of inquiry may be executed, or such sheriff, deputy, or judge before whom such trial shall be had, 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 for a new inquiry or trial, or a judge of any of the said courts shall think fit to order that judgment or execution shall be stayed till a day to be named in such order."(1) at Form of Judgment. At which day come here, as well the plaintiff as the defendant, by their respective attorneys aforesaid [or, comes here the plaintiff, by his attorney aforesaid], and the said sheriff to wit, S. S., Esq. sheriff of [or chief justice, &c.], now here returns a certain inquisition indented and annexed to the said writ] taken before him [or them] in the county aforesaid, on by virtue of the said writ, by the oath of twelve good and lawful men of the said county of , by which it is found that the breach of the condition of the said bond, in the said writ mentioned, is true (or other finding), and that the plaintiff hath sustained damages by reason thereof to £ over and above his costs of suit in that behalf, and for those costs to 40s. Therefore it is considered that the plaintiff do recover against the defendant his said debt, and also one shilling for his damages which he hath sustained on occasion of the detention thereof. It is also considered that the plaintiff do recover against the defendant his costs aforesaid, by the said inquisition above found, and also £ for his costs of suit, by the court here adjudged, of increase to the plaintiff, which said debt, damages, and costs in the whole amount to £ It is also considered that the said plaintiff have execution against the defendant of the damages aforesaid to £ by the said inquisition above found, by reason of the said breaches of the said condition, together with the said costs so thereby also found, and the said costs of increase, according to the said statute in such case made and provided. Writ of inquiry not after judgment by default.]—When judgment is entered after demurrer or issue of nul tiel record, the proceedings are the same as where there is judgment by default. When issue is joined it is made up and delivered as in ordinary cases, without any special award of a jury, when the declaration sets out the condition of the bond and has the breaches assigned, (2) or, though not setting these out, when the plea makes it necessary in the replication to assign a breach.(1) Where to a general declaration a plea of non est factum, or non est factum and fraud is pleaded, the plaintiff may join issue, but he must enter a separate suggestion of breaches under the statute, and cannot, in the same replication, include both; (*) and the award of a jury must be to try the issue and assess damages on the breach suggested.(3) The proceedings at the inquisition are the same as when judgment has passed by default. Scire facias for further breaches.]--When further breaches are made after the inquisition, there must be a scire facias which recites the proceedings in the former action sufficient to show a warrant for the judgment, and then suggests the further breaches, or sets forth covenants not formerly included in the original action, and assigns breaches on them. If, however, the breach could have been assigned in the original action, it cannot be suggested in the scire facias.(4) The defendant pleads to the scire facias or makes default; and, if the latter, the plaintiff must again issue a writ of inquiry. The plaintiff, on an award of execution, is entitled to his costs on the scire facias.(3) (1) Roakes v. Manser, 1 C. B. 531; 3 D. & L. 17; Webb v. James, 6 M. & W. 645; 1 Dowl. N. S. 36; Scott v. Staley, 4 Bing. N. C. 724; 6 Dowl. 714. (2) 2 Saund. 187 e.; Ethersey v. Jackson, 8 T. R. 255; Homfray v. Rigby, 5 M. & Sel. 60. (3) Quin v. King, 1 M. & W. 42; Scott v. Staley, 4 Bing. N C. 724; Ethersey v. Jackson, 8 T. R. 255. A judge's order may be obtained to re-deliver a fresh issue including the suggestion, ibid. (4) Harrass v. Armitage, 12 Price, 441; 13 Price, 715. (5) 3 & 4 Will. 4, c. 42, s. 34. CHAPTER XXXV. MANDAMUS INJUNCTION-EQUITABLE DEFENCES. [This Chapter will be found at the end of the Volume for the convenience of including the latest decisions.] 1. In what cases.]—When a writ of summons is issued and served on a defendant for the payment of any debt and damages, the defendant can always, within four days, pay the debt and costs, whereupon the proceedings will be stayed.