Office, Royal Courts of Justice, Strand, London, on in the -noon, for the purpose of obtaining the Master's assessment of the mode and amount of security to be given by the above-named defendant, consequent upon the removal of this cause by certiorari from the County Court of N-, holden at H, to the King's Bench Division of the High Court of Justice, pursuant to the statute in that behalf. Dated To the above-named plaintiff, and Mr. X. Y., his solicitor. Yours, &c., D. Z., Defendant's solicitor. 8. Bond on Removal (h). Know all men by these presents that we, C. D., of and G. H., of, are jointly and severally held and firmly bound to A. B. in the sum of (i) pounds, to be paid to the said A. B., his certain attorney, executors or administrators, for which payment well and truly to be made we bind ourselves, and each and every of our heirs, executors and administrators, firmly by these presents. Sealed with our seals. Dated this day of A.D. Whereas an action of replevin was on commenced in the County Court of —, holden at —, wherein A. B. was plaintiff and the said C. D. was defendant: And whereas the said C. D. has made it appear to the satisfaction of, Esquire, one of the Masters of the Supreme Court [or to the Honourable Mr. Justice one of the Justices of the High Court of Justice], that the rent in respect of which the distress in this behalf was taken amounts to more than £20 [or as the case may be], and a writ of certiorari has been issued, directed to the Judge of the said County Court, to remove the plaint and proceedings into the King's Bench Division of the said High Court: Now the condition of this obligation is such that, if the said C. D. do defend the said action in the said Division of the High Court of Justice with effect, and, unless the said A. B. shall discontinue or shall not prosecute such action, or shall become nonsuit therein, if the said C. D. do prove before the said Court that the said C. D. has good ground for believing either that the title to some corporeal or incorporeal hereditament the rent or value whereof exceeded £20 by the year, or to some toll, market, fair or franchise, was in question, or that the rent or damage in respect of which the distress in this behalf was taken, or the value of the goods seized, exceeded £20, then this present obligation shall be void, otherwise to remain in full force and virtue. Signed, sealed and delivered by the above C. D. (seal.) E. F. (seal.) G. H. (seal.) (h) A bond to this effect is required by the C. C. Act, 1888, s. 137; instead of giving the bond, a deposit of money may be made with a Master (see the C. C. Act, 1888, s. 109). (i) A sum not exceeding £150. C.F. 41 I, 9. Return by County Court Judge to Certiorari. Esquire, the Judge of the County Court of, holden at in the said county, to our sovereign lord the King do most humbly certify that before the date and suing forth of the writ of our said lord the King to me directed and to this schedule annexed (to wit), on A. B., in the said writ named, entered in the office of the Registrar of the said County Court at aforesaid a plaint in writing against in a C. D., in the said writ also named, for taking and unjustly detaining certain goods and chattels of the said A. B.: And that afterwards on summons on the said plaint was issued under the seal of the said Court, according to the form of the statute in that behalf, whereby the said C. D. was summoned to appear at the said Court to be holden at aforesaid, on to answer the said A. B. to a claim, the particulars of which were thereunto annexed, and are as follows:-"In the County Court of [&c., copy the particulars]." And this is the tenor of the record and process of the said plaint with all things touching the same, as it remains before me. 10. Memorandum of Appearance of Defendant (k). [Title, &c., as in No. 7.] Enter an appearance for C. D. in this action. 11. Notice of filing Certiorari and Demand of Statement of Claim. [Title, &c., as in form No. 7, supra.] holden at The defendant having sued out of the King's Bench Division of the High Court of Justice a writ of certiorari, directed to the Judge of the County Court of for removing the above cause out of the said County Court into the said Division of the said High Court, returnable forthwith, I do hereby give you notice that the said defendant has filed the said writ, and the return thereof, with the proper officer of the said Division of the said High Court, and has entered his appearance in the said action in that Court; and the plaintiff is hereby (k) See ante, p. 72. It seems doubtful whether the defendant can be compelled to appear, as he formerly might, by means of a pone per vadios and subsequent process, as pointed out in 2 Pract. 14th ed. 1268, and it seems that the plaintiff's only remedy is to apply for and obtain a procedendo (see 2 Pract. 14th ed. 1560 ; and post, Part XV., Ch. IV., Sect. I., forms No. 14 et seq., which may be adapted). required to proceed in the said action, otherwise the defendant will apply to have the same dismissed [or to proceed in the said action by delivering a statement of claim in four days, otherwise a judgment in default (7) will be signed against him]. Dated To Mr. X. Y., Plaintiff's solicitor [or agent]. Yours, &c., D. Z., Defendant's solicitor [or agent]. 