counsel has been retained to conduct the cause, or defence, in the court below, an affidavit setting forth the cause or nature of the application. The affidavit, verifying the sheriff's notes, need only state that the paper annexed contains the notes sent by the sheriff to the court and it is not necessary, on applying for a new trial, to state the pleadings in the affidavits; for the writ of trial, like the postea in an action which has been tried before a judge, is assumed to be in court. If the motion be made by counsel engaged at the trial, the court, under special circumstances, will not require the production of the sheriff's notes d: and where they have been delivered to one of the judges, neither party is entitled to them, for the purpose of making a motion for a new trial e. All motions to set aside verdicts obtained in causes tried before sheriffs, or judges of inferior courts of record, pursuant to the above statute, shall come on for hearing as motions in the ordinary course, and not be set down in the new trial paper. The sheriff's notes, however, need not be filed and where they were produced on moving for a new trial, but the rule was drawn up on reading the affidavit only, and not on reading the sheriff's notes, it was holden to be sufficient, in order to save expense; for if that course had not been adopted, the opposite party must have taken office copies of the notes h. In a case tried before the sheriff, the court refused to allow a motion for a new trial, after the fourth day of the term, though the sheriff's notes had not been received until the fifth day, when the motion was made. And where a new trial is moved for, on the under-sheriff's notes, on the ground of the absence of evidence to warrant the verdict of the jury, it is not competent for the other party to use affidavits *. If the under Rep. 270, 71. 1001. Mansfield v. Brearey, 1 Ad. & E. 347. 3 Nev. & M. 471. S. C. Burney v. Mawson, (or Moxal,) 1 Ad. & E. 348. (a.) 3 Nev. & M. 472. (a.) S. C. 4 Moore & S. 484, 5. Grainge v. Shoppee, (or Strapper,) 2 Dowl. Rep. 644. 4 Tyr. Rep. 1000. 8 Leg. Obs. 477. S. C. Thomas v. Edwards, 1 Cromp. M. & R. 382. Muppin v. Gillatt, Dowl. Rep. 190. 10 Leg. Obs. 382. S. C. * Resolution of the Judges, 4 Moore & S. 485. 320. 4 Dowl. Rep. 373. 11 Leg. Obs. 452. S. C. d Barnett v. Glossop, 3 Dowl. Rep. 625. e Vickers v. Cock, 3 Dowl. Rep. 492. f Resolution of the Judges, 4 Moore & S. 485. * Mansfield v. Brearey, 1 Ad. & E. 347. 3 Nev. & M. 471. S. C. Stephens v. Pell, (or Tell,) 2 Dowl. Rep. 629. 2 Cromp. & M. 710. 9 Leg. Obs. 28, 9. S. C. per Parke, B. i Anon. 1 Har. & W. 146. Jones v. Howell, 4 Dowl. Rep. 176; and see Doe d. Johnson v. Baytup, 1 Har. & W. 270. sheriff do not furnish his notes of the trial in proper time, the court will allow further time for making the motion for a new trial. And if they are withheld after the court has required their production, he may be compelled to pay the expenses caused to the parties by their non-production; but he is not answerable for his agent's conduct in withholding them, unless it be shewn that the latter acted under his direction. costs, on 43 Eliz. c. 6. and court If the proceedings are not stayed by the certificate of the Taxing costs, sheriff or judge before whom the trial is had, or by a judge's order for and signing judgment. staying judgment or execution, the plaintiff, we have seen ©, may forthwith tax his costs, sign judgment, and issue execution. And where, upon a trial under the act, the plaintiff having obtained a verdict, got his costs taxed, and signed judgment on the same day, the court held that the judgment was regular 2. A sheriff, or judge of Decisions as to an inferior court, to whom a cause is sent by writ of trial, has no power of certifying, to deprive the plaintiff of costs, pursuant to the of requests' acts. 43 Eliz. c. 6. § 2e and a debt reduced below 40s. by a set-off, on a trial before the under-sheriff, is not within the jurisdiction of the court of requests' acts. But where the plaintiff did not recover 51. in a case within the provisions of the London court of conscience act, (39 & 40 Geo. III. c. civ. § 12.) he was not entitled to costs 8. And a defendant, by consenting to a cause being tried before the sheriff, under the writ of trial act, knowing at the time that he was liable to be sued for the debt in a local court only, does not thereby waive his right to claim costs from the plaintiff, upon his recovering less than 5/h. 5 Dowl. Rep. 74. 