New Rules of the Common Law Courts. counsel for his opinion, and his opinion thereon, with an affidavit of the party or his attorney that the same case contains a full and true statement of all the material facts, to the best of his knowledge and belief, shall be produced before the Court or Judge to whom application may be made; and no fees shall be payable by a pauper to his counsel and attorney, nor at the offices of the Masters, or Associates, or at the Judge's Chambers, or elsewhere, by reason of a verdict being found for such pauper exceeding five pounds. 122. Where a pauper omits to proceed to trial, pursuant to notice, he may be called upon by a rule to show cause why he should not pay costs, though he has not been dispaupered, and why all further proceedings should not be stayed until such costs shall be paid. PRISONERS, AND PROCEEDINGS AGAINST. 123. Every rule or order of a Judge directing the discharge of a defendant out of custody upon special bail being put in and perfected shall also direct a supersedeas to issue forthwith where defendant is in a county gaol. 124. The plaintiff shall proceed to trial, or final judgment, against a prisoner in the term next after issue is joined, or at the sittings or assizes next after such term, unless the Court or a Judge shall otherwise order, and shall cause the defendant to be charged in execution within the term next after such trial or judg ment. 125. The keeper of the Queen's Prison shall present to the Judges of the Courts in their respective chambers at Westminister, within the first four days of every term, a list of all such prisoners as are supersedeable, showing as to what actions and on what account they are so, and as to what actions (if any) they still remain not supersedeable. 205 ing such special matter, together with the list of the prisoners supersedeable. 127. All prisoners who have been or shall one calendar month after they are supersedebe in the custody of the keeper for the space of able, although not superseded, shall be forthto all such actions in which they have been or with discharged out of the Queen's Prison as shall be supersedeable. 123. After notice given to any plaintiff by a prisoner of his intention to apply for his discharge under any Act for the Relief of Insolseded or discharged out of custody at the suit vent Debtors, no such prisoner shall be superof such plaintiff, by reason of such plaintiff's forbearing to proceed against him according to the rules and practice of the Courts from the time of such notice given, until some rule or order shall be made in the cause in that behalf. 129. A rule or order for the discharge of a prisoner who has been detained in execution a year for a sum under twenty pounds may be made absolute in the first instance, on an affidavit of notice given ten days before the intended application, which notice may be given before the year expires. SHERIFFS.-RULES TO RETURN WRITS OR 130. All rules upon the sheriffs of London and Middlesex to return writs or to bring in the bodies of defendants shall be four-day rules, and upon other sheriffs eight-day rules. 131. When the rule to return a writ expires in vacation, the sheriff shall file the writ at the expiration of the rule, or as soon after as the office shall be open; and the officer with whom it is filed shall indorse the day and hour when it was filed. 132. No Judge's order shall issue for the return of any writ, or to bring in the body of a defendant, but a side bar rule shall issue for that purpose in vacation as in term, which shall be of the same force and effect as side bar rules made for that purpose in term. 133. In case a rule shall issue in vacation fa., elegit, habere facias possessionem, venfor the return of any writ of capias, ca. sa., ditioni exponas, or other writ of execution, and such rule shall have been duly served, but obedience shall not have been paid thereto, an rule, whether the thing required by such rule attachment shall issue for disobedience of such shall or shall not have been done in the mean 126. If, by reason of any writ of error, special order of the Court, agreement of parties, or other special matter, any person detained in the actual custody of the keeper of the Queen's Prison be not entitled to a supersedeas or discharge for want of proceeding to trial or judg-fi. ment, or charging in execution, within the times prescribed, then and in every such case the plaintiff or plaintiffs at whose suit such prisoner shall be so detained in custody shall with all convenient speed give notice in writing of such writ of error, special order, agreement, or other special matter, to the keeper, upon pain of losing the right to detain such prisoner in custody by reason of such special matter; 134. Where any Sheriff, before his going out and the keeper shall forthwith after the receipt of office, shall arrest any defendant and take a of such notice cause the matter thereof to be bail bond and make return of cepi corpus, he entered in the books of the prison, and shall shall and may within the time allowed by law also present to the Judges of the respective be called upon to bring in the body by a rule Courts, from time to time, a list of the prisoners for that purpose, notwithstanding he may be to whom such special matter shall relate, show-out of office before such rule shall be granted. time. 206 New Rules of the Common Law Courts. 141. Where any affidavit is sworn before any Judge or any Commissioner by any person who from his or her signature appears to be illiterate, the Judge's clerk or Commissioner taking such affidavit shall certify or state in the jurat that the affidavit was read in his presence to the party making the same, and that such party seemed perfectly to understand the same, and also that the same party wrote his or her mark or signature in the presence of the Judge's clerk or Commissioner taking the said affidavit. 