argument, and forthwith give notice in writing to the opposite party, and proceed to the argument thereof as on a demurrer, without any rule or motion for a concilium.

This re-enacts, with the alterations rendered necessary by 15 & 16 Vict., c. 76, s. 152, ante p. 82, a rule of H. T., 4 Wm. 4, r. 14.

The case is set down with one of the masters of the court in which the original judgment was given. See 7 Wm. 4, and 1 Vict., c. 30. No time is fixed for setting it down, but care should be taken to enter it in time for copies to be delivered to the judges.

After issue joined in error in law, either party may set down the case for argument four days before the day of hearing; South Eastern Railway Company v. South Western Railway Company, 22 L.J. Exch. 72.

68. Four clear days before the day appointed for argument, the plaintiff in error shall deliver copies of the judgment roll of the court below to the judges of the Queen's Bench on error from the Common Pleas or Exchequer, and to the judges of the Common Pleas on error from the Queen's Bench; and the defendant in error shall deliver copies thereof to the other judges of the court of Exchequer Chamber before whom the case is to be heard; and in default by either party, the other party may on the following day deliver such books as ought to have been delivered by the party making default, and the party making default shall not be heard until he shall have paid for such copies, or deposited with the master a sufficient sum to pay for such copies.

This rule is a re-enactment of H. T., 4 Wm. 4, r. 15 (as amended by 7 Wm. 4, and 1 Vict., c. 30). The words in italics are new.

The rule extends to a writ of false judgment; Dempster v. Purnell, 1 Dowl. N. S. 168; 4 Sc. N. R. 30, S. C. See ante, r. 16, n. (b).

69. The costs of proceedings in error shall be taxed and allowed as costs in the cause.

By one of the proposed new rules for Trinity Term, 1853, double costs in error shall not be allowed to either party; post p. 283.

EXECUTION.

70. It shall not be necessary, before issuing execution upon any judgment whatever, to enter the proceedings upon any roll.

See 1 Chit. Arch, 528; and Deemer v. Broker, 4 Dowl. 9.

71. No writ of execution shall be issued till the judgment paper, postea, or inquisition, as the case may be, has been seen by the proper officer, nor shall any writ of execution be issued without a præcipe being filed with the proper officer.

The first part of this rule is a re-enactment of the latter part of R. H., 2 Wm. 4, r. 75.

As to the præcipe, see M. T., Wm. 4, in the Exchequer.

72. Every writ of execution shall bear date on the day on which the same shall be issued (a), and shall be tested in the name of the Lord Chief Justice or of the Lord Chief Baron of the court from which the same shall issue (b), or in case of a vacancy of such office then in the name of the senior puisne judge of the said court, and may be made returnable on a day certain in term (c).

(a) By 3 & 4 Wm. 4, c. 67. s. 2, it was provided, that all writs may be tested on the day on which the same are issued; and it was not compulsory therefore to do so; Brocher v. Pond, 2 Dowl. 472.

(b) This was the former practice. See 1 Chit. Arch. 540; and Sutton v. Lord Cardross, 1 Dowl. 511.

(c) By 3 & 4 Wm. 4, c. 67, s. 2, it was provided, that all writs may be made returnable immediately after the execution thereof. Before that statute, writs of execution had to be made returnable on a day certain in term; Furtado v. Miller, Barnes, 213; and see Drake v. Gough, 1 Dowl. N. S. 573; Kemp v. Hyslop, 1 M. & W. 58, and post r. 74. It is to be observed, that the language in this rule differs from that in rule 74, and that it is not compulsory to make a writ returnable on a day certain in term. This rule includes the writ of hab. fac. poss. in ejectment; Doe d. Hudson v. Roe, 21 L. J., Q. B. 359.

73. Every writ of execution shall be indorsed with the name and place of abode or office of business of the attorney actually suing out the same, and in case such attorney shall not be an attorney of the court in which the same is sued out, then also with the name and place of abode or office of business of the attorney of such court in whose name such writ shall be taken out; and when the attorney actually suing out any writ shall sue out the same as agent for an attorney in the country, the name and place of abode of such attorney in the country shall also

be indorsed upon the said writ; and in case no attorney shall be employed to issue the writ, then it shall be indorsed with a memorandum expressing that the same has been sued out by the plaintiff or defendant in person, as the case may be, mentioning the city, town, or parish, and also the name of the hamlet, street, and number of the house of such plaintiff's or defendant's residence, if any such there be.

By M. T., 1 Wm. 4, r. 2, in the Exchequer, the name and address of the attorney issuing the writ had to be indorsed; but there does not appear to have been any such rule in the other courts.

And by a rule of the Queen's Bench of H. T., 2 & 3 Geo. 4, the attorney for the plaintiff had to indorse on writs of fi. fa. and ca. sa. the place of abode, and addition of the party against whom the writ was issued. There was no such rule in the other courts (see Strong v. Dickenson, 5 Dowl. 99; Brown v. Hudson, 8 Dowl. 4): and hereafter such indorsement will not be required in the Queen's Bench.

74. Writs of capias ad satisfaciendum for the purposes of outlawry on final process, or to fix bail, must be made returnable on a day certain in term, and may be so returnable on any day in term, and it shall be sufficient for either purpose that there be eight days (a) between the teste and return.

