13. Subpæna.

of the clock in

Victoria, by the grace of God, of the united kingdom of Great Britain and Ireland queen, defender of the faith, to W. W. [&c. insert the names of the witnesses), greeting: We command you, and every of you, that all other things set aside, and ceasing every excuse, you and every of you be and appear in your proper persons before our sheriff [or "sheriffs"] of our county of - by noon of the same day, to testify the truth, according to your knowledge, in a certain cause now in our court before us, [or in C. P. “ before our justices," or in Exch."before the barons of our court of Exchequer,"] depending between A. B. plaintiff and C. D. defendant, in an action on promises (or as the action is) on the part of the plaintiff [or "defendant,"] on which our certain writ of trial has been sent by out of our said court, and directed to the said sheriff, under the statute of 3 & 4 Will. 4, c. 42, and then and there in due form of law to be executed before the said sheriff. And this you, norlany of you, shall in nowise omit, under a penalty of every of you of one hundred pounds. Witness (name of chief justice, or in Exchequer, of chief baron,) at Westminster, the

in the year of our reign.

[See 1 Chit. Ar. Pr. 295.]

- day of

14. Indorsement on the Writ of Trial of the Verdict (a). Afterwards, on the (day of trial) day of in the year before me, sheriff of the county of [or "judge of the court of ,"] came as well the within-named plaintiff as the within-named defendant, by their respective attornies within named, (or as the case may be), and the jurors of the jury by me duly summoned, as within commanded, also came, and being duly sworn to try the said issue within mentioned on their oath, said, that [&c. here state the finding of the jury as in other cases on trials at Nisi Prius. See the forms, post, 92, et seq.] The answer of S. S. sheriff.

15. The like, in case a Nonsuit takes place (b).

[Proceed as the above form, but after the words" duly sworn to try the issue within mentioned," proceed as follows:] And were ready to give their verdict in that behalf; but the said A. B. being solemnly called, came not, nor did he further prosecute his said suit against the said C. D.

16. Under-sheriff's Certificate to be indorsed on the Writ of Trial, that Judgment ought to be stayed, &c. (c).

I certify that judgment ought not to be signed in this cause until the within-named defendant shall have had an opportunity to apply to the court for a new trial.

[Signature of the under-sheriff, &c.]

[See 1 Chit. Ar. Pr. 296.].

(a) This form is, for the most part, prescribed by the R. H. 4 W. 4.

(b) This form is prescribed by the R. H. 4 W. 4.

(c) See a form of affidavit, in order

to induce the sheriff to grant this certificate, Chit. Sum. Prac. 358; but which it seems is not absolutely necessary.

B.

V.

17. Summons for staying Judgment, &c. on the Writ.

Let the plaintiff's attorney or agent attend me at my chambers in Rolls' Garden, on the morrow, at of the clock in the

D. to show cause why the judgment, [or " execution on the judgment," on the finding of the jury on the trial of this cause, should not be stayed until the term, or until such day as may be ordered on the hearing of this summons. Dated this A. D. 1839.

B.

V.

day of next

18. Order thereon.

day of. [Judge's name.]

Upon hearing the attornies [or "agents"] on both sides, I do order that the judgment [or" execution on the judgment"] on the D. finding of the jury on the trial of this cause shall be stayed until term. Dated the

the

1839.

day of next

[See 1 Chit. Ar. Pr. 296.]

day of , A. D. [Judge's signature.]

19. Judgment for the Plaintiff after Trial by the Sheriff (a). [Copy the issue, and then proceed as follows:] Afterwards, on the (day of signing judgment) day of in the year -, came the parties aforesaid, by their respective attornies aforesaid, (as the case may be), and the said sheriff, [or" judge," as the case may be], before whom the said issue came on to be tried, hath sent hither the said last-mentioned writ, with an indorsement thereon, which said indorsement is in these words: to wit, [copy the indorsement.] Therefore it is considered, &c. [in the same form as in ordinary cases, see the forms, post, 310.]

20. Execution.

[The same as in ordinary cases, see the forms, post.]

SECTION IV.

PLEAS PUIS DARREIN CONTINUANCE.

