8. Judgment in Assumpsit where there is Judgment by Default as to one Count and Issue in Fact as to the Residue, which is found for Plaintiff (a). [Proceed as in the form, ante, 328, No. 1, to the end of the issue, and then on a new line, thus:] And on the day of A. D. 1840 (day of signing interlocutory judgment), as to the said [first] count of the said declaration, the defendant says nothing in bar or preclusion of the said action of the plaintiff, with respect to the said [first] count, whereby the plaintiff remains therein undefended against the defendant in respect thereof; wherefore the plaintiff ought to recover against the defendant his damages on occasion of the premises in the said [first] count mentioned. But because it is unknown to the court here what damages the plaintiff hath sustained on occasion thereof; and because it is convenient and necessary that there be but one taxation of the damages in this suit: Therefore let the giving of judgment in this behalf against the defendant be stayed, until the trial of the said issue above joined between the said parties. And thereupon as well to try the said last-mentioned issue, as to inquire of and assess the damages which the plaintiff hath sustained by reason of the [not performing of the said promise] in the said [first] count of the said declaration mentioned, the sheriff is commanded, [&c. proceed as in the award of the venire, as ante, 43, No. 1, then proceed in the entry as directed, ante, 92, to these words in the postea], being chosen, tried, and sworn, as to the said issue within joined between the parties, say upon their oath that the defendant did promise in manner and form as the plaintiff hath within in that behalf complained against him: And they assess the damages of the plaintiff, as well by reason of the not performing the said several promises in the said [second and subsequent] counts of the said declaration within-mentioned, as by reason of the not performing the said promise in the said [first] count of the said declaration within mentioned, over and above his costs and charges by him about his suit in this behalf expended, to £―, and for those costs and charges to 40s. Therefore, [&c. then conclude stating the judgment as usual. See ante, 102, &c.] 9. Judgment in assumpsit, where one Defendant suffers Judgment by Default and the other pleads to Issue, and the Issue is found for Plaintiff (b). [Proceed as in the form, ante, 328, No. 1, to the end of the issue, and then, on a new line, thus:] day And the said E. F. in his proper person says nothing in bar or preclusion of the said action of the plaintiff, whereby the plaintiff remains therein undefended against the said E. F.: Wherefore, on the of ——, A.D. 1840 (day of signing interlocutory judgment), the plaintiff ought to recover against the said E. F. his damages on occasion of the premises. But because it is unknown to the court here what damages the plaintiff hath sustained on occasion thereof, and because it is convenient and necessary that there be but one taxation of the damages in this suit, therefore let the giving of judgment in this behalf against the said E. F. be stayed, until the trial of the said issue above joined between the (a) See form of award of venire in such a case, ante, 45, No. 5. (b) See a form of award of venire in such a case, ante, 44, No. 4. plaintiff and the said C. D., and thereupon as well to try the said issue so joined, as to inquire of and assess the damages which the plaintiff hath sustained by reason of the [not performing the] above promises by the said C. D. the sheriff is commanded [&c. proceed as in the award of the venire, as ante, 44, then continue the entry as directed, ante, 92, to these words in the postea], being chosen, tried, and sworn*, say upon their oath that the said C. D. did promise in manner and form as the plaintiff' hath within complained against him; and they assess the damages of the plaintiff by reason of the not performing the promises within mentioned, as well against the said C. D. as against the said E. F., over and above his costs and charges by him about his suit in this behalf expended, to £, and for those costs and charges to 40s. Therefore [&c. conclude, stating the judgment as in ordinary cases. See ante, 102.] 