No. I. 4 & 5 W. 4, c. 62. Judgment and execution not Not to take away power of court to grant a new trial. Service of subpœna on witnesses in any part of England and Wales shall be valid to compel appearance. Expence of attendance on writs of sub. tendered to witnesses. XXVII. Provided always, That the entering up of judgment in any action in the said court of common pleas at Lancaster, and the issuing of execution upon such judgment, shall not be stayed unless the_party intending to apply for such rule as last aforesaid shall, with two sufficient sureties such as the last-mentioned court shall approve of, become bound unto the party for whom such verdict or nonsuit shall have been given or obtained, by recognizance, to be acknowledged in the same court, in such reasonable sum as the same court shall think fit, to make and prosecute such application as aforesaid, and also to satisfy and pay, if such application shall be refused, the debt, or damages and costs adjudged and to be adjudged in consequence of the said verdict or nonsuit, and all costs and damages to be awarded for the delaying of execution thereon. XXVIII. Provided also, That nothing herein contained shall prevent the said court of common pleas at Lancaster from granting any new trial, or setting aside any nonsuit, or entering a nonsuit, or altering a verdict as heretofore. XXIX. That the service of every writ of subpoena hereafter to be issued out of the said court of common pleas at Lancaster, and served upon any person in any part of England or Wales, shall be as valid and effectual in law, and shall entitle the party suing out the same to all and the like remedies, by action or otherwise howsoever, as if the same had been served within the jurisdiction of the said court of common pleas at Lancaster; and in case such person so served shall not appear according to the exigency of such writ, it shall be lawful for the same court or one of the judges thereof, upon oath or affirmation to be taken in open court, or upon an affidavit, of the personal service of such writ, to transmit a certificate of such default, under the hand of one of the judges of the same court, to the court of king's bench in England; and the said lastmentioned court shall and may thereupon proceed against and punish, by attachment or otherwise, according to the course and practice of the same court, the person so having made default, in such and the like manner as they might have done if such person had neglected or refused to appear in obedience to a writ of subpoena issued to compel the attendance of witnesses out of such last-mentioned court. XXX. Provided always, That the said court of king's bench shall not in any case proceed against or punish any person, nor shall any such pœna shall be person be liable to any action, for having made default by not appearing to give evidence in obedience to any writ of subpoena or other process for that purpose issued under the authority of this act, unless it shall be made to appear to the court that a reasonable and sufficient sum of money to defray the expences of coming and attending to give evidence, and of returning from giving such evidence, had been tendered to such person at the time when such writ of subpoena was served upon such person. Where final XXXI. That whenever a plaintiff or defendant in any action or suit judgment shall in which judgment shall be recovered in the said court of common be obtained in pleas at Lancaster shall remove his person or goods or chattels from or the court, and out of the jurisdiction of the said court of common pleas at Lancaster, the person or it shall and may be lawful for any of the superior courts at Westminster, effects cannot be found within upon a certificate from the prothonotary of the said court of common pleas at Lancaster, or his deputy, of the amount of final judgment obtained in any such action, to issue a writ or writs of execution thereupon for the amount of such judgment, and the costs of such writ or writs and certificate, to the sheriff of any county, city, liberty, or place, against the person or persons or goods of the party or parties against whom such final judgment shall have been obtained, in such manner as upon judgments obtained in any of the said courts at Westminster (1). its jurisdiction, any of the superior courts at Westminster may issue execution, &c. (1) Where a defendant after judgment in an action in the common pleas at Lancaster, had removed his person out of the jurisdiction of the county palatine, the court of king's bench on an affidavit of these facts, without showing that he had also removed his goods, ordered a capias ad satisfaciendum to issue under this clause; Lord v. Cross, 4 Nev. & M. 30. But there must be an affidavit that the party has removed his person or his goods, before the court will allow a writ of execution to issue; Duckworth and another, v. Fogg, Excheq. Mich. T., 1835, MS. No. I. c. 62. XXXII. That in case any rule of the said court of common pleas at Lancaster cannot be enforced by reason of the non-residence of any 4 & 5 W. 4, party