Motion for, when made, in K. B. seen, apply to trials before the sheriff, under the statute 3 & 4 W. IV. c. 42 b. : In the King's Bench, it had become the practice for counsel, at the close of the fourth day of each term, to insert in a list the names of those cases in which they were instructed to move; which cases they were called upon to move on the following days, in the order of their precedence and it seems that in Easter and Michaelmas terms, in which, on account of the circuits, the number of motions is usually large, the court will still allow that course to be pursued. But in Hilary term 1828, Lord Tenterden, Ch. J. said that the court wished it to be understood, that for the future, in Hilary and Trinity terms, the court would not hear any motion for a new trial, unless such motion were actually made within the first four days of the term ; and that even if counsel were instructed within the first four days, and there should not be time to hear them on the fourth day, the court would not hear them afterwards; and in such cases the parties could only blame themselves for not instructing their counsel sufficiently early d. So, in the Common Pleas, it is a rule, that "in Hilary and Trinity terms, no motion for a new trial shall be heard, unless such motion be actually made within the first four days of each of the said terms." And in general, the motion for a new trial must be made in that court, within the first four days of the term, if the cause be tried in vacation; and cannot be received after the four days, unless where the foundation of the motion is a fact not disclosed to In Exchequer. the party till after that time. In the Exchequer also it is a rule, that motions for new trials must be made within the first four days of terms: and this rule appears, in several recent instances, to have been strictly adhered to 8. But in that court, as in the King's Bench, where a cause is tried at the sittings in term, a motion may be made for a new trial, at any time within four days after the return of the distringas, although more than four days have elapsed since the trial h. And the court will allow further time to make a motion for a new In C. P. trial, if the undersheriff do not furnish his notes of the trial in proper When the rule for a new trial was silent as to costs, the costs of the first trial were not in general allowed in the court of King's Bench, whichever way the verdict might go upon the second trial. In the Common Pleas, the rule was formerly different; for there, if a new trial were granted, and the rule said nothing about costs, if the verdict on the second trial went the same way, the party succeeding was entitled to the costs of both trials, and also, it seems, to the costs of the applicatione; but if the verdict went different ways, the party ultimately succeeding was not entitled to the costs of the first trial d. In the Exchequer, there was a similar distinction. But, by a general rule of all the courts 8, "if a new trial be granted, without any mention of costs in the rule, the costs of the first trial shall not be allowed to the successful party, though he succeed on the second." This rule, however, is not retrospective: therefore, a party, who before the rule had succeeded on two trials, was holden to be still entitled to the costs of both, and to the costs of entering up judgment nunc pro tunc, where the delay had not been occasioned by himself. And the rule applies only to cases where a new trial is granted upon the whole recordh: Therefore where, on the trial of a right of way, in one count claimed as a public, and in another as a private way, a general verdict was found for the defendants, and the court afterwards directed a new trial, expressly by the rule confining it to the right claimed in the second count, but in the rule no mention was made of costs, nor any reservation of the defendant's verdict on the first count, the court held that the defendants were nevertheless enti a Thomas v. Edwards, 2 Dowl. Rep. 664. 4 Tyr. Rep. 835. 1 Cromp. M. & R. 382. S. C. per Parke, B. b Piggott v. Kemp, 2 Dowl. Rep. 20. 6 Leg. Obs. 362. S. C. Tidd Prac. 9 Ed. 916. (e.) ▲ Id. (l.) e Truslove v. Burton, 10 Moore, 96. f Loader v. Thomas, 1 Cromp. & J. 54. 3 Younge & J. 525. S. C.; and see Stuart v. Greenall, 13 Price, 755. Pooley v. Millard, 1 Tyr. Rep. 260. Harrison v. Bennett, 1 Cromp. & M. 203. 2 Tyr. Rep. 8 R. H. 2 W. IV. reg. I. § 64. 3 Carlisle v. Garland, 9 Bing. 85. 2 Costs of first trial, when rule is silent respect ing them. tled to the costs of the issues found for them on the first trial, and not in contest on the second, they having succeeded on such second trial a. Time for moving in arrest of judgment, or for judgment non obstante vere dicto. Costs, on arresting judgment. The motion in arrest of judgment, or for judgment non obstante veredicto, might it seems formerly have been made, in the King's Bench, at any time before judgment was given, though a new trial had been previously moved for c. In the Common Pleas, the motion in arrest of judgment must have been made before or on the appearance day of the return of the habeas corpora juratorum d. In the Exchequer, the motion in arrest of judgment must it seems have been made within the first four days of the next term after the trial; and it could not have been made after an unsuccessful motion for a new triale. And now, by a general rule of all the courts, no motion in arrest of judgment, or for judgment non obstante veredicto, shall be allowed, after the expiration of four days from the time of trial, if there are so many days in term; nor in any case after the expiration of the term, provided the jury process be returnable in the same term." Since the making of this rule, a motion in arrest of judgment, on a cause tried out of term, must be made within the first four days of the term ensuing the trial 8. When judgment is arrested, each party pays his own costs h. But where the plaintiff obtained a verdict in the court of Exchequer, wherein judgment was arrested, which judgment was reversed by the court of Exchequer chamber, it was holden that the plaintiff was entitled to the costs of the motion in arrest of judgment, and that such costs must be taxed by the officer of the court of Exchequer 3. R. H. 2 W. IV. reg. I. § 65. 