12. Summons for Directions and Proceedings in Default. 1. [State the claim as in No. 11, ante, p. 635. Conclude as usual; see ante, p. 102.] 14. Subsequent Proceedings. [See the forms, ante, pp. 635 et seq.] (1) But notwithstanding this notice, if the plaintiff refuses to proceed with the action after its removal from the County Court, there is, it seems, no means of compelling him to do so, as the certiorari gives no day to the parties, and the only remedy for the defendant is by action on the bond (see Garton v. G. W. R. Co., 1 E. & E. 258). The words enclosed in brackets in the above form (No. 11), which were formerly used, appear to be mere brutum fulmen. CHAPTER III. DOWER. 1. Writ of Summons and Statement of Claim. Use the ordinary writ of summons, and describe the plaintiff in the title of the action and the body of the writ as "A. B., widow." R. S. C., App. A., Pt. III., Sect. IV., provides the following form of indorsement : "The plaintiff's claim is for dower." If the defendant does not appear within the time limited for his appearance after being served with the writ, the plaintiff should file a statement of claim under Ord. XIII., r. 12, and then, upon the defendant making default in delivery of defence, proceed to set down the action on motion for judgment. See ante, pp. 75 and 371. : 2. Writ of Inquiry in Dower on Judgment by Default. [Title, &c., of action as usual.] Edward the Seventh [&c., as usual; see ante, p. 390], to the sheriff of, greeting: Whereas it has been adjudged that the plaintiff recover against the defendant her seisin of her third part of [ten acres of arable land, ten acres of meadow land, ten acres of pasture land, and ten acres of other land] with the appurtenances in the parish of in your county, as her dower and free bench of the endowment of G. H., deceased, her late husband [let this follow the terms of the judgment] Therefore we command you that without delay you cause the said A. B. to have the full seisin of the said third part with the appurtenances, to hold to her in severalty by metes and bounds. And how you shall have executed this writ make known to us in our said Court immediately after the execution thereof. We command also that, by the oath of good and lawful men of your bailiwick, you diligently inquire if the said G. H., the late husband of the said plaintiff, died seised of the said tenements with the appurtenances in fee simple or fee tail, and if by that inquisition you shall have so found, then by their oath that you diligently inquire how long time has elapsed from the time of the death of the said G. H., and how much the said tenements with the appurtenances are worth by the year in all issues except reprises according to their true value, and what damages the said plaintiff hath sustained by occasion of the detention of the said dower beyond the said value. And the inquisition which you shall have thereupon made make known to our said Court at the same time under your seal and the seals of those by whose oath you shall have made that inquisition and this writ. Witness [&c., conclude as in form No. 2, ante, p. 391; see also post, Part XI., Ch. IV., Sect. II.]. 3. Notice of Execution of Writ of Inquiry. the day of Take notice that a writ of seisin and inquiry of damages in this action will be executed on 19-, between the hours of -- and of the clock in the forenoon [or afternoon] of the same day, at day of 1 An inquisition indented taken at the at to wit. J of W., the in the year of our Lord before me Esquire, sheriff of the county aforesaid, by virtue of his Majesty's writ to me directed in this behalf, and to this inquisition annexed, by the oath of R. F., T. D. [&c., &c., names of jurors], good and lawful men of my bailiwick, who being sworn and charged say upon their oath that G. H., the late husband of A. B., in the said writ named, died seised of [a close or inclosure of land called one other close or inclosure of land called and a house or building called con taining altogether (nine acres), with the appurtenances, in the parish of in the county aforesaid, in fee simple]: And the jurors aforesaid upon their oath aforesaid do further say that years have elapsed from the time of the death of the said G. H., and that the said tenements with the appurtenances are worth by the year in all issues above reprises according to their true value £- and that the said A. B. hath by occasion of the detention of sustained damages to the sum of £the dower in the said writ mentioned beyond the said value: And that I, the said sheriff, on the aforesaid day of taking the said inquisition have caused the said A. B. to have the full seisin of the third part of the closes or inclosures of land and building aforesaid with the appurtenances, to hold to her in severalty by metes and bounds as by the said writ it is commanded. In witness whereof as well I the said sheriff as the jurors aforesaid have severally set our respective seals to this inquisition on the day and year at the place aforesaid. [Seals of sheriff and jurors.] |