12 Leg. Obs. 115, 16. Kidd v. Mason, 8 Dowl. Rep. 85. Shaw v. Oates, 4 Dowl. Rep. 720; and see Post, Chap. XL. Provisions of stat. 1 W. IV. c. 7. extended to judgments and executions upon writs of trial. Motion in arrest of judg ment. Entry of judg ment. 66 66 There is a proviso in the law amendment acta, that "all and every "the provisions contained in the statute made and passed in the first "year of the reign of his present majesty, intituled, 'An act for the more speedy judgment and execution, in actions brought in his majesty's courts of law at Westminster, and in the court of Common "Pleas of the county palatine of Lancaster, and for amending the law "as to judgment on a cognovit actionem, in cases of bankruptcy b,' "shall, so far as the same are applicable thereto, be extended and applied to judgments and executions upon writs for the trials of issues, "in like manner as if the same were expressly re-enacted therein." And upon this proviso, the court will, in the next term, entertain a motion to vacate and arrest a judgment signed in vacation ©. In entering judgment on the roll, after trial before the sheriff, &c. the issue is first copied; after which the entry proceeds with the sheriff's return to the writ of trial, (copying it,) and concludes with the judgment of the court, whether it be for the plaintiff on a verdict, or for the defendant on a verdict or nonsuit. The form of a judgment for the plaintiff, is given in the schedule annexed to the statutory rules of pleading a; and may be easily applied to other cases. * 3 & 4 W. IV. c. 42. § 19. b Stat. 1 W. IV. c. 7. Ante, 294, 5. с Pyke v. Glendinning, 2 Dowl. Rep. 611. per Patteson, J. d R. Pl. H. 4 W. IV. Sched. No. 8. Append. Post, § 8; and see Append. to Tidd Prac. 9 Ed. 310, 11, 12. CHAP. XXXIV. Of the RECORD of NISI PRIUS, JURY PROCESS, SPECIAL JURIES, and VIEWS. prius, and its contents. THE record of nisi prius contains an entry of the declaration and Record of nisi pleadings, and the issue or issues joined thereon, with the award of the venire facias, as in the issue made up and delivered to the defendant's attorney, or his agent; and is in the nature of a commission to the judges at nisi prius, for the trial of the cause. It formerly began Placita, in K.B. with the placita, or style of the court, of the term issue was joined; and, in the King's Bench, after the award of the venire facias, there was always a second placita, of the term in or after which the cause was trieda: But in the Common Pleas, there was no second placita, where In C. P. the parties went to trial the same term issue was joined, unless on the death or change of a chief justice b. And now, by the form given in Abolished. statutory rules of pleading, the a Append. to Tidd Prac. 9 Ed. Chap. XXXIV. § 1. b Gilb. C. P. 80, 81. 1 Cromp. 3 Ed. 229. 2 Wms. Saund. 5 Ed. 253. (8.); and see Tidd Prac. 9 Ed. 775. R. Pl. H. 4 W. IV. Sched. No. 2. 5 Barn. & Ad. Append. xi. 10 Bing. 473.2 Cromp. & M. 26. Append. post, § 9. And as to the record of nisi prius and d R. Pl. Gen. H. 4 W. IV. reg. 2. 5 After judgment of respondeat ouster. Costs of passing record. Resealing record. Formerly, if there had been a plea in abatement, upon which a respondeat ouster was awarded, and afterwards the defendant had pleaded in chief, it was necessary to enter the plea in abatement and judgment of respondeat 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 prius, the court on that ground arrested the judgment; the record of nisi prius not appearing to be in the same cause. Afterwards, a rule was made in the King's Bench, that for the future, a copy of the plea in chief only should be entered and paid for and agreeably thereto, where the plea in abatement, and judgment of respondeat ouster, were omitted in the plea roll, the court held the omission to be immaterial; particularly as the defendant had accepted and paid for the issued. And now, since the late statutory rule of H. 4 W. IV. reg. 15. ©, it is not necessary to enter upon the nisi prius record, a plea in abatement, and judgment of respondeat ouster thereupon. By the practice of the courts of King's Bench and Exchequer, a plaintiff has not a right to enter and pass his record, immediately after issue joined and notice of trial given, so as to make the defendant pay the costs of it; but it is in the discretion of the master to allow such costs or not, as he thinks fit 8. In causes which stand over from one sitting or assizes to another, the record should be regularly resealed, previously to the sittings or assizes to which they stand over; or in default thereof, the causes cannot be tried h. Teste and return The writ of venire facias juratores, being the first process for conof venire facias, vening a jury, was formerly tested on the first day of the term, in or &c. after which the cause was to be tried; and was made returnable on some day before the trial, being a general return day or day certain, according to the previous proceedings: If in a country cause, the venire by original was made returnable on the last general return day, Anonymous, 7 Mod. 51. Anon. 1 Doberteen v. Chancellor, 1 Ld. Raym. Anonymous, 7 Mod. 51. Anon. 1 d Comb v. Pitt, 3 Bur. 1682; and see e Ante, 446. Pepper v. Whalley, 4 Ad. & E. 90. 5 Nev. & M. 437. 1 Har. & W. 480. 8 M'Kune (or Keen) v. Smith, 2 Meeson & W. 85. 5 Dowl. Rep. 286. S. C. h R. E. 33 Geo. III. R. M. 6 Geo. IV. K. B. Crowder v. Rooke, 2 Wils. 144. C. P.; and see Chandler v. Beswald, 5 Dowl. Rep. 311. Tidd Prac. 9 Ed. 776. |