3 Barn. & Ad. 383. 8 Bing. 297. 2 Cromp. & J. 186. 8 Weston v. Foster, 2 Bing. N. R. 701. 3 Scott, 164. 5 Dowl. Rep. 54. 12 Leg. Obs. 310, 11. S. C. h Gilb. C. P. 272. Tiffin v. Glass, Barnes, 143. Fisher v. Kitchingman, Id. 284. Hul. Costs, 1 Ed. 129; and see Tidd Prac. 9 Ed. 929. Adams v. Meredew, 3 Younge & J. 419. Dax Ex. Pr. 149, 50. S. C. cited. CHAP. XXXIX. Of JUDGMENTS. after verdict or nonsuit, when and how signed, at common law. By stat. I W. AT common law, the jury process being returnable only in term Final judgment time, the final judgment, after verdict or nonsuit, could not have been signed in vacation a. This practice being attended with great inconvenience, was altered by the statute 1 W. IV. c. 7. b by which, we have seen, that "in all cases where the judge before whom the issue is tried shall, in case the plaintiff shall become nonsuit, or a verdict shall be given for the plaintiff or defendant, certify d under his hand, on the back of the record, at any time before the end of the sittings or assizes, that in his opinion execution ought to issue forthwith, or at some day to be named in such certificate, and subject or not to any condition or qualification, and in case of a verdict for the plaintiff, then either for the whole or for any part of the sum found by such verdict, a rule for judgment may be given, costs taxed, and judgment signed forthwith, and execution may be issued forthwith or afterwards, according to the terms of such certificate, on any day in vacation or term: Provided always, that it shall be lawful for the party entitled to such judgment, to postpone the signing thereof." By the above statute f, "every judgment, to be signed by virtue "of that act, may be entered and recorded as the judgment of the "court wherein the action shall be depending, although the court may "not be sitting on the day of the signing thereof; and every execu"tion issued by virtue of that act, shall and may bear teste on the day "of issuing thereofh; and such judgment and execution shall be as Tidd Prac. 9 Ed. 930. $ 2. с Ante, 535. d For the form of the certificate, see Append. to Tidd Sup. 1833. p. 321. As to the rule for judgment, see Tidd Prac. 9 Ed. 903. Ante, 294, 5. 588. f Stat. 1 W. IV. c. 7. § 3. As to the entry of judgments, see And see stat. 3 & 4 W. IV. c. 67. § Entering and recording judg ment. NN on. "valid and effectual, as if the same had been signed, and recorded, "and issued, according to the course of the common law." Before the passing of this act, the allegation of a judgment signed out of term would have been erroneous on the face of it; but now, the court will take notice that a judgment may be signed in vacation, Decisions there- under the statute a. And it has been determined, that in declaring on a judgment signed in vacation, on certificate by the judge at nisi prius for immediate execution under the above statute, the day of signing judgment should be stated according to the fact, and not laid as of the preceding term b: but it is enough to set out the judgment as it appears upon the record, and the certificate need not be stated b. The postea however, in such a case, should be so framed that the judgment may appear to be warranted by the previous finding of the jury b. But where, on nul tiel record pleaded to debt on recognizance of bail, the postea shewn to the court proved erroneous in this respect, leave was given to amend it; the defendants also having leave to plead de novo b. Entry of judgment after verdict, or nonsuit. Form of, in assumpsit, &c. Against heirs. The entry of final judgment, after verdict or nonsuit, begins with a copy of the issue, to the end of the award of the venire facias; after which it proceeds with the jurata, as in the record of nisi prius: It then states the return of that record by the chief justice, or justices of assize, with the postea indorsed thereon, 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 in assumpsit is given in the schedule annexed to the late statutory rules, and may be readily applied to the judgment in other actions d. The judgment against an heir, on the bond of his ancestor, is general or speciale: In debt against an heir, who pleaded riens per discent, or any other plea which was false within his own knowledge, and found against him, the judgment at common law was general, to recover the debt, and not special, to be levied of the lands descended f. So, if judgment be given against an heir by nihil dicit, or verdict, &c. see Tidd Prac. 9 Ed. 931. And for the forms of judgments after verdict or nonsuit, &c. see Tidd Prac. Forms, 332, &c. * 2 Rol. Abr. 70, 71. C.; and see Vin. Abr. tit. Heir, C. Bac. Abr. tit. Heir and Ancestor, H. 2 Wms. Saund. 5 Ed. 7. (4.) f Anon. Dyer, 149. a. Bro. Abr. tit. Assets per discent, pl. 13. |