10. Judgment in an Action ex delicto, where one Defendunt suffers Judgment by Default, and the other pleads to Issue, and the Issue is found for him (a). [Proceed as directed in the preceding form, mutatis mutandis, to the asterisk*, and then thus:] say upon their oath that the said C. D. is not guilty of the several grievances [or "trespasses"] within laid to his charge in manner and form as the plaintiff hath within complained against him: and they assess the damages of the plaintiff against E. F., by reason of the premises within mentioned, over and above his costs and charges by him about his suit in this behalf expended, to £- and for those costs and charges to 40s. Therefore [&c. conclude, stating the judgment as in the form, ante, 107, Nos. 19, 20.] 11. The like, in Action ex contractu (b). [Proceed as directed in the form, ante, 332, No. 9, to the asterisk*, and then thus:] say upon their oath that the said C. D. did not promise in the manner and form as the plaintiff hath within complained against him. Whereupon the said jurors are discharged from inquiring against the said E. F. what damages the plaintiff hath sustained by reason of the premises within mentioned. Therefore it is considered that the plaintiff take nothing by his said writ, but that he be in mercy &c.; and that the said E. F. do go thereof without day, &c. And it is further considered by the court here that the said C. D. do recover [&c. conclude, stating the judgment for the defendant, who succeeded on the issue, as ante, 108, No. 23.] 12. Judgment by Non sum informatus, in Assumpsit (c). [Proceed as directed, ante, 328, to the end of the declaration, and then, on a new line, thus:] And on the day of A. D. 1840 (day of signing interlocutory judgment), the defendant, by D. A. his attorney, comes, and the plaintiff prays that the defendant may answer his said declaration; whereupon the said attorney of the defendant says, that he is not informed by the de (a) See form of award of venire, ante, 46, No. 7. (b) See 2 Chit. Ar. Pr. 701; and see a form of award of venire, ante, 45, No. 5. (c) See 2 Chit. Ar. Pr. 700. fendant of any answer to be given for him to the plaintiff in the premises, nor doth he say any thing in bar or preclusion of the said action of the plaintiff, whereby the plaintiff remains therein undefended against the defendant t; wherefore the plaintiff ought to recover against the defendant his damages on occasion of the premises: But because it is unknown [&c. proceed, stating the writ of inquiry, as in judgment by nil dicit, as ante, 328.] 13. The like, in Debt. [Proceed as in the preceding form to the daggert, and then thus:] Therefore it is considered that the plaintiff do recover against the defendant his said debt [&c. conclude as in the form in debt, ante, 329, No. 2.] 14. Docket Papers, in Q. B. (a). The entry [or "futher entry"] of P. A. gentleman, one &c. on the day of -, A. D. 1840. (Venue.) Judgment by nil dicit between A. B. plain-Roll S(its number.) (Venue. Judgment by default in case (or as the plea is) be- Roll. tween A. B. plaintiff and C. D. defendant, for £ damages and costs. S1877. 15. Entries on Docket Roll, in C. P. (a). Nil dicit [or "says nothing"] in case [or "debt," or as the plea is.] (Venue. A. B. C. D. plaintiff, Roll. defendant. 3845. Non sum informatus [or "not informed"] in case [or debt," or as the plea is.] (Venue.) A. B. C. D. (a) Docketing under 4 & 5 W. & M. c.20, is now abolished, and registra plaintiff, Roll. defendant. 3847. tion is substituted for it by 2 & 3 Vict. c. 11, s. 1. See 1 Chit. Ar. Pr. 338. CHAPTER IV. WRIT OF INQUIRY, &c. SECT. I.-Writ of Inquiry in Ordinary Cases, 335 to 341. SECTION I. WRIT OF INQUIRY IN ORDINARY CASES. 1. Writ of Inquiry. Victoria, by the grace of God of the united kingdom of Great Britain and Ireland queen, defender of the faith, to the sheriff of greeting: Whereas A. B. lately in our court before us [or in C. P. " before our justices," or in Exch. " before the barons of our Exchequer"] at Westminster, by P. A. his attorney, [or if in person say, "in his own proper person,"] complained of C. D. who was summoned [as in the commencement of the declaration], to answer the said A. B. in an action on promises (or as the form of action is): For that whereas [&c. here recite the declaration], to the damage of the said A. B. of £- as he said, and therefore he