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The defendants then heard the statement of the plaintiff in answer to A. W.'s coinplaint, and which did not satisfy the defendants that the said wages were not due as deposed by A. W. The defendants therefore ordered and adjudged him the plaintiff to pay the same (21. 2s. Sd.), together with 4s. 6d. costs, forthwith. The plaintiff then stated that he could not pay those monies, and that he had not sufficient goods and chattels whereon the same could be levied by distress.
The defendants then committed the plaintiff to prison, by warrant in writing under their hands and seals, for two calendar months, unless the said sums of 2l. 2s. 8d. and 4s. 6d. should be sooner paid, and the following is a copy of that warrant. [Here set it out.]
The plaintiff remained in prison eight days and then paid the said monies and was discharged.
The questions for the opinion of the court areFirst,—Whether the defendants were empowered by the statute of the 20 Geo. 2, c. 19, and the 4 Geo. 4, c. 34, or by any other statute or statutes, to order and adjudge the plaintiff to pay the said wages or sums of 21. 2s. 8d. and 4s. 6d, in manner before mentioned. Secondly,—Whether upon non-payment of those monies, and upon
the plaintiff's confession that he had not sufficient goods and chattels whereon the same might be levied, the defendants were empowered by the statute 5 Geo. 4, c. 18, or by any other statute or statutes, to commit the plaintiff to prison for two calendar months, unless the said monies should be sooner paid.
If the court shall be of opinion in the affirmative thereof, then the plaintiff agrees that a judgment shall and may be entered against him of nolle prosequi immediately after the decision of this case, or otherwise, as the court may think fit; but if the court shall be of a contrary opinion, then the defendants agree that judgment shall be entered against them by confession for 5l. damages, immediately after the decision of this case, or otberwise as the court may think fit, and that judgment shall be entered accordingly.
[Counsel's Signatures.] [See 1 Chit. Ar. Pr. 649.]
PROCEEDINGS UPON PLEAS IN ABATEMENT.
1. Affidavit of Misnomer, to ground Application to compel an Amendment
of Declaration for it, &c. In the Q. B. [or “C. P.” or “ Exch. of Pleas.”]
A. B. plaintiff
C. D. (sued as
C. F.) defendant. C. D. of in the county of the defendant, and against whom the plaintiff hath declared by the name of C. F., maketh oath and saith, that he is named and called by the name of C. D., and by the surname of D. hath always hitherto been named and called; and that he is not nor never was called or known by the said surname of F. (or if the misnomer be in the christian name alter this accordingly.] Sworn [&c. as ante, 207.]
[See 2 Chit. Ar. Pr. 652.]
2. Plea in Assumpsit, of Non-joinder of a Co-defendant. In the Q. B. (or “C. P.” or “ Exch. of Pleas."]
The C. D. And the defendant, by D. A. his attorney, prays judgment of the said writ and declaration, because he says
that the said A. B. Sseveral alleged promises in the said declaration mentioned, were and each of them was made by the defendant jointly with one E. F., who is still living, and who [at the time of the commencement of this suit(a) was and still] is resident within the jurisdiction of this court, and not by the defendant alone; and this the defendant is ready to verify; wherefore inasmuch as the said E. F. is not named in the said writ and declaration together with the defendant, the defendant prays judgment of the said writ and declaration, and that the same may be quashed, &c.
[See 2 Chit. Ar. Pr. 651, &c.]
3. Affidavit of Truth of Plea in Abatement. In the Q. B. (or “C. P.” or “Exch. of Pleas."]
Between A. B. plaintiff and C. D. defendant. C. D. of (tailor,] the defendant in this cause (6) maketh oath and
(a) It should seem that the 3 & 4 Will. 4, c. 42, s. 8, 2 Chit. Ar. Pr. 65), requires this statement; sed
(b) As to who may make the affi. davit &c., see 2 Chit. Ar. Pr. 654.
saith, that the plea hereunto annexed is true in substance and fact (and if the plea be of a non-joinder of a party who ought to be joined as a defendant, add " and that E. F. in the said plea within named, resides at No. ---, in street, in the parish of in the county of -"] (a). Sworn [&c. as ante, 207.]
4. Replication to Plea of Non-joinder, denying the Joint Contruct. In the Q. B. (or “C. P.” or “Exch. of Pleas.")
day of A. B.) And the plaintiff saith that his said writ and declaration by
c. D. S be quashed; because he saith that the said several promises were not made by the defendant jointly with the said E. F. in manner and form as the defendant hath above in his said plea alleged, and this the plaintiff prays may be inquired of by the country, &c.
