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Section III.

The REPLICATION, &c.

1. Rule to reply or surrejoin in Q. B.

In the Q. B.
B. Until

V.

is given to the plaintiff to reply (or “surrejoin,” &c.]

Entered. [See 1 Chit, Ar. Pr. 195.]

D.

2. Entry of such Rule. In the Q. B.

Until - is given to the plaintiff to reply (or “surrejoin,"] otherwise let a non-pros be entered.

By the Court. D.

[See 1 Chit. Ar. Pr. 195.]

B.

V.

3. Precipe for Rule to reply or surrejoin, in C. P. or Exchequer. In the C. P. (or “ Exch. of Pleas.") B. Rule to reply (or “ to surrejoin,” &c.]

D. A. defendant's attorney (or “ agent."] D.

V.

4. Rule to rejoin or rebut, in Q. B.

In the Q. B.
B.
2

Until
V.
D.

is given to the defendant to rejoin (or “rebut,” &c.]

Entered. [See 1 Chit. Ar. Pr. 197.1

5. Præcipe for Rule to plead to New Assignment in Q. B. In the Q. B. B. Rule to plead to new assignment.

P. A. plaintiff's attorney (or "agent."] [See 1 Chit. Ar. Pr. 197.]

v.

D.

B.?

6. Rule thereon. Unless the defendant shall plead to the new assignment within four days, let judgment be entered for the plaintiff.

[See 1 Chit. Ar. Pr. 197.] By the Court

V.

D.

7. Precipe for Rule to rejoin or rebut, or plead to new Assignment in C. P.

or Exchequer. In the Q. B. (or C. P.” or “ Exch. of Pleas."] B. 2 Rule to rejoin, [or “to plead to new assignment,” or “to re

but," &c.] D.

P. A. plaintiff's attorney (or "agent."]

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V.

8. Term's Notice of Intention to proceed. In the Q. B. (or “ C. P.” or “ Exch. of Pleas."] B. Take notice, that the defendant (or “plaintiff"] intends to pro

ceed in this cause after the end of the ensuing term, by giving a D.) rule to reply, (or “ rejoin,” &c.] herein. Dated the -day of 1839.

Your's, &c.
P. A. plaintiff's (or, D. A. defendant's']

attorney (or “agent.”] To Mr. D. A. defendant's (or “ P. A. plaintiff's”]

attorney (or "agent."]

[See 1 Chit. Ar. Pr. 196.]

9. Similiter to Plea concluding to the Country. In the Q. B. (or “ C. P.” or “ Exch. of Pleas.”]

On the
day of

A. D. 1839.
B. And the plaintiff as to the plea (or “ pleas”) of the defendant,

by him above pleaded, and whereof he hath put himself upon the D.) country, doth the like.

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10. Replication to a Plea of Judgment recovered in another Court.

[See post, Book II. Part III.]

Section IV.
The Issue, &c.

year of

1. Issue, in an Action commenced by Writ of Summons, Capias, or

Detainer (a).
In the Q. B. (or “ In the C. P.” or “In the Exchequer of Pleas.”]

The (date of declaration) day of — in the

our Lord 18(Venue.)- A.B. by E. F. his attorney (or “ in his own proper person,' of " by E.F. who is admitted by the court here to prosecute for the said A.B., who is an infant within the age of 21 years, as the next friend of the said A.B.as the case may be,] complains of C.D., who has been summoned to answer the said A.B. (or “arrested,” or detained in cus

(a) This is the form prescribed for should state the commencement of the all the courts by R. H. 4 Will. 4, in action to have been by writ of sumactions commenced by the process mons, even though a writ of capias, prescribed by the 2 Will. 4, c. 39. It under 1 & 2 Vic. c. 110, have been must of course be altered to meet the issued in the course of the action. circumstances of each case. For forms The forms as to writs of capias and of the issue in an action of ejectment detainer are still to be used in actions see post, in replevin, post, in scire fa- commenced by those writs before Ist cias, post. No continuances or impar. Oct. 1838; and in proceedings under lances should be entered, see 1 Chit. s. 85 of 1 & 2 Vic. c. 110, against inAr. Pr. 200. It must be here observed solvents, should such proceedings be that in actions commenced by sum- carried on to issue, see ante, 26. mons since 1st Oct. 1838, the issue

day of

tody"] by virtue (or “served with a copy,” as the case may be] of a writ issued on (date of the first writ) the

in the year of our Lord 18—, out of the court of our lady the queen, before the queen berself at Westminster,” (or “out of the court of our lady the queen, before her justices at Westminster,” or “out of the court of our lady the queen before the Barons of her Exchequer at Westminster," as the case may be] (a). For that [&c. Copy the declaration from these words to the end, and the plea and subsequent pleadings, with the dates and counsel's signature (if any) to the joinder of issue, and conclude in the same line, thus:]

