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BOOK IV.
PART I.

In what Cases set Aside.

When regular.

When irregular.

Costs and Execution, &c.

Proceedings after it.

a roll of the day of the declaration, if any; or if no declaration, then of the day judgment is to be signed, and also on a judgment paper (1): or, if in the Common Pleas or Exchequer, write the judgment upon plain paper. Take them to the master, who will sign the judgment. Get him to tax the costs, and he will mark the same upon the judgment paper. After judgment signed and costs taxed, you may proceed to sue out execution,

Also, in error, judgment of nonpros is signed as above di

rected.

In what Cases set Aside.] If the judgment be regular, it is discretionary with the court to set it aside, upon an affidavit that there is a good cause of action on the merits, or that there is a present cause of action (m), and upon payment of costs, in order to let in a trial of the merits. They have refused to set it aside in an action by a common informer (n).

But if the judgment be irregular, the court will in all cases set it aside with costs; and if an action or other proceedings be had upon such a judgment, one rule is all that is requisite in order to set aside such proceedings, as well as the judgment (o).

Costs and Execution, &c.] The defendant is entitled to costs in all cases, (23 H. 8, c. 15: 8 El. c. 2: 13 C. 2, st. 2, c. 2: 4 J. 1, c. 4) (p), even in an action by a common informer (9), excepting upon a nonpros for not transcribing, in error(r). We have already seen (ante, 751-753) when the defendant in ejectment is entitled to the costs of a nonpros. For these costs the defendant may either sue out execution by ca. sa. or fieri facias (s), or he may proceed by debt on the judg ment, in which he would have a right to his costs, notwithstanding the 43 G. 3, c. 46, s. 4 (t). Under the execution you cannot levy more than the sum recovered by the judgment; consequently, the sheriff's poundage or fees, or other expenses of the execution, cannot be levied (u).

Proceedings after it.] After being nonprossed, the plaintiff may commence a new action against the defendant, for the same cause; and he may, as in other cases, obtain an order to hold the defendant to bail, if the action be bailable, and the defendant be about to leave England, unless forthwith apprehended (x).

(7) See the forms referred to in preced- murrer to a plea in abatement. (Michiam ing pages, ante, 1053, 1055. v. Bate, 8 B. & C. 642; 3 M. & R. 91, S. C: ante, 656)

(m) Cortessos v. Hume, 2 Dowl. 134.
(n) Bennett v. Smith, 1 Burr. 401.
(0) Barlow v. Kaye, 4 T. R. 638: see
Kibblewhite v. Jeffrys, 1 Chit. 142.

(p) Davies v. James, 1 T. R. 373. The
plaintiff was liable even before the 3 & 4
W. 4, c. 42. s. 31, (ante, 876), although he
sued as executor. (Hawes v. Saunders, 3
Burr. 1585: Higgs v. Warry, 6 T. R.
654). But he was not so liable before that
act (sect. 32), and R. H., 4. W. 4, r. 15, on
a judgment of nonpros obtained by reason
of the plaintiff's having omitted to enter
the issue on record, after joinder in de-

(q) 18 El. c. 5: Law v. Worrall, 1 Wils. 177.

(r) Salt v. Richards, 7 East, 110: see College of Physicians v. Harrison, 9 B. & C. 525: ante, Vol. I. 379.

(8) Murray v. Wilson, 1 Wils. 316. See the form, Chit. Forms, 610.

(t) Bennett v. Neale, 14 East, 343 (u) Baker v. Sydee, 7 Taunt, 190: Anon., 2 Chit. Rep. 353.

(x) Turton v. Hayes, 1 Stra. 439: see 1 & 2 V. c. 110, s. 3.

CHAPTER XIX.

DISCONTINUANCE.

CHAP. XIX.

