Page images
PDF
EPUB

Hil. T. 4

W. 4.

Reg. Gen. F., who is admitted by the Court here to prosecute for the said A. B., who is an infant within the age of twenty-one 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 custody] by virtue [or, served with a copy, as the case may be], of a writ issued on [date of first writ] the day of in the year of our Lord 18-, out of the Court of our Lord the King, before the king hin self at Westminster, [or, out of the Court of our Lord the King, before his Justices at Westminster, [or, out of the Court of our Lord the King, before the Barons of his Exchequer at Westminster, as the case may be]; For that

[Copy the declaration from these words to the end, and the plea and the subse quent pleadings to the joinder of issue].

day

Thereupon the Sheriff is commanded that he cause to come here, on the of, twelve, &c., by whom, &c., and who neither, &c., to recognize, &c., because as well, &c.

No. 2.

Form of Nisi Prius Record in the King's Bench, Common Pleas, or Exchequer. [The placita are to be omitted. Copy the issue to the end of the cacard of the venire, and proceed as follows:]

Afterwards, on the [teste of distringas or habeas corpora] day of, in the year , the jury between the parties aforesaid is respited here until the [return day of distringas or habeas corpora] day of unless shall first come on the first day of sittings or commission day of assizes] day of at -—, according to the form of the statute in such case made and provided for default of the jurors, because none of them did appear; therefore let the sheriff have the bodies of the said jurors accordingly.

[The postea is to be in the usual form.]

[blocks in formation]

Form of judgment for the plaintiff in assumpsit.

[Copy the issue to the end of the award of the venire, and proceed as fol lows:

unless

Afterwards, the jury between the parties is respited until the [return of the distringas or habeas corpora] day of shall first come on the [day of Sittings or Nisi Prius] day of —, at —, according to the form of the stat ute in that case made and provided for default of the jurors, because none of them did appear.

Afterwards, on the [day of signing final judgment] day of come the parties aforesaid, by their respective attornies aforesaid,] or as the case may be]; and -, before whom the said issue was tried, hath sent hitherto his record, had be fore him, in these words:

[Copy postea.

Therefore, it is considered that the said A. B. do recover, against the said C. D., his said damages, costs, and charges, by the jurors aforesaid, in form aforesaid, assessed; and also for his costs and charges, by the Court here adjudged of increase to the said A. B., with his assent, which said damages, costs, and charges, in the whole amount to and the said C. D. in mercy, &c.

No. 4.

Form of the issue when it is directed to be tried by the Sheriff.

[After the joinder of an 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 —, in the year --pursuant to the statute in that case made and provided, the sheriff (or, the judge of -, being a Court of Record for the recov ery of debt in the said county, as the case may be] is commanded 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 Lord the King to him in that behalf directed, with the finding of the jury thereon indorsed, on the &c.

- day of

No. 5.

Forms of writ of Trial.

Reg. Gen.
Hil. T. 4

W. 4.

William the Fourth, by, &c., to the Sheriff of our county of

of

-, [or, to the judge -, 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] day of ——— last, impleaded C. D. in an action on promises [or as the case may be] : for that whereas one, &c. [here recite the declaratian as in a writ of inquiry], and thereupon he brought suit. And whereas the defendant, on the day of last, by his attorney, [or as the case may be], came into our said [here recite the plea and pleadings to the joinder of issue] and the plaintiff 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 issue joined between the parties aforesaid, and [ *747 ] 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 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 Witness,

reign.

next.

[ocr errors]

at Westminster, the day of

in the

year of our

[blocks in formation]

Hil. T. 4
W. 4.

Reg. Gen. in-named plaintiff as the within-named defendant, by their respective attorneys within-named [or, as the case may be], and the jurors of the jury by me duly summoned, as within commanded, also came, and being duly sworn to try the said issue within mentioned on their oaths, said, that

No. 7.

Form of Indorsement thereon, in case a Nonsuit takes place.

[After the words " duly sworn to try the issue within mentioned" proceed as follows:]

And were ready to give their verdict in that behalf; but the said A. B. being solemnly called came not, nor did he further prosecute his said suit against the said C. D.

No. 8.

