BOOK IV. When neces ral. CHAPTER XXXII. ENTRY OF SUGGESTIONS UPON THE ROLL. WHEREVER, by the provision of an act of parliament, or otherwise, a person not a party to the record is to be affected by a judgment, or where the judgment upon the record is to sary in gene- be such as would not be ordinarily warranted by the previous proceedings on the record, the proper course is, in some cases, to issue a scire facias against him, and in others, to enter a suggestion on the roll; so that the party to be affected by it may, in the former proceeding, appear and plead to it, and in the latter proceeding, that he may demur, if he thinks the facts suggested are insufficient in point of law, or to plead if he means to deny them (a). We shall proceed to notice in this Chapter the latter mode of proceeding in the following cases. As to the proceeding by scire facias, see ante, 815. As to the awarding of the Venire. In Local Actions to pre Suggestions as to the Awarding of the Venire, 1170. as to the Death of Parties, 1172. -for Costs, id. As to the Awarding of the Venire.] If the sheriff be interested in the event of the cause, or related by blood or affinity to either of the parties, a suggestion to this effect may be entered on the issue, immediately before the award of the cenire; and the venire is then awarded to the other sheriff, if there be two(b); or if there be but one, then to the coroner (c); or if the coroner be interested, &c., then to two persons appointed by the court, called elizors (d). Any matter may be thus suggested which would be a good principal challenge to the array of the jury (e). In local actions in the superior courts, by the 3 & 4 W. 4, c. 42, s. 22, after reciting, that "unnecessary delay and expense vent Delay. is sometimes occasioned by the trial of local actions in the county where the cause of action has arisen; "it is enacted, "that in any action depending in any of the said superior courts, the venue in which is by law local, the court in which such action shall be depending, or any judge of any of the said courts, may, on the application of either party, order the issue to be tried, or writ of inquiry to be executed, in any other county or place than that in which the venue is laid; and for that purpose, any such court or judge may order a suggestion to be entered on the record, that the trial may be more conveniently had, or writ of inquiry executed, in the county or place where the same is ordered to take place” (ƒ). The application to a (a) See Bartlett v. Pentland, 1 B. & (b) Rex v. Warrington, 1 Salk. 152: (d) Id.: Holland v. Heron, Barnes, 465. See forms of such suggestions, Chit. Forms, 635. (e) See upon this subject, Vol. I. 3. (ƒ) See the forms, Chit. Forms, 636. court or a judge for this purpose should be supported by an CHAP. XXXII. affidavit, shewing the unnecessary delay or expense that will take place by the trial or execution of the writ of inquiry in the county in which the action is brought. an impartial So, in local actions, where a fair and impartial trial cannot Or to secure be had in the county where the venue is laid, the court, upon Trial. a proper case being stated to them by affidavit, will, upon motion, grant leave to enter such a suggestion upon the issue, with a nient dedire, in order to have a trial in the next adjoining county (g); and it seems to be immaterial whether the next adjoining county be a county palatine or not (h). The affidavits upon which such an application is founded, should specify the facts from which it is to be inferred that a fair trial cannot be had in the county where the venue is laid (i). In transitory actions, it is more usual to move for leave to change the venue (j). Also, in actions transitory or local, depending in any of the Where Venue courts at Westminster, where the venue is laid in the county of City or laid in County of any city or town corporate in England, (with the exception Town Corof London, Westminster, Bristol, Chester, and the borough of porate, &c. Southwark), the court, upon the application of either party, may, if they think proper, award the venire, &c., to the sheriff of the county next adjoining to the county of such city or town corporate, in order that the action may be there tried (38 G. 3, c. 52, ss. 1, 10) (k); and it should