142. No affidavit of the service of process shall be deemed sufficient if sworn before the plaintiff's own attorney or his clerk. 143. Where an agent in town, or an attorney in the country, is the attorney on the record, an affidavit sworn before the attorney in the country shall not be received; and an affidavit sworn before an attorney's clerk shall not be received in cases where it would not be receivable if sworn before the attorney himself; but this rule shall not extend to affidavits to hold to bail. 144. An affidavit sworn before a Judge of any of the Courts shall be received in the Court to which such Judge belongs though not entitled of that Court, but not in any other Court unless entitled of the Court in which it is to be used. 145. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be made use of in Court or before the Master, unless by leave of a Court or a Judge. 146. No rule which the Court has granted upon the foundation of any affidavit shall be of any force unless such affidavit shall have been actually made before such rule was moved for, and produced in Court at the time of making the motion. 147. All affidavits used before a Judge out of Court shall be filed with the Masters of the said Courts, and be alphabetically indexed; and such affidavits shall be delivered to the Masters of the respective Courts, in order to be filed, ten days next after that on which the matter is disposed of. 148. No commission for taking affidavits 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 no such commission shall issue without an affidavit made by the person intended to be named therein, that he is not and does 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. RULES, SUMMONSES, AND ORDERS. 149. Every rule of Court shall be dated the day of the week, month, and year on which the same is drawn up, without reference to any other time or date. 150. Side bar rules may be obtained on the last as well as on other days in Term. 151. A rule may be enlarged, if the Court think fit, without notice. for the first day in the ensuing Term, unless 152. All enlarged rules shall be drawn up otherwise ordered by the Court. than one summons for attendance before a 153. It shall not be necessary to issue more Judge, upon the same matter, and the party taking out such summons shall be entitled to an order on the return thereof, unless cause is shown to the contrary. 154. An attendance on a summons, or on an appointment before a Master, for half an hour shall be deemed a sufficient attendance. next immediately following the return thereof 155. All written consents upon which orders for signing judgments are obtained shall be preserved in the chambers of the Judges of the respective Courts. 156. In actions where the defendant has appeared by attorney no such order shall be made unless the consent of the defendant be given by his attorney or agent. 157. Where the defendant has not appeared or has appeared in person, no such order shall New Rules of the Common Law Courts. be made unless the defendant attends the Judge, and gives his consent in person, or unless his written consent be attested by an attorney acting on his behalf; except in a case where the defendant is a barrister, conveyancer, special pleader, or attorney. 158. Where a Judge's order is made during vacation, it shall not be made a rule of Court before the next Term. 159. When a Judge's order or order of Nisi Prius is made a rule of Court, it shall be a part of the rule that the costs of making the order a rule of Court shall be paid by the party against whom the order is made, provided an affidavit be made and filed that the order has been served on the party, his attorney, or agent, and disobeyed. 160. Rules to show cause shall be no stay of proceedings unless two days' notice of the motion shall have been served on the opposite party, except in the cases of rules for new trials, or to enter verdict or nonsuit, motion in arrest of judgment, or for judgment non obstante veredicto, to set aside award or annuity deed, or to enter a suggestion, or by the special direction of the Court. 207 deemed sufficiently served on such attorney if a copy thereof shall be left at the place lastly entered in such book with any person resident at or belonging to such place; and if any such attorney shall neglect to make such entry, the fixing up of any notice, or the copy of any pleadings, notice, summons, order, rule, or other proceeding, for such attorney, in the Masters' offices, shall be deemed a sufficient notice. fends in person, he shall, upon issuing any writ 166. In all cases where a party sues or deof summons or other proceeding, or entering an appearance, enter in a book to be kept for that purpose at the Master's office an adoffice at which all pleadings, notices, sumdress within three miles from the General Postmonses, orders, rules, or other proceedings not requiring personal service shall be left; and if such address shall not be entered in the said book, or if such address shall be more than three miles from the General Post-office, then the opposite party shall be at liberty to proceed by sticking up all pleadings, notices, summonses, orders, rules, or other proceedings in the Master's office without the necessity of any further service. 167. In all cases where a plaintiff shall have NOTICES, SERVICE OF, AND OF RULES, PLEAD- sued out a writ in person, or a defendant shall INGS, &C. 161. All notices required by these rules, or by the practice of the Court, shall be in writing. 162. Where the residence of a defendant is unknown, rules, notices, and other proceedings may be stuck up in the office, but not without previous leave of the Court or a Judge. 