Form of judgment for the Plaintiff after Trial by the Sheriff. [Copy the issue and proceed as follows:]

Afterwards, on the [day of signing judgment day of, in the year

came the parties aforesaid, by their respective attornies aforesaid, [or, as the case may be,] and the said sheriff [or, judge as the case may be], before whom the said issue came on to be tried, hath sent hither the said last mentioned writ, with an indorsement thereon, which said indorsement is in these words: to wit:

[Copy the Indorsement.]

Therefore it is considered, &c. [in the same form as before.]

ABATEMENT,

INDEX.

in respect to the parties to a suit, (see title Parties.)

by nonjoinder or misjoinder, how to be objected to, 16, see Misjoinder

of a plaintiff, in an action on a contract, 13, 452

in an action for a tort, 66

in an action by executors or administrators, or as-
signees, 20, 22

in an action by wife alone, 33, 449

of a defendant, in an action on a contract, 45

by death,

see in general, 703

plea and affidavit must show residence of omitted
party within jurisdiction of Court, 46, 452,
453, 716, 717

carrier cannot plead nonjoinder in abatement
since 11 Geo. 4 and 1 Will. 4, c. 68, s. 5; 47
in an action for a tort, 86

of one of several plaintiffs or defendants pending the suit, 19, 448
in actions in form ex contractu,

surviving obligees, &c. to sue, 19, 448

death of her husband or wife, plaintiff, 31,
32

surviving obligor, &c. to be sued, 50
death of husband or wife, defendant, 58

in actions in form ex delicto,

survivor to sue, 67, 448

death of husband or wife, plaintiff, 75

death of husband or wife, defendant, 92, 93

of a sole plaintiff pending the action, 448

rule of actio personalis moritur cum persona, 68, 89

altered by 3 & 4 W. 4, c. 52, sect. 2, 70, 715

ABATEMENT, PLEAS IN, (As to pleas to jurisdiction, see title Jurisdiction.)
general nature of, and difference between them and pleas in bar, 446, 457
what matter may be pleaded in abatement or in bar, ib.

[blocks in formation]

ABATEMENTS, PLEAS IN-(continued.)

an infant suing by attorney, ib.
bankruptcy, 23, 448

coverture, (see title Coverture,) 449

of the defendant,

coverture, (see title Coverture,) 449
infancy, (see title infancy,) ib.

Relating to the count, 450

variance between writ and count no longer pleadable, 431, 450

Relating to the writ or bill, 450

why so called, and their effect, ib.

to the form of the writ, now abolished, 451

variance or defect in writ not now pleadable, 431
matters pleadable, only the intrinsic or dehors, 451

want of venue, 279

mistake in addition, when not pleadable by a peer, 457

misnomer, (see title Misnomer,) abolished and substituted reme
dy, 451, 452; see Appendix, 717

nonjoinder or misjoinder, when and how to be taken advantage of,
452, 703, 716, 717

plaintiffs not married, ib.

one of plaintiffs fictitious or dead, ib.

another joint contractor, &c. not sued, 46, 452, 453, 716, 717
another executor or administrator not sued, ib. 51, 457

officer or attorney improperly sued, 453

to the action of the writ, ib.

action misconceived as to form, 453

action prematurely brought, ib.
another depending for same cause, 454
replication to it, ib.

Qualities of, &c. 454, 457

may be to the whole or part of the declaration, 458

may demur to part, and plead in bar or abatement to other part, ib.
but cannot plead in abatement and bar to same matter, ib.
one defendant may plead in abatement, another in bar, 459
in case of misjoinder, &c. it is now more usual to demur, ib.
when the plea should only be to a part of the declaration, ib.
prayer of the plea, ib.

certainty and accuracy required in framing pleas in abatement, 457
must give the plaintiff a better writ or bill, 446, 457

this is the criterion to distinguish it from a plea in bar, ib.
general requisites and form of, 454

as to conclusion, 454, 469

venue not necessary, 478

duplicity, what objectionable, 458, 532

cannot plead two outlawries, &c. 532

cannot plead in abatement and bar to the same matter, ib. 458
misnomer of christian and surname pleadable in one plea, ib.

Form and general requisites of, 454

title of the plea, 455

when may be with a special imparlance, 437, 455

of what term, 455

consequences of mistake, 456

aided if replied to, ib.

present practice as to time, ib.

names of parties in the margin, ib.

commencement of the plea, ib.

accuracy required in statement of, ib. 462

« PreviousContinue »