19. Judgment where there are Issues in Fact and Issues in Law, and where the Issue in Fact is determined first (a). [Proceed as in the issue, as ante, 46, No. 9, setting forth all the pleadings, and award of venire with a unica taxatio (b), then proceed thus:] Afterwards the jury between the parties aforesaid is respited until the (return day of distringas or habeas corpora,) unless shall first come on the (day of sittings or nisi prius) 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. At which day of- A. D.- come here the parties aforesaid by their attornies aforesaid; and (the chief justice or justices of assize) before whom the said issue whereof the said parties have put themselves upon the country was tried, hath [or "have"] sent hither his [or "their"] record, had before him [or" them"] in these words, to wit: Afterwards, that is to say [&c. as in the postea, which may be as ante, 92, &c. No. 1, &c. to the statement of the finding of the jury, which may be thus: "As to the issue within joined between the said parties to be tried by the country, say upon their oath that the defendant did promise in manner and form as the plaintiff hath in the said first count of his said declaration within complained against him; and they assess the damages of the plaintiff by reason of the not performing the promise in the said first count mentioned, over and above his costs and charges by him about his suit in this behalf expended, to £, and for those costs and charges to 40s. And as to the issue within joined between the parties, whereon they have put themselves upon the judgment of the court, the jurors aforesaid, upon their oath aforesaid, say, that if it shall happen that judgment shall be thereupon given for the plaintiff, then they assess the damages of the plaintiff, by him sustained on occasion of the not performing the promise in the second count of the said declaration within mentioned, over and above his costs and charges by him about his suit in this behalf expended, to £, and for his costs and charges last aforesaid, to 40s."] But because it is unknown to the court here whether or not the defendant will be convicted of the premises aforesaid, whereof the parties aforesaid have put themselves upon the judgment of the court, therefore let the giving of judgment in this behalf against the defendant be stayed, until the issue aforesaid whereon the said parties have put themselves upon the judgment of the court shall have been adjudged and determined. And hereupon on come here the parties aforesaid, by their respective attornies; whereupon all and singular the premises aforesaid, whereof the said parties have put themselves upon the judgment of the court, being seen and by the court here fully understood, and mature deliberation being thereupon had, it appears to the court here that the said [second] count of the said declaration is sufficient in law. Therefore it is considered that the plaintiff do recover against the defendant his said damages, costs and charges by the jurors aforesaid, in form aforesaid assessed, and also [&c. conclude the final judgment as usual, according to the nature of the action. See the form, ante, 102, No. 1, &c.] (a) See 2 Chit. Ar. Pr. 666. This form will now suffice, though a term intervenes between that in which issue was finally joined and that in which the issue in fact is determined. (b) See the form of this award of venire, ante, 46, No. 9. 20. Judgment on Demurrer to one Count of the Declaration in Assumpsit on which Damages are assessed by the Court, and a Nolle prosequi to the other Counts (a). come [Proceed as in the demurrer book, as ante, 302, No. 6, setting forth all the pleadings, then proceed thus:] And hereupon on here the parties aforesaid, by their respective attornies aforesaid: Whereupon all and singular the premises being seen, and by the court here fully understood, and mature deliberation being thereupon had, it appears to the court here that the said first count of the said declaration is sufficient in law; wherefore the plaintiff ought to recover against the defendant his damages by him sustained on occasion of the not performing of the said promises in the said first count of the said declaration mentioned. And hereupon the plaintiff says, that he will not further prosecute his suit against the defendant on occasion of the not performing of the said promises in the said second and subsequent counts of the said declaration mentioned: Therefore let the defendant be acquitted as to those last-mentioned promises, and go thereof without day &c. (b) And the plaintiff prays judgment, and his damages by him sustained on occasion of the not performing of the said promise in the said first count mentioned, to be adjudged to him &c. And because it is suggested and proved, and manifestly appears to the court here that the plaintiff hath sustained damages, on occasion of the not performing of the said lastmentioned promise, to the sum of £, besides his costs and charges by him about his suit in this behalf expended: Therefore it is considered that the plaintiff do recover against the defendant his damages aforesaid, to the said sum of £- and also £- for his said costs and charges, by the court here adjudged to the plaintiff and with his assent; which said damages, costs and charges in the whole amount to £—; and the defendants in mercy [&c. add the usual marginal notes as directed unte, 102, No. 1.] 21. Judgment on Demurrer to one Count in a Declaration in Assumpsit, &c. with award of Inquiry thereon, and a Relictá Verificatione by Defendant as to the Plea. come [Proceed as in the demurrer book, as ante, 302, No. 6, setting forth all the pleadings, and then proceed thus:] And hereupon on here the parties aforesaid, by their respective attornies aforesaid: Whereupon all and singular the premises being seen, and by the court here fully understood, and mature deliberation being thereupon had, it appears to the court here that the said first count in the said declaration is sufficient in law. And hereupon the defendant, relinquishing his said plea by him above pleaded to the said second and subsequent counts, says, that he cannot deny the action of the plaintiff, nor but that the plaintiff ought to recover against the defendant his damages by reason of the premises: wherefore the plaintiff ought to recover his da mages against the defendant. But because it is unknown [&c. conclude as in the form, post, 