What, &c.] IT is unnecessary, in a work of this nature, to What, &c. treat particularly of the subject of discontinuance; it is sufficient to know that it never can be the subject of objection pendente placito (a), and that, after verdict, it is cured by the statute of Jeofails, 32 H. 8, c. 30 (b).

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Continuance.] Formerly, after declaration, and before issue Continuance. joined, the proceedings were continued by imparlance; (see ante, 802; Vol. I. 155) (c); after issue joined and before verdict, by vicecomes non misit breve; after demurrer, and before judgment, by curia advisari vult; after issue joined upon nul tiel record, by curia advisari vult, &c.; after verdict and before judgment, in actions tried at the assizes, and in cases of special verdicts, by curia advisari vult; after joinder in error and before judgment, also by curia advisari vult (d). But now, by rule of all the courts of H. T., 4 W. 4, r. 2, no entry of continuances by way of imparlance, curia advisari vult, vicecomes non misit breve, or otherwise, shall be made upon any record or roll whatever, or in the pleadings, except the jurata ponitur in respectu, which is to be retained. Provided that such regulation shall not alter or affect any existing rules of practice as to the times of proceeding in the cause" (e). It has been doubted, whether this rule abolishes imparlances in proceedings by scire facias (f), or in actions not commenced by the process prescribed by the Uniformity of Process Act (g).

Rule to Discontinue.] If the plaintiff find that he has mis- Rule to disconceived his action, or that for some defect in the pleadings, continue. or other reason, he will not be able to maintain it, he may obtain a rule for leave to discontinue. This indulgence, however, is granted only to plaintiffs; even an avowant in replevin cannot have it (h). The terms upon which a party is allowed to discontinue are in the discretion of the court. It is granted always upon payment of costs (i). Where the defendant is a justice of peace, and in some other actions against public officers and others, if the plaintiff discontinue, it must be upon payment of double costs (j).

(a) Beecher v. Shirley, Cro. Jac. 211. (b) See as to continuances of process, ante, 923. See Humble v. Bland, 6 T. R. 255: Wynn v. Wynn, 1 Wils. 40: Richards v. Brown, 1 Doug. 115.

(e) Chit. Forms, 308.

(di See Curluis v. Pardey, 1 Salk. 179: Wilkes v. Wood, 2 Wils. 203: see Doe Mears v. Dolman, 7 T. R. 618.

(e) By the prior rule of H. T., 2 W. 4. r. 105, the entry of continuances after judgment by default, and before execu

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BOOK IV. PART I.

How, and when obtained.

Motion and

Rule for.

What Costs payable.

Consequence

Costs.

How and when Obtained.] This rule may be had at any time after the commencement of the action, and before trial or writ of inquiry. The court may grant the rule after a rule for a new trial, upon the terms of plaintiff's paying the costs of the trial (j). They may also grant it, as a matter of especial favour, even after a special verdict (k); but they will not do so in a hard action (1), or to give the plaintiff an opportunity to adduce fresh proof in contradiction to the verdict (m). Nor will they ever grant it after a general verdict (n), or after a writ of inquiry executed and returned (o), unless with the defendant's consent. The court, however, have allowed the plaintiff to discontinue upon payment of costs after a demurrer argued and allowed, where there was a mistake in the plaintiff's pleading (p); and the court frequently give the party leave to amend upon payment of costs(q).

Before argument on demurrer, verdict, or execution of a writ of inquiry, this is a mere side-bar rule, and may be had as a matter of course from the master (r). In other cases it is obtained upon application to the court, and is but a rule nisi, which you must afterwards proceed to make absolute in the ordinary way. Formerly, in the Common Pleas, if the rule to discontinue were obtained after plea pleaded, the defendant's attorney or agent must have consented to a rule in the treasury chamber in term time, or before a judge in vacation, or else there must have been a rule to shew cause. But by rule H. T., 2 W. 4, r. 106, of all the courts, "To entitle a plaintiff to discontinue after a plea pleaded, it shall not be necessary to obtain the defendant's consent, but the rule shall contain an undertaking (8) on the part of the plaintiff to pay the costs, and a consent, that, if they are not paid within four days after taxation, defendant shall be at liberty to sign a nonpros. As soon as you have obtained the side-bar rule, or rule absolute, take it to the master, and get an appointment on it to tax the costs. Serve a copy of the rule and appointment on the defendant's attorney or agent; and attend at the time appointed, and the

master will tax the costs.

