Воок п. Service of the rule at a house where the defendant's family ar PART IV. still living, though he himself had gone away, has been hel How, in Vacation. Judgment, how entered after. sufficient, without leave of the court (c); and service by leav În vacation the rule may be obtained by application to a judge at chambers. For this purpose take out a summons for the defendant to shew cause why it should not be referred to one of the masters to compute principal and interest, &c. Serve a copy on the defendant's attorney, or on the defendant if he have not appeared; and if no cause be shewn, the judge will grant his fiat to one of the masters, to make out the rule (n). Take the order to the master; draw up the rule, and proceed as is abore directed. In some cases the judge might require the usual affidavit of the cause of action, and that interlocutory judgment has been signed. If your roll have been already carried in, one of the masters, or his clerk, will enter the judgment, upon your leaving the rule above mentioned with him for that purpose. Otherwise, you must get a roll, and enter the proceedings upon it (o), and then docket and carry in your roll (p). The declaration frequently contains other counts, besides the count or counts upon the bill (e) Payett v. Hill, 2 Dowl. 688. (h) Bank of England v. Atkins, 1 Chit. SECT. 3. of exchange, &c.; and, as damages are assessed upon the CHAP. IV. counts upon the bill of exchange, &c., alone, a remittitur damna as to the other counts must be entered on the roll, in entering the judgment (9). But, where in such a case payment has been made generally on account of the action after declarstion delivered, the plaintiff cannot enter a remittitur damna, nor can he have a rule to compute unless by consent (r). Where the roll contained an award of a writ of inquiry, and afterwards an assessment of damages by the court, upon a writ of error being brought for this cause, it was urged, on the authority of Blackmore v. Flemyng (s), that, by the award of the writ of inquiry, the plaintiff had made his election to have his damages ascertained by a jury, and could not afterwards retract, and have his damages assessed by the court; the court, however, affirmed the judgment (†). In what Cases necessary.] By stat. 8 & 9 W. 3, c. 11, s. 8, In what Casc "In all actions which shall be commenced or prosecuted in necessary. any of his majesty's courts of record, upon any bond or bonds, or on any penal sum, for non-performance of any covenants or agreements in any indenture, deed, or writing contained,' -[whether the covenant, &c., be contained in the same, or in any other deed or writing (u); and the statute extends to bonds, &c., for the payment of money by instalments (x), for the payment of an annuity (y), for the performance of an award (2), or for the performance of any other specific act, excepting for the payment of a sum of money in gross at a certain time, as post-obit bonds (a), and excepting other bonds for the payment of monies, which are provided for by the 9 4. c. 16, s. 13 (6), and excepting the case of a bail-bond (c), a (See Chit. Forms, 343: Fleming v. Langton, 1 Str. 532: Duperoy v. Johnson, T. R. 473: ante, 710: Heald v. Johnson, 2 Smith, 44. (r) Jones v. Sheil, 6 Dowl. 579. (7 T. R. 446. Gould v. Hammersley, 4 Taunt. 148. Collins v. Collins, 2 Burr. 824, 826: Hurst v. Jennings, 5 B. & C. 650; 8 D. & R. 424, 8. C. 15) Willoughby v. Swinton, 6 East, 550; Smith, 635, S. C.: see Masfen v. Touchet, W. Bl. 706, 958: Van Sandau v., B. & Ald. 214. VOL. II. (y) Walcot v. Goulding, 8 T. R. 126. (2) Welch v. Ireland, 6 East, 613; 2 (a) 2 Camp. 285. n.: Murray v. Earl of (c) Moody v. Pheasant, 2 B. & P. 446. E BOOK II. PART IV. replevin-bond (d), the bond of a petitioning creditor (e), and a bond for replacing stock (f), or a bond for payment of money by instalments, with a clause that all shall be due on one default (g), or indeed any bond where the damages to be assessed by the jury would be calculated to meet and satisfy the entire condition of the bond (h),]-" the plaintiff or plaintiffs may assign as many breaches as he or they shall think fit, and the jury, upon trial of such action or actions, shall and may assess not only such damages and costs of suit as have heretofore been usually done in such cases, but also damages for such of the said breaches so to be assigned, as the plaintiff upon the trial of the issues shall prove to have been broken; and that the like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions; and if judgment shall be given