seem that this would be the case, even although the venue has been changed to the city upon the usual affidavit (7). laid in Ber Where the venue is laid in Berwick-upon-Tweed, or other Where Venue place where the queen's writ of venire does not run, then upon wick-upona suggestion that the issue ought to be tried in the next ad- Tweed. joining English county, the venire is awarded to the sheriff of such county accordingly (m); thus, where the venue is laid in Berwick-upon-Tweed, the venire, upon suggestion, may be awarded to the county of Northumberland (n); and the like (o). The suggestion should always be made at the proper stage When made. of the proceedings, when the fact which gave rise to the necessity for making the suggestion took place. Suggestion In all cases, where either party would suggest any special Notice of the matter, as to the awarding of the venire out of the common should be course, a copy should be given to the opposite party, and he given. should be allowed a reasonable time to consider of it, before a nient dedire is entered (p). Of Breaches in Debt on Bond.] As to the suggestion, &c., in Of Breaches this case, see ante, 723 to 729. Forms, 637. () Bird v. Morse, 7 Taunt. 385. (n) Mayor of Berwick v. Ewart, 2 W. (0) See also Way v. Yally, 2 Salk. 651: and see form of suggestion and award of venire, Chit. Forms, 103. (p) Brocas v. London, City of, 1 Str. 235. in Debt on Bond. BOOK IV. of Parties. Before final Of the Death of Parties.] Where there are two or more plaintiffs or defendants, and one or more of them die, if the Of the Death cause of action survive to or against the survivors (q), the action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of or against the survivors (r). The death, in this case, if it occur before issue joined, is suggested at the commencement of the next pleading, and of course appears upon the face of the issue when made up. But if it happen after issue joined, it seems, according to one case, that it is not necessary that it should be suggested upon the Nisi Prius record; and that if it be suggested upon the issue roll, it will be sufficient (s). But, according to a more recent decision at Nisi Prius, it would seem that it should be suggested on the Nisi Prius record (t). And inasmuch as there is now no distinct issue roll (u), it would seem that the suggestion should be made on Amendment the Nisi Prius record. Even after motion to set aside proof Omission ceedings for irregularity, because one of two plaintiffs died before interlocutory judgment, and the suit proceeded to execution in the names of both, the court allowed the surviving plaintiff to suggest the death of the other on the roll, and to amend the ca. sa. without payment of costs (x). to enter it. After final Death of Defendant in Error. For Costs. Where De tled to more than usual Costs. If the death happen after final judgment, then, upon suggesting the death upon the roll, you may sue out execution by or against the survivor(y); or you may sue out execution in the names of all, but it can be executed as against the survivor only (z). The lands, however, of a deceased defendant are still liable in satisfaction of the judgment, although he leave others of the defendants surviving him; for the judgment survives as to the personalty only, and not as to the realty (Vol. I. 444); and therefore, if the plaintiff wish to sue out an elegit against the lands of a deceased defendant, as well as against the survivor, he may have a scire facias against such survivor and the heir and terretenants of the deceased, to have execution against the lands and goods of the former, and the lands of the latter (a). If one of several defendants in error die, upon suggesting the death upon the roll, you may proceed against the survivors (b). For Costs.] Where the effect of an act of parliament is to alter the law in respect of giving costs to a defendant in a case fendant enti- where the plaintiff, in ordinary circumstances, would be entitled to them, the proper course is to enter a suggestion on the roll of the facts necessary to entitle the defendant to those costs; so that the plaintiff may demur, if the defendant do not set forth the facts which bring the case within the act of parliament, or may traverse those facts if they be untrue (c). If 319 1 Show. 404; 1 Ld. Raym. 244, S. C. (z) 2 Saund. 