The Practice of the Courts of King's Bench and Common Pleas, in Personal Actions, and Ejectment

prothonotaries, either party may move for their report thereon. In some of the preceding cases, the rule may be drawn up on a judge's order in vacation, on producing a motion paper signed by a counsel or serjeant; as for the master or prothonotaries to compute principal and interest on bills of exchange, or promissory notes,(t) &c.; to bring money into court, change the venue, or plead several matters; for a special jury, or view; to have a good jury, on the execution of an inquiry; or to make a submission to arbitration a rule of court. (u)

*Special rules nisi, or to show cause, are moved for, in both [*487] courts, on behalf of the plaintiff or defendant. On behalf of the plaintiff, they are, in the King's Bench, to discharge the rule for a special jury;(a) or for a scire facias, to revive a judgment above fifteen years old:(b) In the Common Pleas, for a scire facias to revive a judgment, above twenty years old; (c) and, in both courts, for the sale of issues, on a writ of distringas ;(d) to amend the writ, (e) or return; that the money deposited with the sheriff, and paid into court, under statute 43 Geo. III. c. 46, § 2, may be paid over to the plaintiff; (f) to set aside a judgment of nonpros, for irregularity ;(g) for leave to enter up judgment on a warrant of attorney, above twenty years old :(h) to refer it to the master or prothonotaries, in term time, to compute principal and interest on bills of exchange, or promissory notes, (i) &c.; for the execution of a writ of inquiry before the chief justice, (k) or a judge at nisi prius;(4) for the defendant to produce a deed in his possession, and give a copy thereof to the plaintiff, when entitled to inspect it, in order that he may declare thereon;(7) or to produce the same before the Commissioners of the Stamp office, to be stamped, (m) or to the plaintiff's attorney, in order that he may ascertain the names of the witnesses, so as to subpoena them;(n) to discharge the rule for changing the venue, for irregularity;(0) for a trial at bar,(p) or in an adjoining county ;(q) to set aside a nonsuit, verdict, or inquisition, and have a new trial, (rr) or inquiry ;(ss) to enter judgment for the plaintiff, non obstante veredicto;(tt) that the plaintiff may be allowed his costs of suit, in an action on a judgment;(uu) to enter up judgment, and take out execution, after verdict against one of several defendants, where the rest have agreed to be bound by it;(x) or to take out execution, pending a writ of error.(y)

(t) Ante, 484.

(u) 5 Barn. & Ald. 217. And see stat. 5 Geo. IV. c. 106, 8, for granting rules in vacation, in the courts of Great Sessions in Wales, for a particular of the plaintiff's demand and defendant's set off, &c.

(a) Post, Chap. XXXIV.

(e) Ante, 130, 161.

(g) Ante, 460.

(i) Post, Chap. XXII. Append. Chap. XXII. ? 32.

(k) Post, Chap. XXII. Append. Chap. XXII. 2 55.

(1) 2 Chit. Rep. 229, 231. 1 Taunt. 386; and see 4 Taunt. 666. 1 Moore, 465. 8 Taunt. 131. 2 Moore, 513, (a), S. C. 3 Moore, 671. 1 Brod. & Bing. 318, S. C.; but see 6 Taunt. 283. Id. 302. 1 Marsh. 610, S. C. 8 Taunt. 131.

Moore, 513, &c.

(m) Cooke v. Stocks, M. 36 Geo. III. K. B. 4 Taunt. 157. 5 Moore, 71; and see 1 Bing. 161. 3 Bing. 292.

(n) 2 Chit. Rep. 230; and see 2 Campb. 95, n.
(p) Post, Chap. XXXIII. Append. Chap. XXXIII. ? 1.
(rr) Post, Chap. XXXVIII. Append. Chap. XXXVIII. § 1.
(88) Post, Chap. XXII.

(uu) Post, Chap. XL.; and see stat. 43 Geo. III. c. 46, § 4.
(x) Post, Chap. XLI.

(0) Post, Chap. XXIV.
(2) Post, Chap. XXXIII.

(tt) Post, Chap. XXXVIII.

(y) Post, Chap. XLIV.