(1) If the four days are past, he can only apply at chambers for a judge's order to stay on payment of the debt and costs up to the time of the application. The costs must in that case be taxed, unless the parties agree upon a sum. The defendant cannot obtain a stay of proceedings in any case after the four days, as a matter of right, as the court or a judge exercises a discretion, and therefore may impose terms. The court has no power to order a stay on payment at a future day; and hence the plaintiff's consent must be obtained before such order can be made. (2) If the order be that there shall be a stay on payment of debt and costs within a certain time, the plaintiff (1) C. L. P. Act, 1852, s. 8; ante, pp. 88 to 90. (2) Norton v. Fraser, 2 M. & Gr. 916; 3 Sc. N. R. 293; Filmer v. Burnby, 2 M. & Gr. 529; Michael v. Myers, 6 M. & Gr. 702. is not prevented from going on with the action, if the payment is not made, for he could not obtain an attachment ;(1) the order should therefore be drawn up so as to make the defendant absolutely to pay the debt and costs, in which case an attachment may be had. (2) The defendant may obtain a stay as to one or more counts of a declaration, leaving the plaintiff to proceed or not as to the others. The court will not stay proceedings on a mere affidavit that no debt is due, or that there is no cause of action ;(3) nor on an affidavit of a mere equitable defence.(*) Where the action, therefore, is for a liquidated demand, the defendant may obtain a judge's order to stay on payment of debt and costs, (5) as in debt on a judgment; (6) or for rent;(7) or for a penalty under a statute.(3) “In any action against an acceptor of a bill of exchange, or the maker of a promissory note, the defendant shall be at liberty to stay proceedings on payment of the debt and costs in that action only."(9) So an indorser may obtain a stay ;(") but he cannot afterwards recover the costs paid against the acceptor.(") The plaintiff who has brought several actions on a bill, and is paid the debt and costs in one, can proceed with the other actions for costs. (12) Where a bond has a condition or defeasance making the same void on payment of a lesser sum at a day or place certain, "if at any time pending an action on such bond with a penalty, the defendant shall bring into the court where the action shall be depending, all the principal money and interest (13) due (1) on such bond, and also all such costs as have been expended in any suit or suits in law or equity upon such bond, the (1) Smith v. Smith, 2 N. R. 473; Fricker v. Eastman 11 East, 319; Hand v. Dinely, 2 Str. 1220. (2) Ibid.; Scurrall v. Horton, Barnes, 283. (3) Smith v. Curtis, 2 Dowl. 223; Sherwood v. Benson, 4 aunt. 631. (4) Barlow v. Leeds, 5 N. & M. 426; 227; Jones v. Bramwell, 3 Dowl. 483; 6 M. & W. 457; 8 Dowl. 369. (3) Gibbon v. Copeman, 5 Taunt. 840. () Simpson v. Stone, 2 W. Bl. 785. (7) Lee v. Irish, Hardr. 173. Steel v. Bradfield, 4 Tant. (s) Webb v. Punter, 2 Str. 1217; Stock v. Eagle, 2 W. Bl. 1052. (9) Rule Pr. 24, H. T. 1853. (10) Smith v. Dudley, 4 T. R. 691. (1) Dawson v. Morgan, 9 B. & C. 620. (12) Randall v. Moon, 12 C. B. 261. (13) England v. Watson, 9 M. & W. 333; 1 Dowl. N. S. 398. (14) Robinson v. Brown, 3 C. B. 54, said money so brought in shall be deemed and taken to be in full satisfaction and discharge of the said bond, and the court shall and may give judgment to discharge every such defendant of and from the same acccordingly."(1) In actions on bonds for payment of an annuity, or of money by instalments, the defendant may also stay proceedings on payment of the arrears and costs after judgment, such judgment standing as security for future payments.(2) Where, however, by the bond the whole becomes due on default as to one instalment, the court will not stay proceedings. (3) Where an action was brought against a surety for a due accounting of moneys, he was not allowed to stay the action as to certain items in the particulars of demand. on payment of the amount of them into court.(*) In the case of bonds for the payment of mortgage money, or performance of covenants in a mortgage deed, the court may stay proceedings on payment of principal and interest to the mortgagee or into court. (5) n.(®) Where the action is for damages unliquidated, the court will not in general stay proceedings on payment of a sum. Yet in an action of trespass for taking goods where no special damage was laid, the action has been stayed on the defendant restoring the goods or paying their full value with costs; (2) though it has been refused when the plaintiff could not thereby be put in the same situation as before.(*) So a stay has been ordered in trover or detinue for goods or title deeds, where the damages are merely nominal.(*) After a verdict in an action for unliquidated damages, the court will not interfere to stay proceedings on payment of (1) 4 & 5 Anne, c. 16, ss. 12, 13. The court refers it to the Master to compute the principal and interest. (2) 8 & 9 Will. 3, c. 11, s. 8; Vansandau v. ———. 1 B. & Ald. 214. (3) Gowlett v. Hanforth, 2 W. Bl. 958; Bonafous v. Rybot, 3 Burr. 1374. (4) Kepp v. Wiggett, 4 C. B. 678. (*) 7 Geo. 2, c. 20, s. 1; Berthen v. Street, 8 T. R. 326; Sutton v. Rawlings, 3 Exch. 407; Smeeton v. Collier, 1 Exch. 457. (*) Calvert v. Jolliffe, 2 B. & Ad. 418; Bernasconi v. Fairbrother, 7 B. & C. 379. (1) Pickering v. Trust, 7 T. R. 53. (*) Gibson v. Humphrey, 2 Dowl. 68. (9) Ibid.; Phillips v. Hayward, 3 Dowl. 362; Peacock v. Nicholls, 8 Dowl. 367; Lucas v. London Dock Company, 4 B. & Ad. 378; Coombe v. Sanson, 1 D. & R. 201; Yates v. Dublin l'acket Com |