out and expended in a certain action on promises, [or "debt," as the action is,] lately depending in our said court at Westminster, at the suit of the said A. B. against the said C. D., for that the said A. B. hath not further prosecuted that suit in respect of a part of the causes of action in the declaration in that action by the said A. B. alleged against the said C. D."] whereof the said A. B. is convicted &c. [Conclude as in the fi. fu. ante, 201, or as in the ca. sa. ante, 202.]

6. Entry of a Retraxit.

[See the form 2 Sellon, 338. See 2 Chit. Ar. Pr. 1084.]

CHAPTER XXVI.

REMITTITUR DAMNA.

In assumpsit of part damages, after return of inquiry, ante, 331, No. 7.-In assumpsit as to particular counts, ante, 343, No. 8.-In debt, of part of the sum demanded, ante, 321, No. 12.-In replevin, of damages, by defendant, ante, 440, No. 73.-In ejectment, ante, 367, No. 20. And see, generally, 2 Chit. Ar. Pr. 1085.