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JUDGMENT AND EXECUTION.
[No. I.] 1 W. IV. c. 7.—An Act for the more speedy Judg
ment and 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.
[11th March 1831.] WHEREAS the judgment and execution in actions brought in his
Majesty's courts of law at Westminster are often delayed by reason
of the interval between the terms: Now, for the prevention of such Writs may be delay, be it enacted, &c., That any writ of inquiry of damages to be made returna- issued in or by either of the said courts, by whatever form of process ble on any day the action may have been commenced, may be made returnable and be to be named
returned on any day certain, in term or vacation, (1) to be named in therein.
such writ, and such writ shall be as valid and effectual as if the same
had been returnable according to the course of the common law; and Proceedings to thereupon at the return thereof a rule for judgment may be given, be bad at the costs taxed, final judgment signed, and execution issued forthwith, (2) return thereof. unless the sheriff or other officer before whom the same may be execu
ted shall certify under his hand upon such writ that judgment ought not to be signed until the defendant shall have had an opportunity to apply to the court to set aside the execution of such writ, or one of the judges of the said courts shall think fit to order the judgment to be stayed until a day to be named in such order : Provided always, That in case the signing of judgment on such writ shall be postponed by reason of such certificate or order, or by the choice of the plaintiff, or otherwise, and judgment shall be afterwards signed thereon, such judgment shall be entered of record as of the day of the return of such writ, un
less the court shall otherwise direct. The judge be
II. That in all actions brought in either of the said courts, by whatfore whom any ever form of process the same may be commenced, it shall be lawful for action shall be the judge before whom any issue joined in such action shall be to be tried may cer- tried, in case the plaintiff or demandant therein shall become nonsuit, tify before the or a verdict shall be given for the plaintiff or demandant, defendant or end of the sit- tenant, to certify under his hand, on the back of the record, at any tings or assizes time before the end of the sittings or assizes, that in his opinion executhat execution tion ought to issue in such action forthwith, or at some day to be named ought to issue forthwith;
in such certificate, and subject, or not, to any condition or qualification,
(1) Before this act writs of inquiry could only have been made returnable in term time, and consequently, when they were issued in vacation final judgment and execution could not be obtained without considerable delay.
(2) Where a writ of inquiry is executed, and the defendant taken in execution in vacation pursuant to this section, the inquisition and subsequent proceedings should be filed, or the defendant should be suffered to inspect them : and the court of exchequer compelled the plaintiff's attorney to file the inquisition and subsequent proceedings; Townsend v. Baines, 3 Tyr. 104; 1 Cr. & M. 177.
and in case of a verdict for the plaintiff, then either for the whole or for No. I. any part of the sum found by such verdict; in all which cases a rule 1 W. 4, c. 7. for judgment may be given, costs taxed, and judgment signed forthwith, and execution may be issued forthwith, or afterwards, according in which case to the terms of such certificate, on any day in vacation or term; and judgment may the postea, with such certificate as a part thereof, shall and may be en- be signed, and tered of record as of the day on which the judgment shall be signed, execution isalthough the writ of distringas juratores or habeas corpora juratorum sued according may not be returnable until after such day : Provided always, That it to the terins of
the certificate. shall be lawful for the party entitled to such judgment to postpone the signing thereof. (1)
III. That every judgment to be signed by virtue of this act may be Entering and entered and recorded as the judgment of the court wherein the action recording of shall be depending, although the court may not be sitting on the day judgment. of the signing thereof; and every execution issued by virtue of this act shall and may bear teste on the day of issuing thereof; (2) and such Teste. judgment and execution shall be as valid and effectual as if the same had been signed and recorded and issued according to the course of the common law.
IV. Provided always, That notwithstanding any judgment signed or Judgment may recorded, or execution issued, by virtue of this act, it shall be lawful be vacated, for the court in which the action shall have been brought to order such execution judgment to be vacated, and execution to be stayed or set aside, and stayed, and new to enter an arrest of judgment, or grant a new trial or new writ of in- trial granted. quiry, as justice may appear to require; and thereupon the party affected by such writ of execution shall be restored to all that he may
(1) Certificates will be granted in actions of assumpsit on promissory notes, &c. and in other actions to which there is no reasonable ground of defence, and in which the judge shall be of opinion that execution ought to be issued forth with, or at a future day; Bell v. Smith, 5 C. & P. 10; Tidd. 176. Though in an action of assumpsit, the verdict be taken by consent, and the consent does not comprehend any such terms, the judge will, nevertheless, certify for immediate execution ; Anon. 1 Moo. 8: R. 167.