1. Plea in Bar, Puis Darrein Continuance (b).

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

On the

-day of

A. D. 1839.

B. And the defendant by his attorney saith, that the plaintiff atsought not further to maintain his aforesaid action against him: BeD. cause he says, that after the last pleading in this action [or if the matter of the defence arose after the issuing of the jury process, say, "after the issuing of the jury process in this action,"] and before this day, to wit, on the day of in the year of our Lord, [here state the subject-matter of the defence]. And this the defendant is ready to

(a) This form is prescribed by R.H. 4 W. 4.

(b) As to the time of pleading this

plea, see Dudden v. Triquet, 4 M. & W. 676; 7 Dowl. 171; S. C. 1 Chit. Ar. Pr. 299.

verify; wherefore he prays judgment, if the plaintiff ought further to maintain his aforesaid action against him, &c.

[See 1 Chit. Ar. Pr. 299.]

[Counsel's signature.]

2. Plea in Abatement of Coverture of Plaintiff, Puis Darrein
Continuance.

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

D.

On the day of , A. D. 1839. And the defendant, by his attorney, prays judgment of the ats said writ of the plaintiff, and that the same may be quashed; be.B. cause he says, that after the last pleading in this action [or if the matter of the defence arose after the issuing of the jury process, say, "after the issuing of the jury process in this action," and before this day, that is to say, on the in the year of our Lord 1839, the plaintiff intermarried with one G. G., who is still living: And this the defendant is ready to verify; wherefore he prays judgment of the writ aforesaid, and that the same may be quashed, &c.

day of

[Counsel's signature.] [See 2 Chit. Ar. Pr. Book 3, Part 2, Ch. 2, s.8.]

3. Affidavit of Truth of Plea Puis Darrein Continuance.

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

A. B. plaintiff v. C. D. defendant. C. D. of the above-named defendant, maketh oath and saith, that the plea hereunto annexed is true in substance and matter of fact, and that the matter thereof arose within eight days next before the (date of plea) day of -, A. D. 1839 (a).

Sworn [&c. (b)]

C. D.

[See 1 Chit. Ar. Pr. 300, 301.]

B.

SECTION V.

AUDITA QUERELA.

[See a form 2 Saund. 137 (e).]

SECTION VI.

JURY.

1. Challenge to the Array.

And now at this day, to wit, on, come as well the plaintiff V. as the defendant, by their respective attornies aforesaid; and the D. jurors of the jury impanelled also come. And hereupon the [defendant] challengeth the array of the said panel: because he saith that [here state the matter of challenge with certainty and precision]: And this he is ready to verify; wherefore he prayeth judgment, and that the said panel may be quashed. [Counsel's signature.]

[See 1 Chit. Ar. Pr. 305.]

(a) See as to this affidavit when the last day of pleading is Sunday, &c., Dudden v. Triquet, 4 M. & W.

676; 7 Dowl. 171; S.C. 1 Chit. Ar. Pr. 299.

(b) See Index, tit. "Jurat."

SECTION VII.

DEMURRER TO EVIDENCE.-BILL OF EXCEPTIONS.

1. Demurrer to Evidence when the Jury are Discharged.

B. 7 Afterwards, that is to say, on the day and at the place within conv.tained, before [&c. proceed as in the postea, post, 92, to the asterisk*, D. and then thus, according to the issue to be tried:] the defendant shows in evidence to the jury aforesaid, to prove and maintain the said issue within joined upon his part, by A. B. a witness duly sworn in that behalf, that [here state the evidence demurred to, a note of which is usually taken at the trial by the associate, and signed by the counsel.] And the plaintiff says that the matter aforesaid, to the jurors aforesaid, in form aforesaid, shown in evidence by the defendant, is not sufficient in law to maintain the said issue on the part of the defendant, and that the plaintiff is not bound by law to answer the same; and this he is ready to verify. Wherefore, for want of sufficient matter in that behalf to the said jury shown in evidence, the plaintiff prays judgment, and that the jury aforesaid may be discharged from giving any verdict upon the said issue, and that his damages by reason of the grievances within complained of may be adjudged to him [&c. or if the demurrer be by defendant, then, for the last sentence beginning" and that his damages, &c." substitute the following, " and that the plaintiff may be barred from having or maintaining his aforesaid action thereof against him, &c."]

D.

[Counsel's signature.]

[See 1 Chit. Ar. Pr. 310.]

