CHAPTER XXX. AMENDMENT. 1. Summons by Defendant to obtain a Judge's Order to amend a Misnomer in Declaration. [Commence and conclude as usual,] to show cause why the declaration in this cause should not be amended at the plaintiff's cost, by inserting therein the defendant's right name, E. D., instead of the wrong name, C. D. [See 2 Chit. Ar. Pr. 652.] 2. Affidavit in support thereof. In the Q. B. [or "C. P." or "Exch. of Pleas."] A. B. plaintiff against E. D. (sued by the name of C. D.) defendant. E. D. of the above-named defendant, against whom the above named plaintiff hath declared in this suit by the name of C. D., maketh oath and saith, that his right and true name is E. D., and that he has always been called or known by that name, and that he has never been called or known by the name of C. D. Sworn [&c. as ante, 207.] 3. Rule to amend in Q. B. or Exchequer. In the Q. B. [or "Exch. of Pleas."] B. V. D. the day of ➖, A. D. E. D. [Commence the rule as usual, see the forms, post, 649, and then thus:] It is ordered that the plaintiff have leave to amend his declaration, &c. [or "the defendant to amend his plea"] &c. by inserting [or" striking out"] &c. (stating the nature of the amendment) upon payment of costs, to be taxed by the master [if so directed.] Upon the motion of Mr. By the Court. 4. The like, after Argument in C. P. In the Common Pleas. V. D. B. Upon hearing counsel on both sides in the matter of the demurrer in law depending between the said parties, it is ordered that the plaintiff have leave to amend his declaration &c. [or "the defendant his plea" &c.] in this cause, upon payment to the defendant [or "plaintiff"] or his attorney, of his costs of and occasioned by such amendment, together with his costs of and occasioned by this application to the court, to be taxed by one of the masters of this court. On the motion of Serjeant for the plaintiff; Serjeant for the defendant. [See generally 2 Chit. Ar. Pr. 1112.] By the Court. 5. Order for Amendment to be indorsed on Postea, under stat. 9 Geo. 4, c. 15; or 3 & 4 Will. 4, c. 42, s. 23. [See the form, ante, 101, No. 34.] CHAPTER XXXI. COSTS. 1. Security for Costs. 2. Costs for not proceeding to Trial. 3. Suggestions for Costs. 4. Judgment for Defendant for. 5. Certificate on R. G. H. 4 W. 4, that no distinct Subject-matter of Complaint or Defence was intended to be established, &c. In the Q. B. [or "C. P." or "Exch. of Pleas."] A. B. V. I do certify, that in my opinion no distinct subject-matter of complaint [or " answer,' or defence"] was bona fide intended C. D. to be established in respect of the [second] count [or "plea"] in this cause. Dated the day of 1840. (Judge's signature.) 6. Certificate on 3 & 4 W. 4, c. 42, s. 32. to deprive acquitted Defendant [See a form, ante, 97.] of Costs. 7. Certificate on R. H. 4 W. 4, that a Document was proved to the Judge's Satisfaction. In the Q. B. [or "C. P." or " Exch. of Pleas."] A. B. V. I do hereby certify, that the within document was proved to my satisfaction on the trial of this cause, before me. Dated the C.D. S day of A. D. 1840. (Judge's signature.) 8. Certificate in Trespass under 22 & 23 Car. 2, c. 9, to be indorsed on the Record. I do certify, that in my opinion an assault and battery were sufficiently proved by the plaintiff against the defendant [or "that the freehold or title of the land in the within declaration mentioned was chiefly in question"] on the trial of this cause. Dated the 1840. [See 2 Chit. Ar. Pr. 1142.] day of (Judge's signature.) A. D. 9. Certificate to deprive Plaintiff of Costs under 43 Eliz. c. 6, to be indorsed on the Record. I do hereby certify, that the debt [or "damages"] to be recovered in the action within mentioned, does not amount to forty shillings. Dated the — day of - 1840. [See 2 Chit. Ar. Pr. 1139.] (Judge's signature.) 