for the plaintiff on a demurrer, or by confession, or nihil dicit, the plaintiff upon the roll may suggest as many breaches of the covenants and agreements as he shall think fit; upon which shall issue a writ to the sheriff of that county where the action shall be brought, to summon a jury to appear before the justices or justice of assize or Nisi Prius"-[or now in cases within the 3 & 4 W. 4, c. 42, s. 16, post, 725, before the sheriff]-"of that county, to inquire of the truth of every one of those breaches, and to assess the damages that the plaintiff shall have sustained thereby; in which writ it shall be commanded to the said justices or justice of assize or Nisi Prius, that he or they shall make return thereof to the court from whence the same shall issue, at the time in such writ mentioned; and in case the defendant or defendants, after such judgment entered, and before any execution executed, shall pay unto the court where the action shall be brought, to the use of the plaintiff or plaintiffs, or his or their executors or administrators, such damages so to be assessed by reason of all or any of the breaches of such covenants, together with the costs of suit, a stay of execution of the said judgment shall be entered upon record; or if, by reason of any execution executed, the plaintiff or plaintiffs, or his or their executors or administrators, shall be fully paid or satisfied all such damages so to be assessed, together with his or their costs of suit, and all reasonable charges and expenses for executing the said execution, the body, lands, or goods of the defendant shall be thereupon forthwith discharged from the said execution, which shall likewise be entered upon record; but notwithstanding in each case such judgment shall remain, continue, and be as a further security, to answer to the plaintiff or plaintiffs, and his or their executors or administrators, such damages as shall or may be sustained for further breach of any covenant or covenants in the same indenture, deed, or writing contained; upon which the plaintiff or plaintiffs may have a scire facias upon the said judgment against the defendant, or against his heir, terretenant, or his executors or administrators, suggesting fore such cases do not fall within the rule (d) 2 Saund. 187, n. 2: Middleton v. 723. (e) Smith v. Broomhead, 7 T. R. 300: Smithey v. Edmonson, 3 East, 22. (f) Savile v. Jackson, 13 Price, 715. (g) James v. Thomas, 5 B. & Ad. 40, (h) See Smith v. Bond, 10 Bing. 125; 3 M. & Scott, 528, S. C. other breaches of the said covenants or agreements, and to summon him or them respectively to shew cause why execution should not be had or awarded upon the said judgment upon which there shall be the like proceeding as was in the action of debt, upon the said bond or obligation for assessing of damages upon trial of issues joined upon such breaches, or inquiry thereof upon a writ to be awarded in manner as aforesaid; and that, upon payment or satisfaction in manner as aforesaid of such future damages, costs, and charges as aforesaid, all further proceedings on the said judgment are again to be stayed, and so toties quoties, and the defendant, his body, lands, or goods, shall be discharged out of execution, as aforesaid." The defendant is accountable only to the extent of the penalty; and as soon as that is recovered, or if the defendant choose to pay it into court, the plaintiff can proceed no further, but, on the contrary, may be compelled to enter satisfaction on the record (i). The statute of 8 & 9 W. 3, was made in favour of defendants, and receives a liberal construction (j). It has been consequently ruled, that the statute is obligatory; and although it enacts, that the plaintiff "may" assign, "may" suggest, &c., yet the word "may" is compulsory, and the plaintiff must assign or suggest the breaches, otherwise the proceedings will be erroneous (k). The statute is confined only to actions of debt (?). It does not apply to a judgment entered up on a warrant of attorney to confess a judgment on a mutuatus, and this, though a bond be also given (m). Nor does it extend to cases at the suit of the crown (n). CHAP IV. SECT. 3. Before whom Executed.] The statute of 8 & 9 W. 3, which Before whom renders this writ of inquiry necessary, so far as it requires the Executed. writ of inquiry to be executed before the justices of assize or Nii Prius, is, in cases where breaches are suggested on the roll after a judgment for the plaintiff on demurrer, or by confession, or nil dicit, and perhaps in all cases where no issue is