328. If the damages are assessed by the court, conclude as post, 343, from the words “ and hereupon, &c." (a) See 2 Chit. Ar. Pr. 666. (b) The defendant is entitled to his costs of this nolle prosequi, and per haps the judgment ought to state it. See post. 22. The like in Debt, with a Relictá Verificatione and Remittitur Damna. [Proceed as directed in the preceding form, ante, 308, No. 21, to the asterisk*, and then thus:] And hereupon the defendant, relinquishing his said plea by him above pleaded as to the second and subsequent counts of the said declaration, says that he cannot deny the action of the plaintiff, nor but that the defendant doth owe to the plaintiff the said several sums of money in those counts respectively mentioned and above demanded. And upon this the plaintiff freely here in court remits to the defendant the said last-mentioned sums of money, and all damages sustained by the plaintiff on occasion of the detention thereof; and he prays judgment for the said sum of £-, in the said first count of the said declaration mentioned, together with his damages by him sustained on occasion of the detention thereof, to be adjudged to him &c.: Therefore it is considered that the plaintiff do recover against the defendant the said sum of £ in the said first count mentioned, and his damages by him sustained on occasion of the detention thereof, to £, by the court here adjudged to the plaintiff, and with his assent: and the defendant in mercy &c. And let the defendant be acquitted of the said several sums of money and damages so remitted as aforesaid &c. 23. Judgment on Demurrer in Debt on Bond, with Suggestion of Breaches, &c. [See the forms, post, 344.] 24. Execution on a Judgment on Demurrer. BOOK II. PART III. PROCEEDINGS UPON NUL TIEL RECORD PLEADED. 1. Plea of Judgment recovered in another Court. In the Q. B. [or "C. P." or "Exch. of Pleas.”] D. ats. B. The day of A. D. The defendant, by D. A. his attorney, saith, that the plaintiff heretofore, on the This judgment was signed the 1840. day of A. D. The number of the roll is (a). day of A. D. 1840, in the court of Queen's Bench [or "C. P." or " Exch. of Pleas"] at Westminster, impleaded the said defendant in an action on promises, to the damage of the plaintiff of £- for not performing the very same identical promises in the said declaration mentioned, and such proceedings were thereupon had in the said court in that action that afterwards on the plaintiff, by the consideration and judgment of the said court, recovered in the said action against the defendant £ for his damages which he had sustained, as well on the occasion of not performing the same identical promises in the said declaration mentioned, as for his costs and charges by him about his suit in that behalf expended; whereof the defendant was convicted, as by the record and proceedings still remaining in the said court at Westminster more fully appears; which said judgment still remains in full force, not in the least reversed, satisfied, or made void. And this the defendant is ready to verify by the said record &c. [See 2 Chit. Ar. Pr. 672.] 2. Replication of Nul Tiel Record to Plea of Matter of Record of same Court (b). In the Q. B. [or "C. P.” or “ Exch. of Pleas."] B. The day of, A. d. 1840. The plaintiff saith", that there is not any record of the said V. supposed recovery [or "recognizance," or "writ"] in the said plea D. mentioned, remaining in the said court of Queen's Bench [or "Common Pleas" or 66 Exchequer of Pleas"] at Westminster aforesaid, in manner and form as the defendant hath above in his said plea alleged: (a) See 2 Chit. Ar. Pr. 672. See (b) See 2 Chit. Ar. Pr. 669. forms, Mansel's Prac. 134. and this the plaintiff is ready to verify, when, where, and in such manner as the court here shall order, direct, and appoint; and because the court here will advise themselves upon the inspection and examination of the said record by the defendant above alleged, a day is given to the parties aforesaid here until -, to hear the judgment of the said court thereupon; for that the said court here are not yet advised thereof. 3. Replication to Plea of Nul Tiel Record of same Court (a). [Same as in the preceding form to the asterisk*, and then thus:] that there is such a record of the said recovery [or "recognizance," or "writ"] remaining in the said court of Queen's Bench [or “C. P." or "Exch. of Pleas"] at Westminster aforesaid, as the plaintiff hath above alleged; and this the plaintiff is ready to verify by the said record, when, where, and in such manner as the court here shall order, direct, and appoint; and he prays that the said record may be seen and inspected + by the said court now here. But because the court here are not yet advised what judgment to give of and upon the premises, a day is therefore given to the parties aforesaid here until to hear judgment thereon; for that the said court here are not yet advised thereof &c. 4. Replication of Nul Tiel Record to Plea of Matter of Record of another Court. [Same as the form, ante, 310, No. 2, to the asterisk*, and then thus:] that there is not any record of the supposed recovery [or "recognizance,' or "writ"] in the said plea mentioned, remaining in the said court of Queen's Bench [or if the record pleaded is of the court of Common Pleas, "Common Pleas," or if of the Exch., say "Exch. of Pleas"] at say Westminster aforesaid, in manner and form as the defendant hath above in his said plea alleged; and this the plaintiff is ready to verify, when, where, and in such manner as the court here shall order, direct, and appoint. And hereupon the defendant is commanded that he have the said record here on and that he fail not at his peril: the same day is given to the plaintiff at the same place. 5. Replication to Plea of Nul Tiel Record of another Court. [Same as the form, supra, No. 3, to the dagger, and then thus:] by the said court here. And because the plaintiff hath not the said record now here in court, it is commanded to him that he have the same here on -, and that he fail not at his peril: the same day is given to the defendant at the same place. 6. Demand of Term and Number of the Roll, on Nul Tiel Record of same Court pleaded. In the Q. B. [or "C. P." or "Exch. of Pleas.”] A. B. v. C. D. I do hereby demand a note in writing of the term, and the number of the roll, whereon the supposed recovery in the plea (see the pleadings) in (a) See 2 Chit. Ar. Pr. 669. |