10. Affidavit of Increased Costs in a Special Jury Cause at Assizes. "C. P." or "Exch. of Pleas."] In the Q. B. [or Between A. B. plaintiff and C. D. defendant. P. A. of gentleman, attorney for the above-named [plaintiff'], and A. B. of the above-named [plaintiff,] severally make oath and say; and first, this deponent P. A. for himself saith, that notice of trial was given in this cause for the last assizes to be holden at -, (name of assize town,) in the county of, and that the same was tried before a [special] jury of the said county; and that he did cause subpoenas to be issued out, on the part of the said plaintiff: and that W.W. of —, T. W. of, &c. [names and additions of witnesses] were all of them severally subpoenaed on the part of the plaintiff. And this deponent further saith, that all the said witnesses were material and necessary for the said plaintiff; and that their places of residence are distant from this deponent's residence miles; and that the said W. W., T. W., &c. (names of the witnesses) were paid with their subpoenas the sum of one shilling each. And this deponent further saith, that the usual place of his abode is distant from (assize town) aforesaid, miles; and that he this deponent was necessarily absent from his place of abode, in going to, staying at, and returning from the assizes, -days; and that he did pay for conveying himself to and from aforesaid, and for his expenses on the road, the sum of £--: And this deponent further saith, that the usual place of abode of the said W. W. is distant from (assize town) aforesaid, miles; and that the usual place of abode of the said T. W. is distant from -- aforesaid, miles (mentioning each of the witnesses in the same manner); and that the said W. W., T. W., &c. were necessarily absent from their respective places of abode, in going to, staying at, and returning from the said assizes, days. And this deponent further saith, that he did also pay to the said W. W., T. W. &c. for for their loss of time, trouble, and expenses, the sum of £- : And this deponent further saith, that his brief consisted of- sheets of paper; and that he did pay to Mr. with his brief, and his clerk, £- and to Mr. with his brief, and his clerk, £- and also the following court fees:-To the marshal for entering the cause, staff, and bailiff, ; to the jury, tip; and to the asso ; to the marshal and erier, And this deponent P. A. for himself saith, that he did pay for the expenses of himself and witnesses, at the said assizes, the sum of ciate Sworn [&c. ante, 207.] [See 1 Chit. Ar. Pr. 1163.] P. A. A. B. 11. The like, in a Town Cause, tried by a Common Jury. In the Q. B. [or "C. P." or " Exch. of Pleas."] Between A. B. plaintiff and C. D. defendant. A. A. of, gent., agent for the above-named plaintiff, and P. A. of in the county of -, gent., attorney for the above-named plaintiff, severally make oath and say; and first this deponent A. A. for himself saith, that the above cause was set down to be heard, and notice of trial given for the sittings in -term, 1840, and that the same was from time to time made a remanet. That the said cause was in the paper and ready for trial at the adjourned sittings after term last past, in and for the Guildhall of the city of London, (if the cause was a special jury one, state the fact, as in the preceding form). And this deponent P. A. for himself saith, that he caused four subpœnas to be issued out on behalf of the said plaintiff; and that T. W. of Liverpool, merchant, J. J. of -, gent., J. M. of —, clerk, R. C. of, merchant, and M. A. of aforesaid, sugar broker, were severally subpoenaed on the part and behalf of the said plaintiff. That this deponent, whose place of residence is distant from the city of London -miles, attended the trial of this cause as a necessary and material witness. And this deponent further saith, that ——, the usual place of abode of the said T. W., is distant from London miles; that --- the usual place of abode of the said J. M., is distant from London miles; and that, the usual place of abode of the said R. C. and M. A., is distant from London ——— miles. And this deponent further saith, that the said several witnesses were all material and necessary witnesses in this cause, on behalf of the said plaintiff, and that it would not have been safe or prudent for the above cause to have been carried down for trial without their evidence; and that they and he, this deponent, attended for the purpose of being witnesses at the trial of this cause, and that they and he were witnesses in no other cause, as this deponent verily believes. And this deponent further saith, that he set out from - --, in the county of, his usual place of abode, and attended in London for the purpose of superintending the trial of this cause, and as a material witness for and on behalf of the plaintiff as before said. And this deponent further saith, that the adjournment day for the trial of common