The defendants then heard the statement of the plaintiff in answer to A. W.'s complaint, 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. 8d.), 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 21. 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 are— First, 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 51. damages, immediately after the decision of this case, or otherwise as the court may think fit, and that judgment shall be entered accordingly. [Counsel's Signatures.] [See 1 Chit. Ar. Pr. 649.] BOOK II. PART I. 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."] Between A. B. plaintiff 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 day of , A.D. C. D. And the defendant, by D. A. his attorney, prays judgment ats. of the said writ and declaration, because he says that the said A. B. several 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. [tailor,] the defendant in this cause (b) maketh oath and C. D. of (a) It should seem that the 3 & 4 Will. 4, c. 42, s. 8, 2 Chit. Ar. Pr. 651, requires this statement; sed quære. (b) As to who may make the affidavit &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 Sworn [&c. as ante, 207.] in the county of ."] (a). C. D. 4. Replication to Plea of Non-joinder, denying the Joint Contract. In the Q. B. [or "C. P." or "Exch. of Pleas."] A. B. The day of A.D., And the plaintiff saith that his said writ and declaration by V. reason of any thing in the said plea above alleged, ought not to C. D. 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 that 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. except 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 behalf alleged:" and they assess the damages [&c. conclude as usual, see forms, ante, 92.] 8. Judgment and Execution for Plaintiff. [Same as usual. See forms, ante, 102, &c., 148, &c. See 2 Chit. Ar. Pr. 656.] (a) The 3 & 4 Will. 4, c. 42, s. 8, requires this statement. The residence must be stated with convenient certainty. 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 as in the form, ante, 108.] [See 2 Chit. Ar. Pr. 656.] 11. Execution for Defendant. [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 Nonjoinder, 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."] The day of -- 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, r. 20. BOOK II. PART II. PROCEEDINGS UPON DEMURRER. 1. A Demurrer to a Declaration (a). In the Q. B. [or "C. P." or "Exch. of Pleas."] The matters of law intended to be argued are specially set forth in the body of the demurrer, [or if the demurrer be a general demurrer, then state in this marginal note shortly one or more of the grounds of demurrer (b).] D. The day of A. D. 1840. โ And the defendant by D. A. his attorney ats. [or "in person"] says, that the said declaraB. Stion [or if to a count only, "the said count of the said declaration"] is not sufficient in law. count [If the demurrer be special, add the causes of demurrer thus:] And the defendant states and shows to the court here the following causes of demurrer to the said declaration [or "to the said of the said declaration"], that is to say, that &c. (here state the particular causes and conclude thus:) And also that the said declaration [or “ of the said declaration"] is in other respects insufficient, &c. [See 2 Chit. Ar. Pr. 658.] 2. Demurrer to a Plea, or Rejoinder. In the Q. B. [or "C. P." or " Exch. of Pleas."] B. V. D. The day of —~, A. D. count And the plaintiff saith, that the said plea [or "rejoinder”] is not sufficient in law. [If there be special grounds of demurrer, state them 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.] [The like, to a Replication.] [See the form, supra, No. 1, mutatis mutandis.] (a) By R. H. 4 W. 4, r. 14, the form of a demurrer shall be as follows:-The said defendant by his attorney [or in person,' &c. or plaintiff' says, that the declaration for plea' &c.] is not sufficient in law; showing the special causes of demurrer, if any." (b) As to the necessity for this statement in the margin of the demurrer, and how it is to be made, and the consequence of omission, see R. H. 4 W. 4, r. 2; 2 Chit. Ar. Pr. 658. |