joined, altered by the recent act 3 & 4 W. 4, c. 42, s. 16, which, to prevent delay, enacts that all writs issued under 8&9 W. 3, shall, unless the court where such action is pending, or a judge of one of the said superior courts, shall otherwise order, direct the sheriff of the county where the action shall be brought to summon a jury to appear before such sheriff, instead of the justices or justice of assize or Nisi Prius of that county, to inquire of the truth of the breaches suggested, and assess the damages that the plaintiff shall have sustained thereby, and shall command the said sheriff to make return thereof to the court from whence the same shall issue at a day certain, in term or in vacation, in such writ to be mentioned; and such proceedings shall be had after the return of such writ, as are in the said statute in that behalf mentioned, in like manner as if such writ had been executed before a justice of assize or Nisi Prius." It seems that this latter act does (01 Saund. 58 a, n. 1: Branquin v. (k) Hardy v. Bern, 5 T. R. 636: Roles () Hardy v. Bern, 5 T. R. 637. (7) 1 Saund, 58 b, (n), 5th ed. (m) Ante, 683. (n) R. v. Peto, 1 Y. & J. 171. BOOK II. Service of the rule at a house where the defendant's family are PART IV. still living, though he himself had gone away, has been held sufficient, without leave of the court (c); and service by leaving the rule at the chambers of the defendant, and the person resident there stating that he had transmitted it to him, has been held sufficient (d). Where an attorney had been served with process at chambers, from which he afterwards went away to an unknown residence, a rule to compute was allowed to be served by leaving a copy at those chambers, (they being his last place of abode), and sticking up another in the Queen's Bench Office (e). It may be as well to observe, that no irregularity previous to the judgment can be shewn as cause against the rule; but a cross rule must be obtained to set aside the judgment; and pending which rule, the court will enlarge the rule to refer (f). In cases where a rule nisi only is granted, if no cause be shewn, get counsel to move to make the rule absolute, upon an affidavit of service (g). When you obtain the rule absolute, either in the first instance or after a rule nisi, draw it up with one of the masters, serve a copy of it on the defendant's attorney, or on the defendant, if he have not appeared (h). Also, if the defendant has appeared by himself or his attorney, serve on him a notice of the intended taxation of costs, one day or more before the taxation, as in other cases (i). Then take the rule absolute to one of the masters, who will thereupon compute the sum due to the plaintiff for principal and interest; tax the costs, and sign judgment as usual. You may then sue out execution as usual (k). In the Court of Common Pleas, it is necessary for the plaintiff to give notice to the defendant of the time appointed by the master for computing the principal and interest, in analogy to the practice upon writs of inquiry (1). But no such notice is requisite in the Queen's Bench or Exchequer (m). How, cation. in Va Judgment, how entered after. În vacation the rule may be obtained by application to a judge at chambers. For this purpose take out a summons for the defendant to shew cause why it should not be referred to one of the masters to compute principal and interest, &c. Serve a copy on the defendant's attorney, or on the defendant if he have not appeared; and if no cause be shewn, the judge will grant his fiat to one of the masters, to make out the rule (n). Take the order to the master; draw up the rule, and proceed as is above directed. In some cases the judge might require the usual affidavit of the cause of action, and that interlocutory judgment has been signed. If your roll have been already carried in, one of the masters, or his clerk, will enter the judgment, upon your leaving the rule above mentioned with him for that purpose. Otherwise, you must get a roll, and enter the proceedings upon it (o), and then docket and carry in your roll (p). The declaration frequently contains other counts, besides the count or counts upon the bill (e) Payett v. Hill, 2 Dowl. 688. (h) Bank of England v. Atkins, 1 Chit. (Warren v. Smith, 2 Dowl. 216). (i) See post, Book IV. Part I. Ch. 31. (k) See Chit. Forms, 344. (1) Branning v. Patterson, 4 Taunt. 487. (m) MS., K. B.: Huckfield v. Kendall, 1 Chit. Rep. 693. (n) Sce the form, Chit. Forms, 343. (0) See orm of the entry, Chit. Forms, 343. (p) See Chit. Forms, 343, 334. |