jury causes in and for the city of London, was fixed for Thursday, the day of last; and the said several witnesses were subpoenaed for that day; and that subsequently the said adjournment day was postponed by the order of the lord chief justice of this honourable court to the day of last; and that the above-mentioned cause was second in the paper of that day. That in consequence of the probability of the cause being called on early in the morning of the said day of, it was necessary and expedient for all of the above-mentioned witnesses to be in London on the day of ; and they were requested by letter to be there accordingly. And this deponent P. A. for himself saith, that a short time fore this cause would have been tried (and after the witnesses were sub poenaed and every preparation for trial made), viz. on the evening of the day of the same month of he was served with a copy of a summons by the defendant's attornies to show cause why the defendant should not be at liberty to withdraw his pleas pleaded, and suffer judgment to go by default for £, with interest, as therein mentioned. That this deponent did accordingly on the next day, viz. the day of the said month of, attend before the Honourable Mr. Justice who ordered that he, the said defendant, should be at liberty to withdraw his pleas, and that judgment should go against him by default. And this deponent P. A. for himself saith, that immediately upon such order being made, he did write letters and sent them by the next post to the said several witnesses above subpoenaed, for the purpose of preventing their attendance, and requesting them not to attend upon such subpoenas; but that such letters did not reach their destination in time to prevent either of the said witnesses attending. And this deponent further saith, that he had no means of preventing them so attending. That immediately after the above order was made, and on the arrival of the said witnesses, T. W., R. C., and M. A., he this deponent communicated to them that their services would be dispensed with, and desired them, with the other witnesses J. M. and J. J., to return to their respective homes as soon as possible. And this deponent further saith, that the said witness T. W. was necessarily absent in coming from and returning to his said place of abode days; that the said J. J. was necessarily absent in coming from and returning to his said place of abode days: that the said witness J. M. was necessarily absent in coming from and returning to his said place of abode - days: that the said witnesses R. C. and M. A. were necessarily absent in coming from and going to their places of abode days; and that this deponent was necessarily absent in coming from and returning to his place of abode and entering into the necessary negotiation with the defendant's attornies days. And this deponent A.A. for himself saith, that he delivered a brief in this cause, consisting of sheets of paper, to Mr., and paid him therewith guineas, and his clerk shillings; and that he delivered another brief in this case to Mr., and paid him therewith guineas, and his clerk shillings; that he also paid to Mr. a refresher fee of guineas, and his clerk shillings; and to Mr. fee, guineas, and his clerk shillings. That in the opinion of this deponent it was necessary and expedient to have a consultation upon the necessary evidence in this cause with the above-mentioned counsel previous to the trial of this cause; and that he did have such consultation accordingly, and that he paid a consultation fee of -- guineas to Mr. -, and to his clerk shillings; and also a similar fee of guineas to Mr. and to his clerk shillings; that he paid to Mr. special pleader, for advising upon the evidence in this cause, guineas. And this deponent A.A. for himself saith, that the said several sums of money following have been paid to and for the said several witnesses, that is to say the sum of £- to the said T. W.; the sum of for a refresher L- to the said J. J.; the sum of £ to the said M. A.; and the sum of £ to the said R. C., for their loss of time, trouble, and expenses. And that he, this deponent, has also paid for his travelling expenses the sum of £, and that he is entitled to the sum of guineas per diem, during the said period of days as aforesaid, making together with his said travelling expenses the sum of £—. Sworn [&c. as ante, 207.] |