Upon the question as to what costs will be allowed, it has been recently decided that the defendant is not entitled, under any circumstances, to the costs of the draft or copies of the briefs, where the plaintiff discontinues without having given notice of trial (t).

These costs should be paid forthwith; for, until paid, the of not paying action is not discontinued, and the plaintiff may be compelled to proceed therein as usual (u). And where the plaintiff, instead of paying costs, went on and obtained a verdict, Parke, J., refused to set aside the verdict, and order a discontinuance to be entered (x). But if the rule be obtained after plea

(j) Sweeting v. Halse, 9 B. & C. 369: and see Jackson v. Hallam, 2 B. & Ald. 317; 1 Chit. Rep. 19, S. C.

(k) Price v. Parker, 1 Salk. 178: Good-
enough v. Butler, 3 Dowl. 751.

(1) Boucher v. Lawson, Hardw. 200, 201.
(m) Roe v. Gray, 2 W. Bl. 815.
(n) Price v. Parker, 1 Salk. 178: Good-
enough v. Butler, 3 Dowl. 751.

(o) Stephens v. Etherick, Carth. 86; 1
Show. 63, S. C.

(p) Red v. Burnis, 2 Lev. 124: Ent v. Withens, Id. 209; 1 Saund. 23: Pugh v. Robins, 1 T. R. 116; 1 Saund. 39: but

see Turner v. Turner, 1 Salk. 179.

(q) 2 Saund. 73, n. (1): ante, 665. (r) See the forms, Chit. Forms, 583 (8) See form of rule and undertaking, Chit. Forms, 612.

(t) Doe Postlewaite v. Neale, 2 M. & W. 732; 6 Dowl. 166, S. C.

(u) Molling v. Buckholtz, 3 M. & Sel 153: Edgington v. Proudman, 1 Dawl 152. MS., T. 1814: Whitmore v. Well'ame, 6 T. R. 765: see White v. Gompertz, 3 B. & Ald. 905; 1 D. & R. 556, S. C.

(x) Edgington v. Proudman, I Dowl 152.

pleaded, and contain, as it should do, the plaintiff's consent, CHAP. XIX. that if they are not paid within four days after taxation, the defendant shall be at liberty to sign judgment of nonpros (y), then if they be not so paid, the defendant may sign such judgment as of course (z). But the defendant would not be entitled to judgment as in case of a nonsuit (a). Nor is the plaintiff, it seems, liable to an attachment for the non-payment of these costs (b).

In some rare cases the plaintiff will be allowed to discontinue without payment of costs (c). And sometimes by consent the rule to discontinue is drawn up without costs.

Plaintiff to

When the costs are paid, but not before, the defendant may, Compelling by motion or summons and order, compel the plaintiff to enter Disconenter the judgment of discontinuance and carry in the judg- tinuance. ment roll.

to discontinue

When Discharged.] It is in the power and discretion of the When Rule court or a judge to discharge the rule to discontinue. Where, discharged. in a case before the 1 & 2 Vict. c. 110, a plaintiff, merely because he did not like the bail in the first action, discontinued, and held the defendant again to bail in the second action, the court considered this conduct unwarrantable, and discharged the side-bar rule, thereby leaving the first bail still liable on their recognisance (d). Yet, in another case, before that act, and also before the 2 Will. 4, c. 39, where it appeared clearly that the bail in the first action had forsworn themselves, and were in fact worth nothing, the court held that the plaintiff was justified in holding the defendant to bail in a second action for the same cause, even before he had discontinued the first; for, had he discontinued, it is very probable the defendant would have absconded (e).

