CHAPTER III. PROCEEDINGS FROM THE TRIAL TO The verdict, INCLUSIVE. B. V. D. SECTION I. TRIAL AT BAR. 1. Rule for Trial at Bar, in Q. B. On the day of , in the year of our Lord 1839. Upon reading the rule made in this cause on and hearing -, of counsel for the defendant, and Mr. Mr. of counsel for the plaintiff; it is ordered, that the trial of this cause be had at the bar of this court, on the day of [See 1 Chit. Ar. Pr. 258.] 2. Notice of Trial at Bar. now next ensuing. By the Court. In the Q. B. [or “C. P." or "Exch. of Pleas."] day of, 1839. [or "agent.] D. defendant. P. A. plaintiff's attorney, [See 1 Chit. Ar. Pr. 263.] 3. Entry of Verdict, on a Trial at Bar, in Q. B. [After the award of the venire facias, proceed thus:] From which day the jury aforesaid, between the parties aforesaid, of the plea aforesaid, was respited thereupon between them, before our lady the queen at Westminster, until then next following, for default of the jurors, &c. At which day, before our said lady the queen at Westminster, come the parties aforesaid, by their attornies aforesaid; and the jurors of that jury, being summoned, also come, who to speak the truth of the premises, being chosen, tried, and sworn, say upon their oath, [&c. stating the verdict.] SECTION II. TRIAL AT NISI PRIUS. Demurrers to For forms as to challenging the jury, see post, 84. Pleas puis darrein continuance, post, evidence, post, 85. 83. 1. Postea when a Juror is withdrawn. esquire, Afterwards, that is to say, on the day and at the place within contained, before the right honourable (the name of the chief justice, or in Exchequer the name of the chief baron,) within mentioned, being associated to the said chief justice [or "chief baron," or, in country causes, "before sir knight, one of the justices of our lady the queen assigned to hold pleas before the queen herself, and sir knight, one of the justices of our lady the queen of the bench," or "sir knight, one of the barons of the Exchequer of our lady the queen"] according to the form of the statute in such case made and provided, come as well the within-named plaintiff as the within-named defendant, by their respective attornies within mentioned; and the jurors of the jury, whereof mention is within made, being summoned, also come, who, to speak the truth of the matters within contained, are chosen, tried, and sworn; whereupon, for certain causes moving as well the said chief justice [or, "chief baron," or "justices," or "barons,"] as the withinnamed plaintiff and defendant, J.J., one of the jurors of the jury aforesaid, is withdrawn from the panel thereof, and the rest of the jurors of the jury aforesaid are altogether discharged from giving any verdict of and upon the premises within mentioned, &c. [See 1 Chit. Ar. Pr. 285.] 2. Judgment thereon.(a) [Commence the entry of the judgment as in other cases; see form, post, Chap. 5, s. 2; and after proceeding to the end of the postea, state the judgment thus:] Therefore it is considered that the plaintiff' take nothing by the said writ, and that the defendant go thereof without day, &c. SECTION III. TRIAL BEFORE THE SHERIFF UNDER THE 3 & 4 WILL. 4, c. 42, s. 17. 1. Affidavit to obtain Rule or Order for the Writ of Trial. In the Q. B. [or "C. P." or "Exch. of Pleas."] A. B. plaintiff v. C. D. defendant. P. A. of , gentleman, attorney for the above-named plaintiff, maketh oath and saith, that this action is brought to recover a debt due to the above-named plaintiff, and that the sum sought to be recovered and indorsed on the writ of summons in this action, does not exceed twenty pounds. And this deponent further saith, that issue has [or "issues have"] been joined in the said action, and that the trial will not, as this deponent verily believes, involve any difficult question of fact or law. Sworn, [&c. (b).] [See 1 Chit. Ar. Pr. 292.] (a) As to when withdrawing a juror determines the action see Harries v. Thomas, 2 M. & W.32, from which it would seem that judgment is not a P. A. necessary consequence of such withdrawal. (b) See Index, title "Jurat." V. 2. Rule Nisi in Q. B. or Exchequer, to have the Issue tried before the Sheriff, &c. B. Upon reading the affidavit of the plaintiff [or "P.A."] it is ordered, that the defendant, upon notice of this rule to be given to D.Shim [or, where he has appeared by attorney, "to his attorney or agent"] shall upon next show cause why the issue [or "issues"] joined in this cause should not be tried before the sheriff of [or before the judge of the court of, in the county of ," and why a writ should not issue directed to the said sheriff [or "judge "] commanding him to summon a jury to try such issue [or "issues,"] and to return the same to the court on some day certain, to be named in such writ, together with the finding of the jury indorsed thereon, pursuant to the statute of 3 & 4 Will. 4, c. 42. On the motion of Mr. By the Court. B. 3. The like, in C. P. A. D. Upon reading the affidavit of the plaintiff [or "P. A."] it is ordered, that the defendant, upon notice of this rule to be given to D. him [or "his attorney or agent"] shall show cause to this court tomorrow peremptorily, before the rising of the court, otherwise this rule shall be then absolute, why the issue [&c. conclude as in the preceding form.] B. V. 4. Affidavit of Service of Rule. [See the usual form, post.] 5. Judge's Order for the Trial. Upon [reading the affidavit of P. A. and] hearing the attornies or agents on both sides, I do order that a writ issue out of her majesty's D. court of, directed to the sheriff of commanding him to summon a jury to try the issue joined herein, and that the said sheriff return such writ, with the finding of the jury indorsed thereon, to the said court, on a day certain to be named in such writ, pursuant to the statute. Dated the day of A. D., [See 1 Chit. Ar. Pr. 293.] [Judge's signature.] 