5. Issue. [Same as usual, see forms, ante, 43, &c. except thut the award of venire is thus:] Thereupon as well to try the said issue above joined between the parties, as to inquire of and assess the damages of the plaintiff on occasion of the not performing of the said promises (as the form of action is) in the said declaration mentioned, in case the said issue shall be found for the plaintiff, the sheriff is commanded that he cause to come here on the day of
-, twelve &c., by whom &c., and who neither &c., to recognize &c., because as well &c.
6. Jury Process. [Same as forms, ante, 68, &c. ercept that instead of the words “in an action on promises” &c., say as well to try the issue joined between them in an action on promises," (as the form of action is, )] as to inquire of and assess the damages of the plaintiff, by reason of the not performing of the said promises (as the form of action is) in the declaration in that behalf mentioned, in case the said issue shall be found for the plaintiff [&c. concluding the jury process as in the forms, ante, 68.]
7. Postea for Plaintiff [Same as the forms, ante, 92, to the asterisk *, and then state the negative or affirmative of the issue as it is found for the plaintiff, and in the terms adopted by the pleadings, which in a plea of non-joinder may be thus : ] “ say upon their oath that the said several promises in the said declaration mentioned, were not made by the defendant jointly with the said E. F. in manner and form as the defendant hath within in that bebalf alleged:” and they assess the damages [&c. conclude as usual, see forms, ante, 92.]
8. Judgment and Erecution for Plaintiff [Same as usual. See forms, ante, 102, &c., 118, &c. See 2 Chit. Ar. Pr. 656.]
(a) The 3 & 4 Will. 4, c. 42, s. 8, inust be stated with convenient cerrequires this statement. The residence tainty. See 2 Chit. Ar. Pr. 651.
9. Postea, for Defendant. [Same as the forms, ante, 87, to the asterisk, and then state the negative or affirmative of the issue as it is found for defendant, and in the terms adopted by the pleadings, which in a plea of non-joinder may be thus:] "say upon their oath, that the said several promises in the said declaration mentioned, were made by the defendant jointly with the said E. F. in manner and form as the defendant hath within alleged." Therefore &c.
10. Judgment for Defendant. Therefore it is considered that the said writ be quashed &c., and that the defendant do go thereof without day &c. And it is further considered by the court here, that the defendant do recover [&c. conclude us in the form, ante, 108.]
[See 2 Chit. Ar. Pr. 656.]
11. Erecution for Defendunt. [Same as usual. See the forms, ante, 201.]
12. Proceedings on a Demurrer to a Plea in Abatement. [See forms, post, 304.]
13. Commencement of a Declaration after a Plea in Abatement of Non
joinder, where the new Action is against the Party not joined in the
former one. (a) In the Q. B. (or “C. P." or " Exch. of Pleas."]
A.D. 1840. (Venue.)- A. B. by E. F. his attorney, (or “ in his own proper person &c."] complains of C. D. and G. H. who have been summoned to answer the said A. B., and which said C. D. has heretofore pleaded in abatement the non-joinder of the said G. H. &c.
[See 2 Chit. Ar. Pr. 657, &c.]
(a) This form is prescribed by Rule H. T. 4 Will. 4, 1. 20.
PROCEEDINGS UPON DEMURRER.
1. Demurrer to a Declaration (a). In the Q. B. [or “C. P.” or “Exch. of Pleas.”]
A. D. 1840. The matters of D. 7. And the defendant by D. A. bis attorney law intended to be ats. [or" in person"] says, that the said declaraargued are specially B. tion (or if to a count only, “ the said set forth in the body count of the said declaration”] is not sufficient in of the demurrer, (or law. if the demurrer be a general demurrer, [If the demurrer be special, add the causes of dethen state in this murrer thus :) And the defendant states and shows marginal note shortly to the court here the following causes of demurrer one or more of the to the said declaration (or “to the said count grounds of demur- of the said declaration"], that is to say, that &c. rer (b).]
(here state the particular causes and conclude thus :)
[See 2 Chit. Ar. Pr. 658.]
2. Demurrer to a Plea, or Rejoinder. In the Q. B. (or “C. P.” or “ Exch. of Pleas.")
--, A.D. — B. And the plaintiff saith, that the said plea (or “ rejoinder”) is not
sufficient in law. [If there be special grounds of demurrer, state D. Sthem as directed in the preceding form. Take care also to state in the margin of the demurrer, whether general or special, the grounds for it, as there also is directed, and see the notes to that form.]