or parties within the jurisdiction thereof, it shall be lawful, upon a certificate of such rule by the prothonotary of the said court, and an affidavit that by reason of such non-residence such rule cannot be en- If rules of the forced as aforesaid, to make such rule a rule of any one of the said court cannot be courts at Westminster, if such court shall think fit, whereupon such rule enforced, they shall be enforced as a rule of such court. may be made rules of one of the superior courts at Westminster. XXXIII. That all writs issued out of the said court of common pleas Test and date at Lancaster shall be tested in the name of the chief justice of that court, of writs and or, in case of a vacancy of such office, in the name of one of the other returns of exejudges thereof; and that every writ of venire facias juratores, issued out cutions. of the same court, shall bear date on the day next preceding the first commission day of each assizes, unless such commission day shall be on a Monday, and then on the Saturday preceding; and that every writ of habeas corpora juratorum shall bear date on the day of the return of the venire facias juratores; and that all other writs, except writs of exigent and proclamation, shall respectively bear date on the day on which the same shall be issued; and that all writs of execution may, if the party suing out the same shall think fit, be made returnable immediately after the execution thereof. XXXIV. That whenever by any act of parliament, or by or under the Power to adopt authority of any act of parliament, or by any rule or order of any of his rules to be Majesty's superior courts at Westminster, or of any of the judges of the made for the same, any rules, orders, or regulations shall be made for the purpose of superior courts framing, regulating, or amending the proceedings, practice, or pleadings at Westminster. of any of the said superior courts at Westminster, it shall be lawful for the judges of the said court of common pleas at Lancaster, or any two of them, by rule or order to be made in that behalf, to adopt, mutatis mutandis, all or any of such rules, orders, or regulations, or any part or parts thereof, as to the said last-mentioned judges shall seem fit. pre XXXV. That the costs to be from time to time allowed for preparing Costs of pleadings in actions in the said court of common pleas at Lancaster shall paring pleadbe the same as shall be allowed for preparing pleadings of a like descrip- ings. tion in actions in the superior courts at Westminster. XXXVI. That this act shall commence and take effect on the first day Commenceof September one thousand eight hundred and thirty-four. ment of act. SCHEDULE to which this Act refers. No. 1. WRIT OF SUMMONS. WILLIAM the Fourth, et cetera. To C. D. of, et cetera, in the county of Lancaster, greeting: We command you [or as before, or often we have commanded you], that within eight days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in our court of common pleas at Lancaster, in an action on promises [or as the case may be] at the suit of A. B.; and take notice, that in default of your so doing the said A. B. may cause an appearance to be entered for you, and proceed therein to judgment and execution. Witness at Lancaster, the day of Memorandum to be subscribed on the Writ. N. B.-This writ is to be served within four calendar months from the date thereof, including the day of such date, and not afterwards. No. I. 4 & 5 W. 4, c. 62. Indorsement to be made on the Writ before Service thereof. This writ was issued by E. F. of plaintiff or plaintiffs within named. attorney for the agent for G. H. of attorney for the plaintiff or plaintiffs within named. or, This writ was issued in person by the plaintiff or plaintiffs within named who resides or reside at [mention the city, town, or parish, and also the name of the hamlet, street, and number of the house of the plaintiff's residence, if any such.] Indorsement to be made on the Writ after Service thereof. This writ was served by me X.Y. on the and day of on one thousand eight hundred WILLIAM the Fourth, et cetera. To the sheriff of Lancashire, greeting: WE command you, that you omit not by reason of any liberty in your bailiwick, but that you enter the same and distrain upon the goods and chattels of C. D. for the sum of forty shillings, in order to compel his appearance in our court of common pleas at Lancaster, to answer A. B. in a plea of trespass on the case [or debt, as the case may be]; and how you shall execute this our writ you make known to our justices at Lancaster on the day of now next ensuing. Witness at Lancaster, the year of our reign. day of in the Notice to be subscribed to the foregoing Writ. Between A. B. Plaintiff, and Mr. C. D. Take notice, that I have this day distrained upon your goods and chattels in the sum of forty shillings, in consequence of your not having appeared in the said court to answer to the said A. B., according to the exigency of a writ of summons bearing teste on the day of and that in default of your appearance to the present writ within eight days inclusive after the return hereof, the said A. B. will cause an appearance to be entered for you, and proceed No. I. thereon to judgment and execution; or (if the defendant be subject to out- 4 & 5 W. 4, lawry) will cause proceedings to be taken to outlaw you. c. 62. No. 4. WRIT OF CAPIAS. WILLIAM the fourth, et cetera. To the sheriff of Lancashire, or To the coroners of the county of Lancaster, or [as the case may be], greeting: WE command you [or as before, or often we have commanded you], that you omit not by reason of any liberty in your bailiwick, but that you enter the same and take C. D. of if he shall be found in your bailiwick, and him safely keep until he shall have given you bail, or made deposit with you, according to law, in an action on promises [or of debt, et cetera,] at the suit of A. B., or until the said C. D. shall by other lawful means be discharged from your custody: And we do further command you, that on execution hereof you do deliver a copy hereof to the said C. D.: And we do hereby require the said C. D. to take notice, that within eight days after execution hereof on him, inclusive of the day of such execution, he should cause special bail to be put in for him in our court of common pleas at Lancaster to the said action, and that in default of his so doing such proceedings may be had and taken as are mentioned in the warning hereunder written or indorsed hereon: And we do further command you the said sheriff [or coroners, or as the case may be], that immediately after the execution hereof you do return this writ to our said court, together with the manner in which you shall have executed the same, and the day of the execution hereof; or that if the same shall remain unexecuted, then that you do so return the same at the expiration of four calendar months from the date hereof, or sooner, if you shall be thereto required by order of the said court or by any judge thereof. Witness . at Lancaster, the day of in the year of our reign. Memoranda to be subscribed to the Writ. N. B.-This writ is to be executed within four calendar months from the date thereof, including the day of such date, and not afterwards. A Warning to the Defendant. 1. If a defendant being in custody shall be detained on this writ, or if a defendant being arrested thereon shall go to prison for want of bail, the plaintiff may declare against any such defendant on or before the third commission day of the assizes (exclusive of a Sunday) next after such detainer or arrest, and proceed thereon to judgment and execution. 2. If a defendant being arrested on this writ shall have made a deposit of money, according to the statute seventh and eighth of George the fourth, chapter seventy-one, and shall omit to enter a common appearance to the action, the plaintiff will be at liberty to enter a common appearance for the defendant, and proceed thereon to judg ment and execution. 3. If a defendant having given bail on the arrest shall omit to put in special bail, as required, the plaintiff may proceed against the sheriff, or on the bail bond. 4. If a defendant, having been served only with this writ, and not arrested thereon, shall not enter a common appearance within eight days after such service, the plaintiff may enter a common appearance for such defendant, and proceed thereon to judgment and execution. This writ was issued in person by the plaintiff or plaintiffs within named, who resides or reside at [mention the city, town, or parish, and also the name of the hamlet, street, and number of the house of the plaintiff's residence, if any such there be.] No. 5. WRIT OF DETAINER. WILLIAM the Fourth, et cetera. To the sheriff of Lancashire, greeting: WE command you, that you detain C. D. if he shall be found in your custody at the delivery hereof to you, and him safely keep in an action on promises [or of debt, et cetera, as the case may be,] at the suit of A. B. until he shall be lawfully discharged from your custody: And we do further command you, that on receipt hereof you do warn the said C. D. by serving a copy hereof on him, that within eight days after service of such copy, inclusive of the day of such service, he do cause special bail to be put in for him, in our court of common pleas at Lancaster, to the said action; and that in default of his so doing the said A. B. may declare against him on or before the third commission day of the assizes (exclusive of Sunday) next after his detainer, and proceed thereon to to judgment and execution: And we do further command you the said sheriff, that immediately after the service hereof you do return this our writ, or a copy hereof, to our said court, together with the day of the service hereof. Witness day of in the at Lancaster, the year of our reign. N. B.-This writ is to be indorsed in the same manner as the writ of capias, but not to contain the warning on that writ. [For the 5 & 6 W. 4, c. 82, s. 7, giving compensation to lords of liberties and others for the loss of fines consequent upon the abolition of fines and recoveries, see ante, Part IV., Class I.] |