New Action.] After the costs have been taxed and paid (ƒ), New Action. the plaintiff may commence a new action for the same cause. And before the 1 & 2 V. c. 110, if the first action were upon common non-bailable process, the plaintiff might have held the defendant to bail for the same cause, (if bailable), even before the first action was discontinued (g), provided he discontinued before declaring, otherwise the defendant might have pleaded the pendency of the prior action in abatement. But if the defendant were held to bail in the first action, he could not have been held to bail a second time without a judge's order (h).

See form of entry on roll, Chit. Forms, 612.

(2) See R. H., 2 W. 4, r. 106, ante, 1058. (a) Cooper v. Holloway, 1 Hodges, 76. (b) Stokes v. Woodeson, 7 T. R. 6: and see Rer v. Fenn, 2 Dowl. 182: Turner v. Gill, 3 Dowl. 31.

(c) See Ames v. Ragg, 2 Dowl. 35. See as to costs of trial where plaintiff discontinued instead of proceeding to a new trial, Gray v. Coz, 8 D. & R. 220. See Patterson v. Purcell, 2 Dowl. 738.

(d) Belchier v. Gansell, 4 Burr. 2502. (e) Ante, Vol. 1, 476: Olmius v. Delany, 2 Str. 1216: quare, whether, since the

Uniformity of Process Act. 2 W. 4. c. 39,
the first action must not be discontinued
before commencing the second, other-
wise the pendency of the first might be
pleaded in abatement.

(f) Molling v. Buckholts, 3 M. & Sel.
153: Whitmore v. Williams, 6 T. R. 765;
MS., T. 1814.

(g) Bishop v. Powell, 6 T. R. 616: Anon., 1 Dowl. 59; Id. 57: ante, Vol. I. 476: sed quære, since the Uniformity of Process Act, it would seem, the first action ought to be discontinued.

(h) R. H., 2 W. 4, r. 7: see ante, Vol. I. 476.

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CHAPTER XX.

BOOK IV.
PART 1.

What and

when entered.

CASSETUR BREVE.

WHEN the defendant pleads sufficient matter in abatement, and the plaintiff cannot deny it, the latter may either obtain leave to amend his declaration, if that will answer his purpose (a), and which will be granted upon payment of costs (b), or he may at once enter on the roll a judgment that the writ be quashed, in order that he may be enabled to commence a new action. If he adopt the latter mode, let him get a roll of the day the declaration is delivered, and enter the declaration and plea on it, as in ordinary cases, and lastly the cassetur (c). Docket it with one of the masters, as in ordinary cases, and get it marked by him; after which, file it in the treasury of the court. In the Common Pleas, instead of docketting the roll with one of the masters, &c., it seems that you have to take the roll to the master's, and docket it in the book kept there for the purpose, which the clerk will give you. Leave of the court is not neces sary in order to make this entry; nor is the plaintiff obliged to pay the defendant's costs (d).

As to quashing a writ of error, see ante, Vol. I. 353.

(2) It will not if the writ be wrong also, and if that cannot be amended. As to when the writ may be amended, see ante, Vol. I. 522.

(b) Mestaer v. Hertz, 3 M. & Sel. 450,
and sometimes without. (See Wall v.
Lyon, 9 Bing. 411; 1 Dowl. 714, S. C.)

(c) See the form, Chit. Forms, 613.
(d) Pr. Reg. 6, ante, 656. Formerly,
after entering a cassetur breve, the plaintiff

might deliver another declaration by th bye for the same cause of action, at any time within the term in which the writ was returnable (Miller v. Andrew, 5 T. R. 634); but if that time had elapsed, he must have sued out new process, if he wished to re-commence his action. The practice of declaring by the bye is, however, now abolished. (See Vol. L. 136).

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