BOOK 11. cution must When the writ is to be executed before the sheriff, the PART IV. notice states that it will be executed on a day therein stated, Statement of which must be on or before the return day of the writ (b), not time of Exe- being Sunday (c), usually between two certain hours (d), as be be certain and tween the hours of ten and twelve o'clock in the forenoon, og definite. between the hours of four and six o'clock in the afternoon (e “at the Secondary's Office, No. 28, Coleman Street, London,* in London; or " at the Sheriff's Office, in Red Lion Square, near Holborn, in the county of Middlesex," if in Middlesex; or, i in any other county, then at some place within the county appointed for that purpose, and particularly described in the notice (f). A notice of executing the writ "by ten o'clock” (g orat ten o'clock, or as soon after as the sheriff can attend" (A) will be bad for uncertainty; so, "between the hours of ten and two o'clock," has been holden insufficient, as not being suffi Bat sufficient, ciently definite (i). But a notice to execute "at 11 o'clock" is if Defendant good, it having been executed before twelve o'clock (k). And when the notice was given for Wednesday, the 11th of June, when Wednesday fell on the 10th, on which day the inquiry was executed, the court refused to set it aside, the defendant refusing to swear that he was misled by it(); and the same, where the notice was given for Tuesday the 14th, whereas the 14th fell on Thursday, on which day the writ was executed (m), the defendant not swearing that he was misled. not misled. The Defend- pune Notice for Sittings or Assizes. Continuance or Counter mand of Notice of Inquiry. If the defendant do not attend punctually at the time mentioned in the notice, and the writ be executed in his absence, the court will not relieve him (n); and, on the other hand, if the defendant attend at the hour, he will not be warranted in leaving the court at the expiration of the time mentioned in the notice; for the sheriff may have prior business, which may detain him beyond that time (o). But, if the plaintiff, in the absence of the defendant, have the writ executed at a different time or place from that specified in the notice, it will be irregular, and the court, upon application, will set it aside. If the writ is to be executed before the chief justice or judge of assize, the notice is given for the sittings or assizes generally (p), in the same manner as in the notice of trial, ante, 208. Notice of inquiry may be continued or countermanded, in the same manner as a notice of trial, and as to which, see ante, 210, 211 (9). It can be continued but once (r). The notice of continuance need not specify the place or hour, for it shall be taken to refer to the place and hour specified in the original notice (s). But a notice of continuance, not stating the hour (b) Davies v. Salter, 2 Salk. 627: Dyke (c) Hoyle v. Cornwallis, 1 Str. 387. (f) See Comyns, 551: Squire v. Almond, 447. (g) Ison v. Fowen, 2 Str. 1142. (1) Eldon v. Haig, 1 Chit. Rep. 11: and see Batten v. Harrison, 3 B. & P. 1: and ante. 209, 294: sed vide Abraham v. Noakes, 1 Chit. Rep. 5. (m) Batten v. Harrison, 3 B. & P. 1. Lofft, 193, S. C.: 2 Barnard, 214. Chit. Forms, 339: of countermand, Id Rep. 220: Fryer v. Binns, B., C. M. 1837; Robinson v. Phillips, Id. 296: Comyns, Barnes, 297: Burgess v. Royle, 2 Chit. 551; and see 1 Barnard, 139: Langstaffe v. Lamb, Barnes, 293. (k) Last v. Denny, Barnes, 302. 2 Jurist, 15. (8) Jones v. Chune, 1 B. & P. 363. M Attendance of Counsel.-Subpoenaing Witnesses, &c. nd place, cannot operate as an original notice, though given en days previously (t). Notice of continuance of inquiry must be given in town; but countermand of notice of inquiry be given either in town or country, unless otherwise dered by the court or a judge (u). 