There formerly was a doubt among the judges whether the statute was not intended to be confined to cases of contracts; Bardon v. Cor, 1 Moo. & R. 203. But it seems to be now settled that the plaintiff is entitled to early execution in actions of debt, as well as in other actions ; Young v. Crooks, ib. 220; and that it is not limite:l to cases of contract, but applies to all actions in which the judge shall think there ought to be such execution. Accordingly it has been granted in an action for mesne profits and costs in ejectment; Bardon v. Cox, supra. So also in an action for criminal conversation, in which the plaintiff, in order to prevent a verdict froin passing against him in consequence of the prevarication of one of his witnesses, consented to be nonsuited, the judge directed execution to issue at the expiration of a month; Hambridge v. Crawley, 5 C. & P.9.
Certificates are not grantable where there is a reasonable ground of defence ; Tidil. 177; Barford v. Nelson, 5 C. & P.8; Wright v. Guiver, ib.9; Crookshank v. Rose, ib. 19, 20. And in an action against an executor on the bond of his testator, where a verdict is given for the plaintiff on the plea of non est factum, if the judge make an order for immediate execution, it will not entitle the plaintiff to issue execution in the first instance against the goods of the defendant; Ward v. Thomas, 2 Doul. 87.
Affidavits, it seems, are not in general admissible in support of an application for immediate execution; Gervas v. Buckley, 1 Moo. & R. 150; but there may be cases in which justice may require them; and in a late case, Ruddick v. Simmons, 1 Moo, & R. 184, a certificate was granted on an affidavit of facts, after verdict for the plaintiff in an undefended cause ; Tidd. 177.
The object of this statute is to accelerate execution for all debts where there is really no doubt on the claim for the sum recovered; per Parke, B., Percival v. Alcock, 1 Moo. & R. 167. Therefore it will be granted after a verdict by consent; id. See Wordsworth's Rules and Statutes, xlii. Second edit.
(2) See the 3 & 4 W.4, c. 67, s. 2, by which all writs of execution may be tested on the day on which the same are issued, and made returnable immediately after execution thereof; ante, Part IV., Class III.
If a writ of execution be tested of a term previous to the judgment, or if when issued under this clause it be not tested on the day on which it issues, it becomes irregular; but the court will permit the teste to be amended (on payment of costs) even as against the bail; Englehart v. Dunbar, 2 Doul. 302.
No. I. have lost thereby in such manner as upon the reversal of a judgment by 1 W. 4, c. 7. writ of error, or otherwise as the court may think fit to direct. (1)
V. Provided always, That nothing in this act contained shall be Not to affect deemed to frustrate or make void any provision relating to the issuing provision in of any writ of habere facias possessionem, contained in the act passed 1 W. 4, c. 70, in the first year of the reign of his present Majesty, intituled An Act for relating to writs of posses
the more effectual Administration of Justice in England and Wales. (2)
VI. Provided always, That no officer of either of the said courts sion.
shall, for the purpose of taxing costs on any judgment to be signed by Limitation as
virtue of this act, be compelled to attend at any time between the last to taxing costs. day of August and the twenty-first day of October in any year. No judgment VII. And whereas by an act passed in the sixth year of the reign of signed or exe- his late Majesty king George the fourth, intituled An Act to amend the cution issued on Laws relating to Bankrupts, it is provided, that no creditor, though for a cognovit a valuable consideration, who shall sue out execution upon any judgsigned after de- ment obtained by default, confession, or nil dicit, shall avail himself of claration filed such execution to the prejudice of other fair creditors, but shall be paid shall be deemed rateable with such creditors : And whereas, by reason of such provision, within the pro- plaintiffs have been and may be deterred from accepting a cognovit
actionem, with stay of execution, whereby the expence of further proceedings in such action might have been and may be saved or diminished; for remedy thereof be it enacted, That no judgment signed or execution issued after the passing of this act on a cognovit actionem signed after declaration filed or delivered, or judgment by default, confession, or nihil dicit, according to the practice of the court, in any action commenced adversely, and not by collusion for the purpose of fraudulent preference, shall be deemed or taken to be within the said
provision of the said recited act. (3) In lieu of the VIII. And whereas by an act passed in the twenty-second year of the return days in reign of his late Majesty king George the second, made and passed, Easter and Mi- among other purposes, for the more frequent return of writs in the chaelmas terms counties palatine of Chester and Lancaster, (4) writs of capias ad reall writs of in
spondendum may be made returnable in the court of common pleas of quiry of da
the said county palatine of Lancaster on the first Wednesday in every mages, &c. to be returnable
month: And whereas by another act passed at a sessions of parliament on the first holden in the thirty-ninth and fortieth years of the reign of his late Wednesday in Majesty king George the third, intituled An Act for the better regulating every month,
in the Practice and for preventing Delays in the Proceedings of the Court of addition to the Common Pleas at Lancaster, writs of inquiry of damages, and certain first and last other writs in the said act in that behalf mentioned, issued by and out days of each
of the same court, may be made returnable on any of the return days in Easter and Michaelmas terms respectively, according to the course of his Majesty's court of common pleas at Westminster, in addition to the first and last days of each assizes held for the said county ; and it is expedient to quicken the proceedings in the said court of the said county; be it therefore enacted, That in lieu of the return days in Easter and Michaelmas terms, all writs of inquiry of damages, and other writs in the said last mentioned act in that behalf mentioned, shall and may be made returnable in the said court of the said county on the first Wednesday in every month, in addition to the first and last days
(1) Where execution within a limited time has been granted at the assizes, and judgment thereupon entered up and execution issued, the defendant is not precluded from applying, in the next term, to the court above in order to enter a suggestion to deprive the plaintiff of his costs under a court of request act.