On behalf of the defendant, rules to show cause are, in the King's Bench, to consolidate actions ;(2) in the Common Pleas, to declare *peremptorily ;(a) when the defendant is in custody; to change the [*488 ] venue; (b) to plead several matters, except in certain cases;(c) or

for the copyhold tenants of a manor to inspect and take copies of court rolls; (d) and, in both courts, they are to reverse an outlawry; (e) to quash the writ; (f) to set aside proceedings for irregularity in the process, (g) or notice to appear,(h) or in the delivery, filing, or notice of declaration, (2) or notice of trial or inquiry; (2) and, if the defendant be in custody, to discharge him on filing common bail, or entering a common appearance; or, if he has given bail to the sheriff, that the bail bond may be delivered up to be cancelled;(2) that the money deposited with the sheriff, and paid into court, under the statute 43 Geo. III. c. 46, § 2, may be repaid to the defendant, or his bail, on putting in and perfecting bail to the action,(k) to set aside proceedings on the bail bond,(7) or against the sheriff, for irregularity, (m) or to stay them upon terms;(n) for time to plead, under special circumstances;(0) to stay proceedings, where the debt sued for appears to be under forty shillings,(p) or the action is brought or conducted on bad or defective grounds, (p) contrary to good faith,(p) or without proper authority;(p) or that they may be stayed, pending a writ of error,(p) until security be given for payment of costs, (p) or the costs are paid of a former action for the same cause;(p) to set aside an interlocutory judgment, for irregularity, (q) or, if regular, on an affidavit of merits; (g) to strike out superfluous or unnecessary counts;(r) to withdraw the general issue, and plead it de novo, with a notice of set off, (8) or upon bringing money into court;(s) to add or withdraw special pleas;(t) to amend the pleadings :(u) for judgment as in case of a nonsuit;(xx) to put off a trial, for the absence of a material witness(yy) or consent to his being examined on interrogatories, (zz) or, in the Common Pleas, commission for that purpose ;(*) to set aside a verdict or inquisition, and that there may be a new trial(†) or *inquiry, or [ *489 ] (after a point reserved,) that a nonsuit may be entered;(aa) in

(z) Post, Chap. XXIV. (a) Ante, 424.

(f) Ante, 161, 167.

(h) Ante, 167.

(k) Ante, 227, 8.

(m) Ante, 316, 17.

Append. Chap. XXIV. 8.

(b) Post, Chap. XXIV. Append. Chap. XXIV. Z 5. Append. Chap. XXXVII. ¿ 12.

(e) Ante, 138, &c.

(g) Ante, 160, 61. Post, Chap. XX.

(i) Post, Chap. XX.

(1) Ante, 301, 2.

(n) Id. ibid. And note, one motion may be made in the original action, to stay all the proceedings on the bail bond given in that action; and one rule in such case seems to be sufficient. Nicklen v. Profit, Same v. Taylor, and Same v. Birley, H. 37 Geo. III. K. B. 3 Bos. & Pul. 118, C. P.; and see ante, 304.

(0) Ante, 469, 70.

(9) Post, Chap. XXII.

(r) Post, Chap. XXIV.

(p) Post, Chap. XX,

(8) Post, Chap. XXVII. In these and the two following cases, though an application may, under special circumstances, be made to the court, yet it is more usual to proceed by summons and order, before a judge.

(t) Post, Chap. XXVII.

(u) Post, Chap. XXIX. Append. Chap. XXIX. 3 11, 12.

(xx) Post, Chap. XXXIII. Append. Chap. XXXIII. 2 18.

(yy) Post, Chap. XXXIII.

(zz) Ante, 485, (g). Post, Chap. XXXV. Append. Chap. XXXV. ¿ 12, 13.

(*) Post, Chap. XXXV. Append. Chap. XXXV. § 16.

(+) Post, Chap. XXXVIII.

(aa) Post, Chap. XXXVIII.

Append. Chap. XXXVIII. ? 2, 3.

Append. Chap. XXXVIII. ¿ 2, 3.

arrest of judgment, (b) for the plaintiff to bring the postea into court, and file the plea roll, so that the defendant may enter a suggestion, to entitle him to costs, on the court of conscience acts; (c) for a suggestion, after non-suit or verdict, to entitle him to double or treble costs, (d) &c.; that he may be allowed his costs of suit, where the plaintiff does not recover the sum for which he was arrested, and had not any reasonable cause for arresting him to that amount:(e) for the discharge of an insolvent debtor, under the statute 48 Geo. III. c. 123;(f) or to set aside an execution for irregularity, and discharge the defendant out of custody, or restore to him the money levied.(g)