717 CHAP. IV. SECT. 1. for not pro If the plaintiff do not either proceed to execute his writ ac- Costs of Day, ording to the notice, or countermand it in time, the defendant ceeding on fill be entitled to his costs of the day, on an affidavit of attend- Notice. nce and necessary expenses incurred (x), in the same manner for not proceeding to trial (y). in, how An irregularity in the notice of inquiry, or in the time and Irregularity lace of executing it, is waived, in general, by the defendant or waived. is attorney attending at the inquiry, and making a defence in the execution of the writ (). It has been held, that a defendant to whom an irregular notice of inquiry is given Baght to return it forthwith, and state what objection he has it, otherwise he would not be allowed the costs of an applitation to set aside the inquiry (a). But retaining the notice is no waiver of the irregularity (b). Counsel. Attending by Counsel.] If you wish to attend the execution Attending by of the writ of inquiry by counsel, you should give notice thereof to the opposite party (c), in order to get the expense of his attendance, and briefs, &c., allowed you. Moreover the sheriff may, it seems, at the request of the opposite party, postpone the execution of the writ, unless such notice be given (d). A written notice is not requisite (e). The master may or may not, in his discretion, allow costs for the attendance of counsel, and preparing briefs, &c. (ƒ). Witnesses. Subpoenaing Witnesses.] After the notice of inquiry, the Subpoenaing next step to be taken is to subpoena the witnesses necessary to prove the amount of the damages (g). How Writ executed.] Immediately upon the receipt of the How Writ writ, the sheriff will summon a jury. Attend at the time ap- executed. pointed, with your counsel and witnesses; and the inquest will be taken in nearly the same manner as at a trial at Nisi Prius, (see ante, 264), excepting that the jurors cannot be challenged (h). Also, the execution of the writ may be adjourned by the sheriff, if necessary, after it is entered upon (i). Evidence and Damages.] All the plaintiff has to prove, or Evidence and the defendant is permitted to controvert, is the amount of the Damages. damages (k); for the cause of action itself, as stated in the Fryer v. Binns, B., C. M. 1837; 2 Jurist, Id. (W) R. G. H., 2 W. 4, s. 57. R. H., 8 G. 1a: see Sutton v. Bryam, 2 Str. 728. See post, Book IV. Part I. Ch. 23. (3) See ante, 211. 4 Sterne v Pell, 2 Dowl. 355. bld (e) See the form, Chit. Forms, 339. See Elliott v. Micklin, 5 Price, 641; 1 Sel. 344: Coleman v Mawby, 2 Str. 853: Markham v, Middleton, Id. 1259. (e) Elliott v. Mickiin, 5 Price, 641. (g) See ante, 232. See form of a pre- (h) Anon., 3 Salk. 81. (1) Coleman v. Mawby, 2 Str. 853: Markham v. Middleton, Id. 1259: Elliott v. Micklin, 5 Price, 641. (k) De Gaillon v. L'Aigle, 1 B. & P. 368. BOOK II. PART IV. Statement of time of Exe cution must be certain and definite. When the writ is to be executed before the sheriff, the notice states that it will be executed on a day therein stated, which must be on or before the return day of the writ (b), not being Sunday (c), usually between two certain hours (d), as between the hours of ten and twelve o'clock in the forenoon, or between the hours of four and six o'clock in the afternoon (e), "at the Secondary's Office, No. 28, Coleman Street, London,” if in London; or "at the Sheriff's Office, in Red Lion Square, near Holborn, in the county of Middlesex," if in Middlesex; or, if in any other county, then at some place within the county appointed for that purpose, and particularly described in the '(g), or "at ten o'clock, or as soon after as the sheriff can attend" (h), will be bad for uncertainty; so, "between the hours of ten and two o'clock," has been holden insufficient, as not being suffiBut sufficient, ciently definite (i). But a notice to execute "at 11 o'clock" is if Defendant good, it having been executed before twelve o'clock (k). And when the notice was given for Wednesday, the 11th of June, when Wednesday fell on the 10th, on which day the inquiry was executed, the court refused to set it aside, the defendant refusing to swear that he was misled by it (?); and the same, where the notice was given for Tuesday the 14th, whereas the 14th fell on Thursday, on which day the writ was executed (m), the defendant not swearing that he was misled. not misled. If the defendant do not attend punctually at the time mentioned in the notice, and the writ be executed in his absence, the court will not relieve him (n); and, on the other hand, if the defendant attend at the hour, he will not be warranted in leaving the court at the expiration of the time mentioned in