Thereupon the sheriff is commanded that he cause to come here, on the

(6), twelve &c., by whom &c., and who neither &c., to recognise &c., because as well &c.

day of

2. Award of Venire where there are several Issues in fact (c). Therefore as well to try this issue, as the said other issue (or issues”] above joined between the parties aforesaid, the sheriff is commanded (&c. conclude us supra).

3. The like, where there are several Defendants, who plead separately (c).

Therefore as well to try this issue, as the said other issue (or “issues”] above joined between the plaintiff and the said E.F., the sheriff is commanded, [&c. conclude as supra.]

4. Issue, where one of several Defendants has suffered Judgment by

Default in an Action on Promises (d). { Commence as in the form, ante, 43, No. 1, and after copying the declaration, the plea, the issue thereon, us there directed, proceed thus:] And the said E.F. in his proper person comes and says nothing in bar or preclusion of the said action of the plaintiff, whereby the said E.F. remains therein undefended against the plaintiff

. Wherefore the plaintiff ought to recover against the said E.F. his damages by reason of the premises. But because it is unknown to the court(e) here what damages the

(a) The form of the action need make it returnable " forthwith.(Wilnot be inserted. (See Ball v. Hamlet, liams v. Calverly, 14 Legal Obser. 13.) 3 Dowl. 188; 1 C. M. & R. 575, (c) It would seem that the form S.C.; Fergusson v. Mitchell, 4 Dowl. preceding this would suffice for such a 513; 1 Tyr. & G. 179; 1 Gale, 346 ; case, and it is most commonly adopted 2 C. M. & R. 687, S.C.) But in an in practice. action of debt, where the declaration (d) See the form of the judgment, commences with the usual demand of post. a sum certain, such demand should (e) In the Common Pleas it is perhaps be inserted in the commence- usual, instead of this word “court," ment of the issue.

to say “justices,” and in the Exche(b) The form given by the rule of quer to say “ barons,” but this variaH. T. 4. Will. 4, leaves this space for tion seems wholly unnecessary, and the return-day of the venire. It seems there seems no sound reason why the that although the 3 & 4 Will 4, c. 67, forms in the respective courts should s. 2, allows the venire to be made re- not be uniform in this respect. In the turnable forthwith, a particular day forms prescribed by the New Rules of must be named on which it is return- H. T. 4 Will. 4, it will be observed able, and that it will not be correct to that this variation is not adopted.

plaintiff hath sustained by reason thereof; and because it is also at present unknown to the court here whether the said C.D. will be convicted of the premises upon which the said issue is above joined between the plaintiff and the said C.D. or not: and because it is convenient and necessary that there be but one taxation of damages in this suit; therefore let such taxation, and the giving of judgment in this behalf against the said E.F., be stayed until the trial or determination of the said issue above joined between the plaintiff and the said C.D. And as well to try the said issue above joined between the plaintiff and the said C.D. as to inquire against the said E.F. what damages the plaintiff hath sustained in this behalf, the sheriff is commanded [&c. conclude as ante, 44, No. 1.]

5. Issue, where Defendant suffers Judgment as to Part in an Action on

Promises (u). (Comnience as in the form, ante, 43, No. 1; and after copying the declaration and defendant's plea, (which in the case for which this form was drauen uns non assumpsit, ercept us to £30,) proceed thus:] And as to the said sum of £30, parcel of the said several sums of money in the said declaration mentioned, the defendant says nothing in bar or preclusion of the said action of the plaintiff with respect to the said sum of £30, whereby the defendant remains therein undefended against the plaintiff in respect thereof. Wherefore the plaintiff ought to recover against the defendant his damages, on occasion of the not performing the said promises of the defendant with respect to the said sum of £30. But because it is unknown to the court (6) here what damages the plaintiff hath sus. tained 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 be stayed until the trial of the said issue above joined between the said parties. And as well to try the said issue as to inquire of and assess the damages which the plaintiff hath sustained by reason of the not performing of the said promises of the defendant with respect to the said sum of £30, parcel of the said several sums of money in the said declaration mentioned, the sheriff is commanded, [&c. conclude as ante, 44, No. 1.]

