a term subse quent to declaration. to the declaration, a general imparlance is sometimes introduced, at the head of the plea, similar to that which was formerly used in actions by bill, in the King's Bench; but this seems to be unnecessary: and, by a general rule of all the courts b, it is not necesAward of venire sary that imparlances should be entered on any distinct roll. The facias. issue concludes with an award of the venire facias; which, by a late statute, is to be made returnable forthwith. a Tidd Prac. 9 Ed. 720. Append. thereto, Chap. XXX. § 2. DR. H. 2 W. IV. reg. 1. § 109. 8 Bing. 305. 2 Sup. to Tidd Prac. 9 Ed. 7.4, 5. с As to the award of the venire facias in K. B. by bill, see Tidd Prac. 9 Ed. 720; by original, id. 722, 3; and in C. P. id. 723. 4 3 & 4 W. IV. c. 67. § 2. CHAP. XXXIII.. Power to di rect issues joined in certain actions, to be tried before sheriff, or judge of court of record for re Dovery of debt. Of the TRIAL of ISSUES before the SHERIFF, &c. and c. 42. BEFORE the statute 3 & 4 W. IV. c. 42., trials by the country were at bar or nisi prius only a: But now, by the above statute ", it is enacted, that "in any action depending in any of the superior "courts of common law at Westminster, for any debt or demand "in which the sum sought to be recovered, and indorsed on the "writ of summons, shall not exceed twenty pounds, it shall be law"ful for the court in which such suit shall be depending, or any "judge of any of the said courts, if such court or judge shall be "satisfied that the trial will not involve any difficult question of "fact or law, and such court or judge shall think fit so to do, to "order and direct that the issue or issues joined shall be tried be"fore the sheriff of the county where the action is brought, or a As to trials at bar, see Tidd Prac. 9 Ed. 747; and as to trials at nisi prius, and the steps preparatory thereto, and consequences of not proceeding to trial, &c. see id. 751, &c. b § 17. any judge of any court of record for the recovery of debt in "such county; and for that purpose a writ shall issue, directed to "such sheriff, commanding him to try such issue or issues, by a jury to be summoned by him, and to return such writ, with the "finding of the jury thereon indorsed, at a day certain, in term or "in vacation, to be named in such writ; and thereupon such sheriff, or judge, shall summon a jury, and shall proceed to try such "issue or issues." 66 CHAP. XXXIII. Construction of stat. 3 & 4 W. IV. c. 42. § 17. and proceedings · thereon. for trial of issues. Direction, and form of writ of This statute is confined to actions for the recovery of debts or demands, in which the sum sought to be recovered, and indorsed on the writ of summons, shall not exceed twenty pounds. And, in such actions, if the court in which the suit is depending, or any judge of a superior court, is satisfied, upon hearing counsel, or the attornies or agents for both parties, that the sum sought to be recovered does not exceed that amount, and that the trial will not involve any difficult question of fact or law, they will make a rule Rule or order or order, for trial of the issue or issues joined therein, before the sheriff of the county where the action is brought, or any judge of a court of record for the recovery of debt in such county; and that a writ issue, directed to such sheriff or judge, for trial thereof accordingly. This rule or order will authorize the plaintiff, or his attorney, to issue a writ, which is called a writ of trials, directed to the sheriff, or judge, before whom the trial is to be had; and, when directed to the sheriff, it begins by stating that the plaintiff had impleaded the defendant, in the court from which it issued, in an action on promises, (or of debt, &c. as the case may be;) and after setting forth the declaration, plea, and issue or issues joined, and that the sum sought to be recovered, and indorsed on the writ of summons, does not exceed 201., and that it is fitting that the issue or issues should be tried before the sheriff to whom it is directed, commands the said sheriff, that he summon twelve free and lawful men of his county, qualified according to law, who are nowise akin to the plaintiff or to the defendant, who shall be sworn truly to try the issue or issues joined between the parties; and that the sheriff proceed to try such issue or issues accordingly, and when the same shall have been tried in manner aforesaid, that he make known to the court * The words "or judge" seem to have been here inadvertently omitted. b Append. to Chap. XXXIII. § 1. trial. CHAP. XXXIII. Signing and sealing, &c. what shall have been done by virtue of the writ, with the finding of the jury thereon indorsed, on the return day, that judgment may be given thereupon. The writ of trial is engrossed on parchment; and signed, sealed, and issued, in like manner as the writ of inquiry in ordinary cases; Delivery of writ and should be delivered to the sheriff, two clear days at least be to sheriff, and indorsement thereon. Notice of trial. Effect of verdict. to have the like at nisi prius. fore the time appointed for its execution, folded up, and indorsed with a statement of the court in which the action is brought, the names of the parties, nature of the writ, and time and place when and where the issues are to be tried, specifying the hour of the sitting of the court precisely b; and the sheriff will thereupon summon a jury, for the execution of the writ. Previously to its execution, however, a notice of trial should be given to the defendant, if he appear in person, or otherwise to his attorney; which should, it seems, be such a notice as he would have been entitled to, in case the issue or issues were to be tried before a judge at nisi prius. This notice should state the hour of the sitting of the court precisely, as indorsed on the writ ; and, before it is given, the hour should be settled at