the notice; for the sheriff may have prior business, which may detain him beyond that time (o). But, if the plaintiff, in the absence of the defendant, have the writ executed at a different time or place from that specified in the notice, it will be irregular, and the court, upon application, will set it aside. If the writ is to be executed before the chief justice or judge of assize, the notice is given for the sittings or assizes generally (p), in the same manner as in the notice of trial, ante, 208. Notice of inquiry may be continued or countermanded, in the same manner as a notice of trial, and as to which, see ante, 210, 211(g). It can be continued but once (r). The notice of continuance need not specify the place or hour, for it shall be taken to refer to the place and hour specified in the original notice (s). But a notice of continuance, not stating the hour (b) Davies v. Salter, 2 Salk. 627: Dyke (c) Hoyle v. Cornwallis, 1 Str. 387. (f) See Comyns, 551: Squire v. Almond, (g) Ison v. Fowen, 2 Str. 1142. (h) Hannaford v. Holman, Barnes, 295. (i) Foster v Smales, Barnes, 295, 296: Robinson v. Phillips, Id. 296: Comyns, 551: and see 1 Barnard, 139: Langstaffe v. Lamb, Barnes, 293. (k) Last v. Denny, Barnes, 302. (1) Eldon v. Haig, 1 Chit. Rep. 11: and see Batten v. Harrison, 3 B. & P. 1: and ante. 209, 294: sed vide Abraham v. Noakes, 1 Chit. Rep. 5. (m) Batten v. Harrison, 3 B. & P. 1. (n) 1 Barnard, 233. (0) Williams v. Frith, 1 Doug. 198; Lofft, 193, S. C.: 2 Barnard, 214. (p) Tidd, 579: 1 Sellon, 353. (q) See form of a notice of continuance, Chit. Forms, 339; of countermand, Id (r) MS., H. 1820: Price v. Bambridge, Barnes, 297: Burgess v. Royle, 2 Chit. Rep. 220: Fryer v. Binns, B., C. M. 1837: 2 Jurist, 15. (s) Jones v. Chune, 1 B. & P. 363. Attendance of Counsel.-Subpoenaing Witnesses, &c. and place, cannot operate as an original notice, though given ten days previously (t). Notice of continuance of inquiry must be given in town; but countermand of notice of inquiry may be given either in town or country, unless otherwise ordered by the court or a judge (u). 717 CHAP. IV. SECT. 1. ceeding on If the plaintiff do not either proceed to execute his writ ac- Costs of Day, cording to the notice, or countermand it in time, the defendant for not prowill be entitled to his costs of the day, on an affidavit of attend- Notice. ance and necessary expenses incurred (x), in the same manner as for not proceeding to trial (y). in, how An irregularity in the notice of inquiry, or in the time and Irregularity place of executing it, is waived, in general, by the defendant or waived. his attorney attending at the inquiry, and making a defence on the execution of the writ (z). It has been held, that a defendant to whom an irregular notice of inquiry is given ought to return it forthwith, and state what objection he has to it, otherwise he would not be allowed the costs of an application to set aside the inquiry (a). But retaining the notice is no waiver of the irregularity (b). Counsel. Attending by Counsel.] If you wish to attend the execution Attending by of the writ of inquiry by counsel, you should give notice thereof to the opposite party (c), in order to get the expense of his attendance, and briefs, &c., allowed you. Moreover the sheriff may, it seems, at the request of the opposite party, postpone the execution of the writ, unless such notice be given (d). A written notice is not requisite (e). The master may or may not, in his discretion, allow costs for the attendance of counsel, and preparing briefs, &c.(ƒ). Subpoenaing Witnesses.] After the notice of inquiry, the Subpoenaing next step to be taken is to subpoena the witnesses necessary to Witnesses. prove the amount of the damages (g). executed. How Writ executed.] Immediately upon the receipt of the How Writ writ, the sheriff will summon a jury. Attend at the time appointed, with your counsel and witnesses; and the inquest will be taken in nearly the same manner as at a trial at Nisi Prius, (see ante, 264), excepting that the jurors cannot be challenged (h). Also, the execution of the writ may be adjourned by the sheriff, if necessary, after it is entered upon (i). Evidence and Damages.] All the plaintiff has to prove, or Evidence and the defendant is permitted to controvert, is the amount of the Damages. damages (k); for the cause of action itself, as stated in the (e) Fryer v. Binns, B., C. M. 1837; 2 Jurist, Id. (*) R. G. H., 2 W. 4, 8. 