50 k, 72 k, o: ante, 819 (a) Ante, 820. (q) See Checchi v. Powell, 6 B. & C. 253. 808: and see Pennoir v. Brace, 1 Salk. (r) 8 & 9 W. 3, c. 11, s. 7. (8) Farr v. Denn, 1 Burr. 363. (t) Rex v. Cohen, 1 Stark. 511. (u) See Hodges v. Diley, 7 Dowl. 444. (x) Newnham v. Law, 5 T. R. 577. See forms of suggestions of death, before is sue joined, Chit. Forms, 638; after issue joined, Id. 639. (y) Withers v. Harris, 2 Ld. Raym. (b) Vol. I. 355. See a form of the suggestion, Lill. Ent. 217. (c) Hickman v. Colley, 2 Str. 11: Bartland v. Pentland, 1 B. & Adol. 710 In Rawson v. Dundas, 3 Bing. N. C. 160; the act of parliament be repealed pending the suit, it seems CHAP. XXXII. that the costs must be awarded as if the act had never existed, unless there be some express saving in the repealing act (d). If a defendant be entitled to double or treble costs on a ver- Double or dict for him, because sued for something done by virtue of his Treble Costs. office of justice of peace, constable, officer of excise or customs, &c., (see ante, 913, 914), if it do not appear upon the face of the record that the action was brought against him as such officer, for something done by him in the execution of his duty, then, upon obtaining a certificate to that effect from the judge, at or after the trial (e), or, in case of a nonsuit or nonpros, upon his making an affidavit of the fact, the court will allow him to enter a suggestion (ƒ) of it upon the record (g). And the same in all other cases where the defendant is entitled to double or treble costs (h). But unless the statute require it, it does not seem absolutely requisite that this suggestion should be entered (i); if it otherwise appear on the face of the record that the case is within the statute. of Conscience Acts. If an action be brought in one of the courts at Westminster Under Court for a cause of action which might have been sued for in the court of requests or court of conscience of any city, borough, or town, there is usually a clause in the statute creating the jurisdiction of the inferior court, by which it is provided, that if the plaintiff in the superior court recover any sum within the limits of the cognizance of the inferior court, he shall not be entitled to costs; or, if the defendant have a verdict, he shall be entitled to double costs (*). We shall not attempt, in a work of this description, to enumerate the provisions of this nature in all the statutes which establish courts of conscience; all that is here intended is, to state some general principles which the courts seem to have established upon the subject, and which are applicable to all these courts of conscience, unless expressly controlled by the words of the statute creating their jurisdiction, or by necessary implication. All these statutes have one common object, and should all, as far as possible, receive a uniform construction (1). The courts of conscience are, in general, restrained to debts or To what other demands certain, capable of being ascertained by mere Cases Court. computation (m). Consequently, in all other cases,-as, for in- Acts in gene 5 Dowl. 207, 8. C., the court refused to 464. (e) Harper v, Carr, 7 T. R. 448; 1 Doug. 307, 308, n., 8. C.: Devenish v. Mertins, 2 Str. 974: and see Atkins v. Banwell, 3 East, 92. (f) See a form of rule, Chit. Forms, 644. (g) Barton v. Miles, Hardw. 125; Ca. Pr. C. B. 16. (h) See Collins v. Poney, 9 East, 322: Bate v. Hodgetts, 1 Bing. 182: Wells v. Ody, 3 Dowl. 799; 2 C., M. & R. 185, 8. C. (i) See Wells v. Ody, 3 Dowl. 799; 2 C., M. & R. 128, S. C. It was a case on the Building Act. (Sed vide Tidd, 9th ed. 988). (k) See the forms of suggestions, &c., (1) Shadduk v. Bennett, 7 D. & R. 232. of Conscience ral extend. PART I. BOOK IV. stance, in an action on the case for negligence in driving a carriage(n), or in a special action of assumpsit for the breach of an agreement (o), or the like,-the defendant cannot plead the statute, nor will the court allow him to enter a suggestion upon the record, however trifling the damages may be (p). It is in general necessary, also, in order to sue in these courts of conscience, that the cause of action have arisen, and the defendant or plaintiff, or both, reside within the jurisdiction (q); but this depends entirely upon the wording of the statute in each particular case, and sometimes it may be otherwise (r). It would seem, that where the act of parliament makes no express provision as to the residence of the parties, as a general rule the plaintiff need not, but the defendant must, be resident within the jurisdiction (s). It is the amount of debt or damages found by the jury, and not as laid in the declaration, which is to determine whether it might have been sued for in the inferior court or not (t). And the fact of the cause being tried on a writ of trial does not affect the question (u). And although reduced below the limited sum by a payment in part (x), or, it seems, by payment into court (y), or by the plea of the Statute of Limitations (z), or by the plea of infancy, or other defence set up to the action (a), it is, in general, within the statute. But otherwise if reduced by a set-off (b), or tender (c), if pleaded. Merely pleading a tender, however, does not preclude the defendant from the benefit of the statute, when the original debt is under the limited (n) Lawson v. Moggridge, 1 Taunt. 396: see Melton v. Garment, 2 N. R. 84: Fost v. Coare, 2 B. & P. 588. (0) Jonas v. Greening, 5 T. R. 529: see Fornin v. Oswell, 1 M. & Sel, 393. (p) See Drew v. Fletcher, 1 B. & C. 283. (9) Welsh v. Troyte, 2 H. Bl. 29: Tubb v. Woodward, 6 T. R. 175: Smith v. O'Kelly, 1 B. & P. 76: Dillamore v. Caran, 1 Bing. 388; 8 Moore, 429, S. C.: Bailey v. Chitty, 5 Dowl. 307; 2 M. & W. 28, S. C. (r) See Busby v. Fearon, 8 T. R. 235: Barney v. Tubb, 2 H. Bla. 352 Jonas v. Greening, 5 T. R. 529: Rer v. Danser, 6 T. R. 242: Harwood v. Lester, 3 B & P. 617: Baildon v. Pitter, 3 B. & Ald. 210: Reeves v. Stroud, 1 Dowl. 399. Under the Middlesex Court of Requests Act, the plaintiff need not be resident within the jurisdiction (Pritchard v. M'Gill, 2 M. & W. 380); but the defendant must, and the cause of action must have arisen within it. (Wells v. Langridge, 5 Dowl. 509: Francis v. Ball, B. C., M. 1839; 3 J. 1077). But it seems that the affidavit in support of the application for a suggestion need not state that it arose within the jurisdiction, it rests with the plaintiff to shew this. (Bishop v. Marsh, C. P., M. 1839; 3 Jurist, 1000). As to what is seeking a live lihood, &c., within the meaning of the London Court of Conscience Act, see Double v. Gibbs, 1 Dowl. 583; 1 C. & M. 246, S. C., and cases there cited: Rice v. Legh, 2 Id. 105. Under the Gravesend Court of Requests Act, the plaintiff will not be deprived of costs, though the defendant reside within the jurisdiction of that court, if the cause of action accrued elsewhere. (Gray v. Soames, M. 1838; Bail Court, Q. B., Coleridge, J., 2 Jurist, 1040). (s) See Pritchard v. M'Gill, 2 M. & W. 380. (t) Cross v. Collins, 5 Bing. N. C. 194: Barnes v. Winkler, 2 C. & P. 345: Badiley v. Oliver, 1 Dowl. 598, and cases there cited in notes; 1 C. & M. 219, & C: Moore v. Jones, 2 Dowl. 38: Younger V. Wilsby, 6 Taunt. 542: Weston v. Donnety, Say. 273: Drew v. Coles, 1 Dowl 500: Baildon v. Pitter, 3 B. & Ald. 210: Braham v. Browne, 2 C. & J. 327: and see Shaddick v. Bennett, 7 D. & R. 229; 4 B. & C. 769, S. C. (u) Wells v. Langridge, 5 Dowl. 509: Turner v. Barnard, 5 Dowl. 170. (x) Walker v. Watson, 8 Bing. 414; 1 Moo. & Sc. 674, S. C.: Clark v. Asker, 8 East, 28. Horn v. Hughes, 1d. 347: Fourtain v. Young, 1 Taunt. 60: see Porter v. Philpot, 14 East, 344: M'Collam v. Carr, 1 B. & P. 223 Harsant v. Larkin, 3 B. & B. 257; 7 Moore, 68, S. C.: Abbey v. Lin, 5 Bing. 299; 2 Moo. & P. 534, S. C. (y) Turner v. Barnard, 5 Dowl. 170; 1 H. & W. 580, S. C.; vide Farrent v. Margan, 3 Dowl. 792: ante, 978. (2) Lord Huntingtower v. Heely, 7 D. & R. 369: Rotheray v. Munnings, 1 B. & Adol. 18 a. (a) Bateman v. Smith, 14 East, 301. (b) Pitts v. Carpenter, 2 Str. 1191: Groar v. Fisher, 3 Wils. 48: Jenkinson v. Marton, 1 M. & W. 300; 1 T. & G. 676; 5 Dowl. 74, S. C., which was on a trial before the sheriff. And see Gobed v. Birt, 2 Chit. 394: Cottle v. Langman, 9 Moore, 625: Bailey v. Chitty, 2 M. & Wels. 28: 5 Dowl. 307, S. C.: Jones v. Harris, 1 Dowl, 374. Aliter, if the set-off be not pleaded (Id.) (e) Heaward v. Hopkins, 2 Doug. 448: Waistell v. Atkinson, 3 Bing. 2: 11 Moore, 14, S. C.: Downes v. Ray, 1 H. & W. 649. |