163. It shall not be necessary to the regular service of a rule or order, that the original rule or order should be shown, unless sight thereof be demanded, except in cases of attachment. 164. Service of pleadings, notices, summonses, orders, rules, and other proceedings shall be made before 7 o'clock, P.M. If made after that hour, the service shall be deemed as made on the following day. 165. The Masters of the several Courts shall cause to be kept an alphabetical book at their offices, to be there inspected by any attorney or his clerk, without fee or reward:-and every attorney practising in the said Courts, and residing within ten miles of the General Postoffice, shall enter in such book (in alphabetical order) his name and place of business, or some other proper place, within three miles of the said Post-office, where he may be served with pleadings, notices, summonses, orders, rules, and other proceedings; and as often as any such attorney shall change his place of business, or the place where he may be so served as aforesaid, he shall make the like entry thereof in the said book; and all pleadings, notices, summonses, orders, rules, and other proceedings have appeared in person, and either party shall by an attorney of the Court have given notice in writing to the opposite party, or the attorney or agent of such party, of such attorney being authorized to act as attorney for the party on whose behalf such notice is given, all pleadings, notices, summonses, orders, rules, and other proceedings which according to the practice of the Courts are to be delivered to or served upon the party on whose behalf such notice is given shall thereafter be delivered to or served upon such attorney. ATTACHMENT. 168. Rules for attachments shall be absolute in the first instance in the two following cases only; viz., first, for nonpayment of costs on a Master's allocatur; secondly, against a sheriff for not obeying a rule to return a writ or to bring in the body. AWARDS AND ANNUITIES. 169. Where a rule to show cause is obtained to set aside an award or an annuity, the several objections thereto intended to be insisted upon at the time of moving to make such rule absolute shall be stated in the rule to show cause. 170. Costs may be taxed on an award, notwithstanding the time for setting aside the award has not elapsed. MISCELLANEOUS. 171. On a reference to the Master to ascer which do not require a personal service shall be tain the amount for which final judgment is to 208 New Rules of the Common Law Courts. be signed, the Master's certificate shall be filed in the office when judgment is signed. 172. On every appointment made by the Master, the party on whom the same shall be served, shall attend such appointment without waiting for a second, or in default thereof, the Master may proceed ex parte on the first appointment. 1-Form of an Issue in General. In the Queen's Bench [or "Common Pleas," The , in (the date of the (The Venue.)-A.B. by P.A. his attorney 173. The Masters' offices in the several Courts shall be open in term time, from eleven o'clock in the forenoon till five o'clock in the afternoon, and not in the evening; and in the vacation, from eleven o'clock in the forenoon till three o'clock in the afternoon, except between the 10th day of August and the 24th day of October, when they are to be open from eleven in the morning till two in the afternoon, and except on Good Friday, Easter-eve, Monday and Tuesday in Easter-week, Christmasday, and the three following days, and such of jury come, &c. the four following days as may not fall in the time of term, but not otherwise, namely, the Queen's birthday, the Queen's Accession, Whit Monday, and Whit Tuesday, when the offices shall be closed. 174. In all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules or practice of the Courts, the same shall be reckoned exclusively of the first day, and inclusively of the last day, unless the last day shall happen to fall on a Sunday, Christmas-day, Good Friday, or a day appointed for a public fast or thanksgiving, in which case the time shall be reckoned exclusively of that day also. 175. The days between Thursday next before, and the Wednesday next after Easterday, and Christmas day and the three following days, shall not be reckoned or included in any rules, notices, or other proceedings, except notices of trial or notices of inquiry. 176. In all causes in which there have been no proceedings for one year from the last proceeding had, the party, whether plaintiff or defendant, who desires to proceed shall give a calendar month's notice to the other party of his intention to proceed. The summons of Judge, if no order be made thereupon, shall not be deemed a proceeding within this rule. Notice of trial, though afterwards countermanded, shall be deemed a proceeding within a 2.-Form of a Nisi Prius Record. The Nisi Prius record will be a copy of the issue as delivered in the action. It must be engrossed on parchment, and a more convevient shape than that heretofore in use must be adopted. 3.-Form of a Postea on a Verdict for Plaintiff on all the Issues where the Cause is tried in London or Middlesex, and where the Defendant appears at the Trial. Afterwards on the day of A.D. (the first day of the sittings) at the Guildhall of the City of London [or "at Westminster Hall, in the county of Middlesex," before the Right Honourable John Lord Campbell, Her Majesty's Chief Justice assigned to hold pleas in the Court of our Lady the Queen before the Queen herself, [or if in the Common Pleas, "before the Right Honourable Sir John Jervis, Knight, Her Majesty's Chief Justice assigned to hold pleas in Her Majesty's Court of the Bench," or in the Exchequer, "before the Right Honourable Sir Frederick Pollock, Knight, Chief Baron of Her Majesty's Court of Exchequer,"] come the parties within mentioned by their respective attorneys within mentioned, and a jury of the within