57. (1) R. H., 8 G. 1 a: see Sutton v. Bryam, 2 Str. 728. (See post, Book IV. Part I. Ch. 23. (2) See ante, 211. (a) Stevens v Pell, 2 Dowl. 355. (b) Id (e) See the form, Chit. Forms, 339. (d) See Elliott v. Micklin, 5 Price, 641; 1 Sel. 544: Coleman v Mawby, 2 Str. $53: Markham v, Middleton, Id. 1259. (e) Elliott v. Mickiin, 5 Price, 641. (g) See ante, 232. See form of a pre- (h) Anon., 3 Salk. 81. (1) Coleman v. Mawby, 2 Str. 853: Markham v. Middleton, Id. 1259: Elliott v. Micklin, 5 Price, 641. (k) De Gaillon v. L'Aigle, 1 B. & P. 368. Воок 11. PART IV. Amount of Damages, where no Evi declaration, is impliedly admitted by the defendant, by his suffering judgment to pass against him by default (1). The judgment admits something to be due, but disputes the amount therefore, in an action for work and labour under the common counts, though the defendant admits that some. work was done at his request, still he may cross-examine plaintiff's witnesses, or perhaps call others to prove that all the work charged for was not done at defendant's request (m). In an action on a policy on a foreign ship, when there is a stipulation that the policy shall be sufficient proof of interest, and judgment is suffered by default, the plaintiff, on the inquiry, need only prove the defendant's subscription to the policy, without giving any evidence as to interest (n). A lease, mentioned in the condition of a bond set out by the defendant upon over, need not be proved (o). So, a bill of exchange or promissory note, if declared upon, need not be proved, although it must be produced, in order to satisfy the inquest that no money has been paid on account of it (p): and the plaintiff is entitled to recover nominal damages, though the bill or note be not produced (9). So a contract, if declared on, is by the judgment admitted, and evidence to contradict it, which would be good under the general issue, ought not to be admitted (r). So the defendant, in an action on a contract, will not be allowed to give evidence of fraud (s), or of any other matter which would render the contract void; for, by allowing judgment to go by default, he has admitted the validity of the contract. So, the defendant will not be allowed to give in evidence, in mitigation of damages, any matter which might have been made the subject of a set-off (t). In an action for use and occupation, the plaintiff need not shew that the house occupied by the defendant was the plaintiff's house, as the judgment by default is an admission that the defendant occupied a house under the plaintiff; but if the defendant insist that he did not occupy the particular house alluded to in the evidence produced on the inquiry, the plaintiff must then prove the fact of its being his own house (u). In trespass, or any other action, where the damage actually sustained by the plaintiff is the measure of the damages to be dence given. given by the jury, if the plaintiff do not prove the nature of the injury, and the amount of the damage sustained by him, the jury always give nominal damages merely. But where the jury are to imply the amount of the damages from the nature of the injury, and where no special damage could be proved unless laid in the declaration,-as, for instance, in an action of slander, or the like,—there, although the plaintiff do (1) Eadem v. Lutman, 1 Str. 612: and (m) Williams v. Cooper, 3 Dowl. 204. (0) Collins v. Rybot, 1 Esp. 157. (p) Green v. Hearne, 3 T. R. 301: Anom., 3 Wils. 155: and see Beris v. Lindsell, 2 Str. 1149. On an application for a rule to compute without production of the bill, the court refused to give an opinion whether production was necessary, but granted the rule, leaving the question to the decision of the master. (Sanderson v. Lee, 7 Dowl. 97). (q) Marshall v. Griffin, 1 R. & M. 41. (r) Stephens v. Pell, 2 Dowl. 629: see De Gaillon v. L'Aigle, 1 B. & P. 368: Shepherd v. Chester, 4 T. R. 275. (8) Eadem v. Lutman, 1 Str. 612: Shepherd v. Chester, 4 T. R. 275. (t) Carruthers v. Graham, 14 East, 78. As to payments, see ante, Vol. I. 185, 186. (u) Davis v. Holdship, 1 Chit. Rep. 644, n. (a). |