This is a new rule confirming the practice as laid down in the recent cases of Lewis v. Holmes, 10 Q. B. 896; Levy v. Hamer, 19 L. J., Exch. 304; 5 Exch. R. 518, S. C., where it was held, that proceedings to outlawry could not be founded on a ca. sa. returnable "immediately after the execution thereof;" and in the case of Kemp v. Hyslop, 1 M. & W. 58, as to fixing bail.

(a) It was formerly necessary that there should be fifteen days between the teste and return, when the ca. sa. was sued out for the purpose of proceeding to outlawry, and perhaps of fixing bail. (See notes to rule 72; and 1 Chit. Forms of Prac. Proc. 320.)

75. A writ of capias ad satisfaciendum to fix bail shall have eight days between the teste and return (a), and must, in London and Middlesex, be entered four clear days in the public book at the sheriff's office (b).

(a) See H. T., 2 Wm. 4, r. 77, by which it was ordered, that when the action was commenced by original, the time should be fifteen days; when commenced by bill, eight days. And see Kymer v. Sysderff, 4 M. & G. 636; 5 Scott, N. R. 193, where it

was held, that eight days were sufficient between the teste and return; but there seems to have been no such decision in the other

courts.

(6) This latter part of the rule re-enacts the latter part of H. T., 2 Wm. 4, r. 77.

76. Every writ of execution shall be indorsed with a direction to the sheriff, or other officer or person to whom the writ is directed, to levy the money really due and payable and sought to be recovered, under the judgment, stating the amount (a), and also to levy interest thereon, if sought to be recovered, at the rate of four pounds per centum per annum from the time when the judgment was entered up, or if it was entered up before the 1st of October 1838, then from that day (b); provided that in cases where there is an agreement between the parties that more than four per cent. interest shall be secured by the judgment, then the indorsement may be accordingly to levy the amount of interest so agreed.

This rule regulates the indorsements on writs of execution. There does not appear to have been any rule or statute requiring this indorsement previous to this time (except after judgment for a penalty, when plaintiff sought to recover interest, H. T., 3 Vict.), though the invariable practice was so to indorse the writ. See 1 Chit. Forms of Prac. Proc. 321.

(a) This must not be a larger sum than is actually due upon the judgment (see Plevin v. Henshall, 2 Dowl. 743; Webber v. Hutchins, 8 M. & W. 319); but, probably, if the indorsement be made by mistake to levy too large a sum, an amendment would be allowed (see Laroche v. Wasbrough, 2 T. R. 737; M'Cormack v. Melton, 1 Ad. & E. 331; Evans v. Manero, 7 M. & W. 463). An action would not lie for indorsing the writ for too much, unless malice and want of probable cause be shown; De Medina v. Grove, 10 Q. B. 172; or perhaps if there had been a previous agreement between the parties as to the terms of execution, see per Parke, B., in Wentworth v. Bullen, 9 B. & C. 849.

See for the case where the writ has been made out for too little, Hunt v. Passmore, 2 Dowl. 414.

(b) The right to this interest is given by 1 & 2 Vict., c. 110, s. 17. See 1 Chit. Arch. 473; and Bishop v. Hatch, 16 Jur. 1044, Q. B.

77. In cases of an assessment of further damages, pursuant to the statute of 8 & 9 William III., it shall be stated in the body of the writ of execution that the sheriff, or other officer or person to whom the writ is directed, is

to levy interest on the damages assessed, and costs taxed in that behalf, at the rate of four pounds per centum per annum from the day on which execution was awarded, unless execution was awarded before the 1st of October 1838, and in that case from that day.

This is a re-enactment of H. T., 3 Vict. The words in italics

are new.

REVIVOR AND SCIRE FACIAS.

78. A plaintiff shall not be allowed a rule to quash his own writ of scire facias or revivor, after a defendant has appeared, except on payment of costs.

This is a re-enactment of H. T., 2 Wm. 4, r. 78. The words in italics are new. The costs are the costs of the proceedings on the writ of revivor, or scire facias only; Oliverson v. Latour, 7 Dowl. 605. The rule is a rule nisi only; ib. 605; Ade v. Stubbs, 4 Dowl. 282.

AUDITA QUERELA.

79. No writ of audita querela shall be allowed unless by rule of court or order of a judge.

There was an old rule in the Queen's Bench (9 Jac. 1) which required this writ to be moved for in open court. This rule was, however, only declaratory of the common law; and in a recent case in the Exchequer, it was held that the writ must be obtained by motion in open court, upon affidavit of the facts; Dearie v. Ker, 18 L. J., Exch. 448; 4 Exch. R. 82, S. C.

ENTRY OF SATISFACTION ON ROLL.

80. In order to acknowledge satisfaction of a judgment it shall be requisite only to produce a satisfaction piece, in form as hereinafter mentioned; and such satisfaction piece shall be signed by the party or parties acknowledging the same, or their personal representatives; and such signature or signatures shall be witnessed by a practising attorney of one of the courts at Westminster expressly named by him or them, and attending at his or their request, to inform him or them of the nature and effect of such satisfaction piece before the same is signed, and which attorney shall declare himself, in the attestation thereto, to be the attorney for the person or persons so signing the same, and state he is witness as such attorney (provided that a judge at chambers may make an order dispensing with such signature under special