A judge at the assizes has no power to order such suggestion to be entered; Baddeley v. Oliver, 1 Cr. M. 219; 1 Dowl. 598.
See the statute, ante, Part IV, Class I. (3) This clause does not extend to judgments on warrants of attorney, though given without collusion or intention of fraudulent preference; Crossfield v. Hanley, 4 B. & Ad. 87.
(4) See the act altering the practice of the Common Pleas at Lancaster, post, Part IV., Class XVI.
of each assizes held for the said county; and such proceedings shall No. I. and may be had on the return thereof as upon such writs returnable 1 , W. 4, c. 7. according to the law in force at and before the passing of this act.
IX. And whereas persons suing in the inferior courts of the said When writs for county palatine of Lancaster are often vexatiously delayed in the reco- removing suits very of their just demands by the removal of their suits into the said from inferior court of common pleas, by reason that the writs whereby the same are courts shall be removed can be made returnable only at the assizes holden for the said returnable. county; for remedy thereof be it enacted, That all writs of pone loquelam, recordari facias loquelam, accedas ad curiam, and all other writs now lawfully issued out of the chancery of the said county palatine of Lancaster for the removal of causes from the inferior courts of the said county into the said court of common pleas, which shall be issued after the expiration of fourteen clear days next after the passing of this act, shall be made returnable on the first Wednesday in the month next after the issuing thereof, unless in the meantime the assizes shall be holden for the said county, and if the assizes shall be so holden in the meantime, then on the first or last day of such assizes, as the case may be, next after the issuing thereof; and that all such writs made returnable at any other time than according to the provision herein-before contained shall be utterly null and void to all intents and purposes.
(For the provisions of the 3 & 4 W. 4, c. 42, with respect to signing judgment in writs of inquiry and writs of trial before the sheriff. See ante, Part IV. Class IX.)
ERROR AND FALSE JUDGMENT.
Regulation as to writs of error.
[No. I.] i W. IV. c. 70.-An Act for the more effectual administration of Justice in England and Wales.
[23rd July, 1830.] VIII. That writs of error upon any judgment (1) given by any of the said courts shall hereafter be made returnable only before the judges, or judges and barons, as the case may be, of the other two courts in the exchequer chamber, any law or statute to the contrary notwithstanding; that a transcript of the record only shall be annexed to the return of the writ; and the court of error, after errors are duly assigned and issue in error joined, shall, at such time as the judges shall appoint, either in term or vacation, review the proceedings, and give judgment as they shall be advised thereon; and such proceedings and judgment, as altered or affirmed, shall be entered on the original record, and such further proceeding as may be necessary thereon shall be awarded by the court in which the original record remains, from which judgment in error no writ of error shall lie or be had, except the same be made returnable in the high court of parliament. (2)
[No. II.] 3 & 4 W. 4. c. 42.-An Act for the further
amendment of the Law, and the better Advancement of Justice.
[14th August, 1833.] Interest to be XXX. That if any person shall sue out any writ of error upon any allowed on all judgment whatsoever given in any court in any action personal, and the writs of error court of error shall give judgment for the defendant thereon, then interest for the time
shall be allowed by the court of error for such time as execution has been that execution has been de
delayed by such writ of error, for the delaying thereof. layed.
[A variety of regulations with respect to writs of error have been made by the recent rules of court.]
(1) This provision extends to a judgment given against a defendant in the K. B. on an indictment; Rer v. Wright, 1 Ad. & E. 434.
(2) For error in fact a writ of error will not lie from the Common Pleas to the Exchequer chambers but only to the King's Bench; Castledine v. Mundy, 4 B. & Ad. 90.