The defendant also, as well as the plaintiff, may move for leave to inspect and take copies of books, &c. or have them produced at the trial; (h) for a trial at bar, (i) or in an adjoining county :(k) to set aside an award, (1) or judge's order: (m) for a repleader,(n) or venire facias de novo;(n) for the master or prothonotaries to review their taxation ;(0) or to enter up judgment, nunc pro tunc.(p)

There are some motions and rules peculiar to the action of ejectment ; such as, on behalf of the lessor of the plaintiff before appearance, for judgment against the casual ejector,(q) in ordinary cases; or, in the King's Bench, against the real ejector, on a vacant possession; or, when the tenant cannot be met with, that service of the declaration on a relation or servant may be deemed good service;(r) or, when a landlord proceeds on the statute 1 Geo. IV. c. 87, that the tenant may give such undertaking, and enter into such recognizances as are required by that statute :(8) after appearance, and before trial, they are to set aside a release by the nominal plaintiff, or his lessor, or a retraxit and cognovit by the tenant; or for a trial at bar: and, after trial for leave to take out execution against the casual ejector, when the landlord has been made defendant, and failed at the trial; for an attachment against the defendant, in the King's Bench and Common Pleas,(t) or subpoena in the Exchequer, (u) for non payment of costs on the consent rule, after a nonsuit, for not confessing lease entry and ouster; or for an attachment, for opposing the execution of the writ of possession, &c. On behalf of the tenant, &c. before appearance, they are to set aside a judgment

against the casual ejector for irregularity, or, when regular, [*490] upon an "affidavit of merits, and payment of costs; the common consent rule; (aa) for the landlord to be admitted to defend, with or without the tenant ;(bb) or for a tenant in common, joint tenant, or coparcener, to confess lease, and entry, and also ouster of the nominal plaintiff, in case an actual ouster of the plaintiff's lessor, by the defendant, shall be proved at the trial, but not otherwise :(cc) after appearance, and before

(b) Post, Chap. XXXVIII. Append. Chap. XXXVIII. ? 4, 5.

(e) Stat. 43 Geo. III. c. 46, 8 3.

(g) Post, Chap. XLI.

(f) Ante, 386, &c. 7 Taunt. 37, 467. (h) Post, Chap. XXIII.

(i) Post, Chap. XXXIII. Append. Chap. XXX III. & 1.

(k) Post, Chap. XXXIII.

(m) Post, 511.

(0) Post, Chap. XXXIX.

(9) Append. Chap. XLVI. & 42, 3, 4.

(s) Id. & 50, 52.

(t) Append.

(1) Post, Chap. XXXVI.

(n) Post, Chap. XXXVIII.

(p) Post, Chap. XL.

(r) Id. 38, 9.

Chap. XL. & 9, 10. Chap. XLVI. 126. 127, 8.

(bb) Id. 8 75, &c.

trial, they are to consolidate ejectments; to stay proceedings against the defendant, until security be given for the payment of costs; or until the costs are paid of a former ejectment; (d) to stay execution, pending error; or to stay proceedings, on payment of rent, &c. on statute 4 Geo. II. c. 28:(e) or on payment of mortgage money, &c. on statute 7 Geo. II. c. 20, § 1:(f) and, after trial, for an attachment against the lessor of the plaintiff, in the King's Bench, or Common Pleas, (g) or subpoena in the Exchequer, (h) for non-payment of costs on the consent rule, where the plaintiff is nonsuited upon the merits, or there is a verdict for the defendant; or for restoring the possession of premises, improperly delivered to the lessor of the plaintiff, under the writ of possession, &c. These motions and rules will be treated of, in the order in which they occur, in the last chapter of the present work.

There are other motions and rules, not necessarily connected with any suit; such as to set aside an annuity, and deliver up the securities to be cancelled, &c.; to strike an attorney off the roll, for misconduct, (2) or, at his own instance, when there is no complaint against him;(k) to re-admit an attorney, who has neglected to take out his certificate for more than a year on payment of the arrears of stamp duty,(7) &c.; or to make a submission to arbitration, by bond or agreement, a rule of court.(m) The rule for striking an attorney off the roll at his own instance, or for making a submission to arbitration a rule of court, is drawn up on the signature of counsel, in the King's Bench: but in the Common Pleas, it is moved for in court, and absolute in the first instance :(n) In the other cases, the rule is only to show cause.