the sheriff's office, to prevent the inconvenience of detaining the jury for a considerable time, with the uncertainty of the appearance of the parties: and if either party propose to attend by counsel, he should give notice thereof to his adversary, or he will not be allowed for it in costs. The verdict of the jury, on the trial of such issue or issues, is declared by the act, to be "as valid, and of the like force, as a Sheriff, or judge," verdict of a jury at nisi prius; and the sheriff or his deputy, or powers as judges "judge, presiding at the trial of such issue or issues, shall have "the like powers with respect to amendment on such trial, as are "thereinafter given to judges at nisi prius." And, "at the return taxed, and judg." of such write, costs shall be taxed, judgment signed, and exment signed, &c. «ecution issued forthwith, unless the sheriff, deputy, or judge, "before whom such trial shall be had, shall certify, under his hand, At return of writ, costs to be 66 upon such writ, that judgment ought not to be signed, until the "defendant shall have had an opportunity to apply to the court for a new trial, or a judge of any of the said courts shall think fit to a Ante, 136. C Append. to Chap. XXXIII. § 3. Id. § 4. and as to the notice of trial, see Tidd Prac. 9 Ed. 753. Stat. 3 & 4 W. IV. c. 42. § 18. e For the form of the sheriff's return to a writ of trial in assumpsit, see Append. to Chap. XXXIII. § 5; and in debt, id. § 6. Append. to Chap. XXII. § 1, 2. CHAP. XXXIII. stat. I W. IV. c. 7. to extend "order that judgment or execution shall be stayed, until a day to “be named in such order." The plaintiff, however, must, it seems, wait four days after the return day of the writ, before he can tax his costs, or sign judgment, &c. Provided, that "all and every the provisions contained in the Provisions of statute made and passed in the first year of the reign of his pre"sent majesty, intituled, An act for the more speedy judgment and to such issues. "execution, in actions brought in his majesty's courts of law at "Westminster, and in the court of Common Pleas of the county "palatine of Lancaster, and for amending the law as to judgment " on a cognovit actionem, in cases of bankruptcy, shall, so far as "the same are applicable thereto, be extended and applied to "judgments and executions upon such writs for the trials of issues, "in like manner as if the same were expressly re-enacted therein." In entering the proceedings on the roll, the rule or order of the Entry of procourt or judge should be stated, as a foundation for the award of ceedings. the writ of trial d; and the sheriff's return thereto should be entered, to authorize the judgment: but this need not be done, before the issuing of the writ of execution. It sometimes happens, that the controversy turns entirely upon a matter of law; and the parties, being agreed as to the facts of the case, are desirous to take the opinion of the court upon it, without carrying the cause down to trial; and with a view to this object, it is enacted by the statute 3 & 4 W. IV. c. 42.e that "it shall be lawful for the "parties, in any action or information, after issue joined, by consent, " and by order of any of the judges of the said superior courts, to "state the facts of the case, in the form of a special case, for the "opinion of the court; and to agree that a judgment shall be entered "for the plaintiff or defendant, by confession or nolle prosequi, im"mediately after the decision of the case, or otherwise as the court may think fit; and judgment shall be entered accordingly.” Power to state CHAP. XXXIV. of venire facias, &c. By stat. 3 & 4 Of the TESTE and RETURN of JURY PROCESS; and Teste and return THE writ of venire facias juratores, being the first process for convening a jury, was formerly tested on the first day of the term, in or after which the cause was to be tried; and was made returnable on some day before the trial, being a general return day or day certain, according to the previous proceedings: If in a country cause, the venire by original was made returnable on the last general return day, or, if by bill, on the last day of the term before the assizes; and the distringas, or habeas corpora, was tested on the quarto die post of the return by original, or by bill on the return of the venire; and made returnable on the first general return day or day certain, in term time, after the trial. But, by the statute 3 & 4 W. IV. c. 67. b, reciting that by the existing law, and the practice of the courts of common law at Westminster, actions may be brought, and issues proceed to trial and final judgment, in vacation, notwithstanding the cause of action may have arisen subsequent to the then preceding term, and jury process was by law tested in term time only; it is enacted, that "from and after the passing "of that act, the writ of venire facias juratores may be tested on "the day on which the same shall be issued, and be made return"able forthwith; and that the writ of distringas juratores, or habeas "corpora juratorum, may be tested in term or vacation, on a day "subsequent to the teste of the writ of venire facias juratores: Pro“vided always, that when any trial is to be had at bar, the writ of "venire facias juratores shall be made returnable as heretofore." W. IV. c. 67. Costs of special jury. It was formerly holden, that the fees for striking a special jury, should be paid by the party applying for it; but that the other expences of the trial should abide the event of the suit: But, by a Tidd Prac. 9 Ed. 781. And as to jury process in general, see id. 777.; the qualification, disqualification, and exemption of jurors, id. 782; the mode of returning common juries, id. 785; and of striking special juries, id. 787. b § 2. с Say. Costs, 181. Hamelton v. Style, and Wilks v. Eames, 2 Str. 1080. Eyles v. Smart, Cas. Pr. C. P. 138. Barnes, 123. S. C. and see Tidd Prac. 9 Ed. 792. |