6. The Issue, when it is directed to be tried by the Sheriff(a). [After the joinder of issue proceed as follows:] And forasmuch as the sum sought to be recovered in this suit, and indorsed on the said writ of summons, does not exceed £20, hereupon on the (teste of writ of trial) day of pursuant to the statute in that case made and provided, the sheriff [or, "the judge of, being a court of record for the recovery of debt in the said county," as the case may be,] is com in the year (a) This form is prescribed by the recent rules of H. T. 4 W. 4. If omitted or curtailed, judgment may be arrested, Handford v. Handford, 6 Dowl. 473. manded that he summon twelve &c., who neither &c., who shall be sworn truly to try the issue above joined between the parties aforesaid, and that he proceed to try such issue accordingly; and when the same shall have been tried that he make known to the court here what shall have been done by virtue of the writ of our lady the queen to him in that behalf directed, with the finding of the jury thereon indorsed on the - day of &c. [See 1 Chit. Ar. Pr. 295.] 7. Writ of Trial (a). Victoria, by the grace of God, of the united kingdom of Great Britain and Ireland queen, defender of the faith, to the sheriff of our county of [or "to the judge of being a court of record for the recovery of debt in our county of as the case may be.] Whereas A. B., in our court before us at Westminster, [or "in our court before our justices at Westminster," or "in our court before the barons of our Exchequer at Westminster," as the case may be,] on the (date of first writ of summons)(b) day of last impleaded (c) C. D. in an action on promises (or as the case may be); for that whereas one, &c. [here recite the declaration as in a writ of inquiry], and thereupon he brought suit. And whereas the defendant, on the (date of plea) day of, last, by his attorney, (or as the case may be,) came into our said court and said (here recite the pleas und pleadings to the joinder of issue), and the plaintiff [or “defendant,” as the case may be] did the like. And whereas the sum sought to be recovered in the said action, and indorsed on the writ of summons therein, does not exceed £20; and it is fitting that the issue above joined should be tried before you the said sheriff of —, [or "judge," as the case may be]: we therefore, pursuant to the statute in such case made and provided, command you that you do summon twelve free and lawful men of your county duly qualified according to law, who are in nowise akin to the plaintiff or to the defendant, who shall be sworn truly to try the said issues joined between the parties aforesaid, and that you proceed to try such issue accordingly; and when the same shall have been tried in manner aforesaid, we command you that you make known to us at Westminster, [or "to our justices at Westminster,' or "to the barons of our said Exchequer," as the case may be,] what shall have been done by virtue of this writ, with the finding of the jury hereon indorsed, on the day of next. Witness, (name of chief justice, if the action is in Q. B. or C. P., or of the chief baron if in the Erch.,) at Westminster, the in the year of our reign. day of [See 1 Chit. Ar. Pr. 293, 294.] 8. Indorsement on Writ of Trial, before Delivery to the Sheriff. In the Q. B. [or "C. P." or "Exch. of Pleas."] } B. Writ of Trial.-To be tried at the Secondaries Office, 5, Basinghall Street, London, [if in London; or if in Middlesex, “at the house known by the name of the sheriff's office in Red Lion V. D. (a) This form is prescribed by the rule of H. T. 4 W. 4. It must not be curtailed, Handford v. Handford, 6 Dowl. 473. (b) See White v. Farrar, 2 M. & Wels. 288; 5 Dowl. 463, S. C.; Farwig v. Cockerton, 6 Dowl. 337; (c) Impleaded means that the action was commenced, Robinson v. Rowland, 6 Dowl. 271. P. A. plaintiff's attorney, [or "agent"] of (stating his residence.) 9. Deputation from the Sheriff to try the Cause. to wit. P. S. sheriff of the said county, to T. W., gentleman, my deputy for this purpose only, greeting: By virtue of a writ of trial issuing out of her majesty's court of Q. B. [or “C. P." or "Exch."] at Westminster, to me directed and hereto annexed; I do hereby authorise and empower you to summon a jury, and in my name try the issue joined in a cause wherein S. R. is the plaintiff and S. L. the defendant, and render me an account of what you shall do herein, so that I may certify the same to our lady the queen, [or if in C. P. "to the justices of our lady the queen of the bench," or if in Exch. "to the barons of her majesty's Exchequer,"] at Westminster, on the Hereof fail not. Given under the seal of my office, this A. D. 1839. This deputation to be indorsed and returned with the writ. day of instant. day of By the Sheriff. 10. Return thereto. The execution of this deputation appears in a certain inquisition hereto annexed. T. W. deputy sheriff. 11. Notice of Trial. In the Q. B. [or "C. P." or "Exch. of Pleas."] Between A. B. plaintiff and C. D. defendant. Take notice, that the issue joined in this cause will, pursuant to the statute 3 & 4 Will. 4, c. 42, ss. 17 and 18, and the order of the Honourable [Mr. Baron Maule,] made on the day of instant, in this cause, be tried before the [sheriff of Middlesex,] on - the day of next, at eleven o'clock in the forenoon precisely, at the [sheriff of Middlesex office, Red Lion Square, Holborn, in the said county of Middlesex,] [and if the plaintiff mean to attend by counsel, add, "when and where counsel will attend on behalf of the said plaintiff."] Dated the of —, 18—. Yours, &c. day P. A. plaintiff's attorney [or "agent."] To Mr. C. D. the above-named defendant, [or if he has appeared by attorney, "to Mr. D. A. defendant's attorney" or "agent."] [See the other forms of Notices of Trial at Nisi Prius, ante, 50, and of Notices of Inquiry, post; also of Notice of Countermand, ante, 52.] 12. Præcipe for Subpana. See the form, ante, 54. |