2. Joinder by Defendant.

And the defendant, inasmuch as he hath shown in evidence to ats the jury aforesaid sufficient matter to maintain the said last-menB. tioned issue upon his part, and which the defendant is ready to verify, and inasmuch as the plaintiff doth not deny or in any manner answer the said matter, prays judgment, and that the plaintiff, as to the said last-mentioned issue, may be barred from having or maintaining his aforesaid action thereof against him, and that the jury aforesaid may be discharged from giving their verdict upon the said last-mentioned issue, &c. Wherefore let the jury aforesaid be discharged by the court here, by the assent of the parties, from giving any verdict thereupon.

B.

V.

3. Joinder by Plaintiff.

[Counsel's signature.]

And the plaintiff, inasmuch as [&c. as in the last form to the words] prays judgment, and his damages by reason of the trespass D.S[or as the action is] within complained of to be adjudged to him, &c. Whereupon it is told to the jurors aforesaid, that they shall inquire what damages the plaintiff has sustained, as well by reason of the matter by him shown in evidence as aforesaid, as for his costs and charges by him about his suit in this behalf expended, in case judgment shall be given for the plaintiff upon the evidence aforesaid. And the jurors aforesaid, upon their oath aforesaid, thereupon say, that in case judgment shall be given for the plaintiff upon the evidence aforesaid, then they assess the damages of the plaintiff by him sustained, by reason of the matter by him

shown in evidence as aforesaid, over and above his costs and charges by him about his suit in this behalf expended, to £- and for those costs and charges to forty shillings. And thereupon the jury aforesaid, by the assent of the parties, are discharged from giving any further verdict upon the premises.

[Counsel's or Serjeant's signature.]

4. Bill of Exceptions to be tacked to the Record on a Trial at the Assizes. [After the end of the issue and award of venire facias, proceed thus:]— Which said several issues, in manner aforesaid respectively joined between the plaintiff and the defendant, afterwards, at the assizes holden at in and for the county of before sir knight, one of the justices of our lady the queen, of the court of our said lady the queen, before the queen herself, and sir ——, knight, one of the barons of her majesty's court of Exchequer, at Westminster, justices of our said lady the queen assigned to take the assizes in and for the said county of according

came

to the form of the statute in such case made and provided, on on to be tried; at which day, before the said justices, came as well the plaintiff as the defendant by their respective attornies aforesaid; and the jurors of the jury aforesaid, whereof mention is within made, being called, likewise came and were sworn to try the said several issues in manner aforesaid respectively joined. And thereupon to maintain the issue thirdly above joined, the defendant then and there gave in evidence to the jury so impanelled and sworn as aforesaid, that [&c. state the evidence "and that -;"" and further that —," &c.] And thereupon the plaintiff offered to prove that [&c. state the substance of the evidence afterwards objected to and admitted]; whereupon the counsel on the part of the defendant interposed, and insisted that the said evidence so offered to be given by the plaintiff to the jurors aforesaid, was not good or admissible in law upon the issue aforesaid, and prayed the said justices to inform the jurors aforesaid that the said last-mentioned evidence was not good or admissible in law upon the issue aforesaid, and that the issue aforesaid secondly above joined ought to be found for the plaintiff. But the said justices held and affirmed, that the said evidence, so offered to be given by the plaintiff as aforesaid, was good and admissible in law; and thereupon the plaintiff gave in evidence and proved to the jury aforesaid, that [state the evidence objected to]: And the said justices by their direction to the said jury, according to their opinion, left the consideration thereof to the jurors aforesaid; and the jurors aforesaid gave their verdict against the defendant upon the issue last aforesaid. Whereupon the counsel for the defendant, conceiving that by law the matter aforesaid, so as aforesaid given in evidence to the said jurors, by the plaintiff, on the issue aforesaid secondly above joined, was not admissible in law upon the said issue, made their exceptions to the said opinion of the said justices; and inasmuch as the matters aforesaid do not appear by the record of the verdict aforesaid, the counsel on the behalf of the defendant prayed that the said justices would set their hands and seals to this bill of exceptions containing the several matters so proved and given in evidence as aforesaid, according to the form of the statute in such case made and provided; and thereupon the said sir, knight, hath set his hand and seal thereto, according to the form of the statute in such case made and provided, at (the assize town) aforesaid, the day of in the year of the reign of our sovereign lady Queen Victoria.

[See 1 Chit. Ar Pr. 311.]

[Counsel's signature.]