county [or "city"] being summoned, also come, who, being sworn to try the matters in question between the said parties upon their oath, say The forms of proceedings contained in the that, [&c., state the affirmative or negative of schedule hereunder may be used in the cases the issue as it is found for the plaintiff, and in to which they are applicable, with such altera- the terms adopted in the pleading.] [If there tions as the nature of the action, the descrip- be several issues joined and tried, then say, tion of the Court in which the action is depend-" as to the first issue within joined upon their ing, the character of the parties, or the circum- oath say that," (&c., state the affirmative or stances of the case may render necessary; but negative of the issue as found for plaintiff,) any variance therefrom, not being in matter of" and as to the second issue within joined, the substance, shall not affect their validity or jury aforesaid upon their oath say that," (&c., regularity. so proceed to state the finding of the jury on it. FORMS OF PROCEEDINGS. New Rules of the Common Law Courts. 209 all the issues.)] [Conclude with an assess-Court of Exchequer," or "the Honourable Sir ment of the damages, thus:] And they assess the damages of the plaintiff on occasion of the premises within complained of by him, over and above his costs of suit, to £ and for those costs to 40s. Therefore, &c. 4.-The like, where the Cause is tried at the Assizes. Afterwards, on the A.D. assizes), at before Sir Knight, before whom the said issue was (or "issues were ") tried in the absence of Her Majesty's Chief Justice, &c." as the case may be,] hath sent hither his record had before him in these words: Afterwards [&c., copy the postea]. Therefore it is considered that the plaintiff do recover against the defendant the said monies by the jurors aforesaid in form aforesaid assessed [or if the action be in debt and the jury do not assess the debt, but only the damages and forty shillings costs, then say "do recover against the defendant the said debt of £ and the monies by the jurors aforesaid in form aforesaid assessed"]: and also £ for his costs of suit by the Court here adjudged of increase to the plaintiff, which said monies and costs [or "debt, damages, and costs,"] in the whole amount to £ [In the margin of the roll, opposite the words "Therefore it is considered," write Judgment signed the day of A.D. judgment.] stating the day of signing the 6.-The like in a Cause tried at the Assizes. day of (the commission day of the in the county [or "city"] of Knight, and Sir , Knight, Justices of our said Lady the Queen, assigned to take the assizes in and for the within county [or "city and county," or "town and county," as the case may be]," come the parties within mentioned by their respective attorneys within mentioned; and a jury of the said county [or "city and county," or "town and county," as the case may be,] being summoned also come, who, being sworn to try the matters in question between the said parties, upon their oath say, that [&c., state the negative or affirmative of the issue as it is found for the plaintiff, and in the terms adopted [Copy the Nisi Prius record, and then proby the pleading.] [If there be several issues ceed thus:] Afterwards, on the day of joined and tried, then say, " as to the first issue within joined upon their oath, say, that," (&c., (day of signing final judgment,) come the state the affirmative or negative of the issue as parties aforesaid, by their respective attorneys it is found for the plaintiff,)" and as to the aforesaid (or, as the case may be); and Sir Knight, second issue within joined, the jury aforesaid, Knight, and Sir on their oath aforesaid, say, that" (&c., so pro- Justices of our Lady the Queen assigned to ceed to state the finding of the jury on all the take the assizes in and for the said county, or issues.)] [Conclude with stating an assess-"city and county," &c., as the case may be] ment of the damages, thus:] And they assess before whom the said issue was [or "issues the damages of the plaintiff on occasion of the were "] tried, have sent hither their record had premises within complained of by him, over and before them in these words. Afterwards, [&c. above his costs of suit, to £ and for Conclude as directed in the preceding form.] those costs to 40s. Therefore, &c. 5.-Form of a Judgment for Plaintiff on a Verdict in a Town Cause. in the year of our Lord [Commence the issue as in the form No. 1, [Copy the Nisi Prius record, and then pro- above prescribed. Then copy all the pleadings, ceed thus:] Afterwards, on the day of and after the joinder of issue proceed as follows:] And forasmuch as the sum sought to be re[day of signing final judgment] come the parties covered in this suit, and indorsed on the said aforesaid, by their respective attorneys afore-writ of summons, does not exceed 201., heresaid [or as the case may be, if they have not upon on the (teste of writ of trial), pursuant appeared by attorneys], and the Right Honour-year able Lord John Campbell, Her Majesty's Chief to the statute in that case made and provided, Justice assigned to hold pleas in the Court of the Sheriff [or "the Judge of our Lady the Queen before the Queen herself, a Court of Record for the recovery of debt in [or if in Common Pleas, "the Right Honour-the said county," as the case may be,] is comable Sir John Jervis, Knight, Her Majesty's manded that he summon twelve, &c., who Chief Justice assigned to hold Pleas in Her neither, &c., who shall be sworn truly to try Majesty's Court of the Bench," or if the Ex- the issue [or "issues,"] above joined between chequer," the Right Honourable Sir Frederick the parties aforesaid, and that he proceed to try Pollock, Knight, Chief Baron of Her Majesty's such issue [or "issues"] accordingly; and , being |