Rules, it has been said, are not records; but only remembrances, not entered on the rolls of the court. (o) A rule or order drawn up by an officer of a court of justice, and purporting to be the rule or order of the court, is so considered, until amended or set side.(p) And if a rule of court be produced under the hand of the proper officer, there is no need to prove it to be a true copy, because it is as an original.(2) But the allegations in a rule of court, do not prove the facts alleged.(r)

*A motion is sometimes preceded by a notice;(a) and is in [ *491 ] general accompanied with an affidavit, or affidavits, of the facts necessary to support it.(b) In the King's Bench, notice of motion is necessary in the case of an information, or to quash a conviction.(ce) And in other cases, though seldom necessary, it is frequently given, in order that the rule nisi may operate as a stay of proceedings; or to save time and expense, by affording the adverse party an opportunity of showing cause in the first instance, or by inducing the court to disallow the costs of proceedings had after notice, and before the motion. The statute 14 Geo. II. c. 17, § 1, requires notice of motion for judgment as in case of a nonsuit; but, in the King's Bench, the rule to show cause is considered a sufficient

notice of itself; (d) though it is otherwise in the Common Pleas :(e) And, in the latter court, a rule nisi is no stay of proceedings, unless notice of motion be given, and an affidavit thereof filed, except in the case of rules for new trials, or in arrest of judgment. In the Exchequer, when a party gives notice of an intended motion, and no one appears on the appointed day to make it, the court will not give the other party, who has attended for the purpose of opposing it, the costs of his attendance, if one notice only has been given.(f) Such attendances, however, have been taken into consideration, when motions, of which several notices had been given, have been at length brought on; and the court have, in certain cases, after the motions have been disposed of, exercised a discretionary power, in giving directions respecting the costs.(f)

Affidavits are in general sworn in court, or before a judge or baron of the court, where the action is brought; or before a commissioner authorized to take affidavits, by virtue of the statute 29 Car. II. c. 5;(g) or, if made for the purpose of holding the defendant to special bail, they may be sworn before the officer who issues the process, or his deputy; (h) or, to prove the service of common process, before the clerk of the common bails, or filacer, by the statute 12 Geo. I. c. 29.(i) And, by a late rule of the court of King's Bench, (k) it is ordered, that "no commission for taking affidavits in that court shall be issued to any person practising as a conveyancer, unless such person be also an attorney or solicitor of one of the courts at Westminster; and that no such commission shall issue, without an affidavit, made by the person intended to be named therein, that he is not, and doth not intend to become a practising conveyancer, or that he is an attorney or solicitor, duly enrolled in one of the said courts, and hath taken out his certificate for the current year." Which rule was extended,

by a subsequent one,() to attorneys and solicitors duly enrolled [ *492 ] and *practising in any of the courts of great sessions in Wales, or in either of the counties palatine of Chester, Lancaster, or

Durham.

Affidavits may be considered with reference to their title, contents, jurat, stamp, and filing, &c.: The title also may be considered, as it respects the court, or the names of the parties. All affidavits should regularly be entitled in the court where they are made, or intended to be used; and in the King's Bench, we have seen, (a) if they be not so entitled, but only subscribed with the words, "By the Court," at the bottom of the jurat, they are not sufficient to entitle the party to read them; nor can they be read, if sworn before a commissioner, without stating him to be a commissioner of this court, unless they are so entitled. (b) In the Common Pleas, (d) Lofft, 265.

(e) 1 H. Blac. 527. Append. Chap. XXXIII. ? 16; and see 2 Taunt. 48. (f) 9 Price, 14.

(g) For the form of the jurat in these cases, see Append. Chap. XIX. § 6, &c. (h) Ante, 154, 164, 5; 179. Append. Chap. X. ¿ 1.

(i) Append. Chap. XII. § 4.

(k) R. H. 3 & 4 Geo. IV. K. B. 1 Barn. & Cres. 288. 2 Dowl. & Ryl. 438. (2) R. E. 4 Geo. IV. K. B. 1 Barn. & Cres. 656. 2 Dowl. & Ryl. 870. And see stat. 5 Geo. IV. c. 106, 9, authorizing the judges of the courts of Great Sessions in Wales, to issue commissions, directed to persons resident out of their jurisdiction, for taking answers, examinations, and affidavits, &c.; and id. 28, by which commissioners for taking affidavits in the King's Bench, Common Pleas, and Exchequer, or a master extraordinary in Chancery, are authorized to take them, of and concerning any matter arising within the jurisdiction of the said courts of Great Sessions.

(a) Ante, 180, 81. Append. Chap. XII. ? 4.
(6) 13 East, 189; but see 7 Durnf. & East, 451.

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