brought suit, &c. And such proceedings were thereupon had in our said court at Westminster aforesaid, that the said A. B. ought to recover against the said C. D. his damages on occasion of the premises: But because it is unknown to our said court what damages the said A. B. hath sustained by means of the premises aforesaid; therefore we command you, that by the oath of twelve good and lawful men of your bailiwick you diligently inquire what damages the said A. B. hath sustained, as well by means of the premises aforesaid, as for his costs and charges by him about his suit in this behalf expended, and that you send to us [or in C. P. " to our justices," or in Exch. "to the barons of our Exchequer"] at Westminster, on -(a), the inquisition which you shall thereupon take, under your seal, and the seals of those by whose oath you shall take that inquisition, together with this writ. Witness (name of chief justice, or in Erch. of chief baron), at Westminster, the day of in the year of our reign (b). [See 2 Chit. Ar. Pr. 708, 709.] (a) As to the return, see 2 Chit. Ar. Pr. 707. 2. The like, into a County Palatine. Victoria, by the grace of God of the united kingdom of Great Britain and Ireland queen, defender of the faith, to our chancellor of our county palatine of Lancaster [or "Durham (a)], or his deputy there, greeting: Whereas A. B. lately in our court [&c. as in the preceding form to the asterisk*.] And such proceedings were thereupon had in our said court at Westminster aforesaid, that the said A. B. ought to recover against the said C. D. his damages on occasion of the premises: But because it is unknown to our said court what damages the said A. B. hath sustained by means of the premises aforesaid; therefore we command you, that by our writ, under the seal of our said county palatine, to be duly made and directed to the sheriff of the same county, you command the said sheriff, that by the oath of twelve good and lawful men of his bailiwick he diligently inquire what damages the said A. B. hath sustained, as well by means of the premises aforesaid, as for his costs and charges by him about his suit in this behalf expended; and that you send to us [or in C. P. "to our justices," or in Exch. "to the barons of our Exchequer"] at Westminster, on the inquisition which the said sheriff shall thereupon take, under his seal, and the seals of those by whose oath he shall take that inquisition, together with this writ. Witness (name of chief justice, or in Exchequer of chief baron), at Westminster, the in the year of our reign. day of 3. Writ of Inquiry in Trespass, after Plea of Not Guilty, and a Nolle Prosequi as to Part, and Judgment by Nil Dicit for the Residue of the Trespasses. [As in the form, ante, 335, to the end of the recital of the declaration, and then as follows:] And the said C. D., by D. A. his attorney, as to all the said several supposed trespasses in the said declaration mentioned, except the assaulting and beating [&c.] said that he was not guilty thereof, in manner and form as the said A. B. had above thereof complained against him and of this the said C. D. put himself upon the country &c. And as to the said assaulting and beating [&c.] the said C. D. said nothing in bar or preclusion of the action of the said A. B. in respect of the said last-mentioned trespasses, whereby the said A. B. remained therein undefended against the said C. D.: And thereupon the said A. B. freely in court said, that he would not further prosecute his suit against the said C. D. for the residue of the trespasses in the said declaration mentioned; and he prayed judgment, and his damages by him sustained on occasion of the said assaulting and beating [&c.] to be adjudged to him: And such proceedings were thereupon had in our said court, that the said A. B. ought to recover against the said C. D. his damages on occasion of the trespasses last aforesaid: But because it is unknown to our said court what damages the said A. B. hath sustained on occasion of the trespasses last aforesaid: therefore we command you &c. [as ante, 335, except instead of saying "premises last aforesaid," say "trespasses last aforesaid"], and the inquisition which you shall thereupon take &c. [conclude as in the form, ante, 335.] (a) See as to Durham, ante, 21, n. (b); and 1 & 2 Vict. c. 110, s. 3. |