6. The like, in Debt. [Commence as in the form, unte, 43, No. 1, and after copying the decluration and plea, proceed thus:] And as to the said sum of £30, parcel of the said sum above demanded, the defendant says nothing in bar or preclusion of the said action of the plaintiff, whereby the defendant remains therein undefended against the plaintiff in respect thereof. Wherefore the plaintiff ought to recover against the defendant the said sum of £30, and also his damages which he hath sustained on occasion of the detaining thereof. But because [it is unknown to the court here what damages the plaintiff hath sustained on occasion of the detaining thereof, and be

(a) See the form of the judgment, there seems no sound reason why the pest.

forms in the respective courts should (6) In the Common Pleas it is not be uniform in this respect. In the usual, instead of this word “court,” forms prescribed by the dew Rules of to say "justices," and in the Exche, H. T. 4 Will. 4, it will be observed quer to say " barons," but this varia- that this variation is not adopted. tion seems wholly unnecessary, and

cause(a)] 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 be stayed until the trial of the said issue above joined between the said parties. And (as well (a)] to try the said issue [as to inquire of and assess the damages which the plaintiff' hath sustained on occasion of the de-. taining of the said sum of £30, parcel of the said sum above demanded (a)] the sheriff is commanded [&c. conclude as ante, 44, No. 1.]

7. The like, in Trespass (6). [Commence as in the form, ante, 43, No. 1, and after copying the declaration and plea, or rejoinder, proceed thus : ] And the defendant, as to the residue of the trespasses in the said declaration mentioned, (or “ as to the several trespasses above newly assigned,"] says nothing in bar or preclusion of the said action of the plaintiff

, whereby the defendant remains therein undefended against the plaintiff in respect thereof. Wherefore the plaintiff ought to recover against the defendant his damages by him sustained on occasion of the said residue of the said trespasses, (or “of the said several trespasses above newly assigned :"] But because it is unknown to the court (c) here what damages the plaintiff hath sustained on occasion thereof; and because it is convenient and necessary that there be but one taxation of damages in this suit; therefore let the giving of judgment in this behalf be stayed, until the trial of the said issue above joined between the parties aforesaid: And as well to try the said issue as to inquire of and assess the damages which the plaintiff hath sustained on occasion of the committing of the said residue of the said trespasses, or “ of the said several trespasses above newly assigned,”] the sheriff is commanded [&c. conclude as ante, 44, No. 1.)

8. Award of Venire, where there are several Issues, one triable by the

Country, and another by the Court, on Nul tiel Record. Therefore as well to try this issue (the issue in fact) as to inquire what damages the plaintiff hath sustained on occasion of the premises, whereupon the said other issue is above joined between the parties aforesaid, to be tried by the record, in case the said last-mentioned issue shall happen to be found for the plaintiff, the sheriff is commanded [&c. conclude as unte, 44, No. 1.]

9. Award of Venire, where there are Issues in Law and in Fact, and you

intend trying the Issues in Fact first (d). [Commence as in the form, ante, 43, No. 1, and after the entry of all the pleadings, including the demurrer and joinder, proceed with the award of venire thus:] And because it is convenient and necessary that there be but one taxation of damages in this suit; thereupon, [as well (e)] to try the said issue above joined between the said parties, to be tried by the country, [as to inquire what damages the plaintiff hath sustained by occasion of the premises whereof the said parties have put themselves upon the

(a) Perhaps as this is a form in debt, the parts between brackets [ ] (relating to the assessment of damages) might be omitted.

(b) See a form of judgment, post. (c) See ante, 45, n. (b).

(d) This is necessary, Codrington v. Lloyd, i Per. & D. 157.

(e) Perhaps in debt the parts of this form between brackets may be omitted.

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