CHAP. V. to return to their respective homes as soon as possible. And this deponent OF COSTS, &c. further saith, that the said witness T. W. was necessarily absent, in coming from and returning to his said place of abode, — days; that the said J. J. was necessarily absent, in coming from and returning to his said place of abode, days; that the said witness J. M. was necessarily absent, in coming from and returning to his said place of abode, days; that the said witnesses R. C. and M. A. were necessarily absent, in coming from and going to their places of abode, days; and that this deponent was necessarily absent, in coming from and returning to his place of abode, and entering into the necessary negotiation with the defendant's attornies, days. And this deponent, A. A. for himself saith, that he delivered a brief in this cause, consisting of sheets of paper, to Mr. with guineas, and his clerk brief in this case to Mr. and paid him thereshillings; and that he delivered another and paid him therewith — guineas, and shillings; that he also paid to Mr. guineas, and his clerk shillings; and to Mr. his clerk fee a refresher fee of for a refresher guineas, and his clerk shillings. That in the opinion of this deponent, it was necessary and expedient to have a consultation upon the necessary evidence in this cause with the above-mentioned counsel, previous to the trial of this cause, and that he did have such consultation accordingly, and that he paid a consultation fee of guineas to Mr. and to his clerk guineas to Mr. -, and to shillings; and also a similar fee of his clerk shillings; that he had paid to Mr. -, special pleader, for advising upon the evidence in this cause, guineas. And this deponent, A. A., for himself saith, that the said several sums of money following have been paid to and for the said several witnesses, that is to say, the sum of £—— to the said T. W.; the sum of £- to the said J. J.; the sum of £—— to to the said R. C., for their loss of the said M. A.; and the sum of £ Sworn &c. [Deponents' signatures.] 5. Notice of in- In the K. B. [or "C. P.," or " Exch. of Pleas."] tended taxation of costs. Between A. B., plaintiff, and C. D., defendant. Take notice that the master [or in C. P. "the prothonotary "] will tax the costs between the parties in this cause to-morrow, [or "on hour of o'clock of the noon. Dated this next,"] at the 1837. 6. Of Signing Final Judgment after verdict or P. A. [plaintiff's] attorney [or "agent”]. To Mr. D. A. [defendant's] attorney [or "agent"]. Mr. Tidd observes, that at common law the jury process being returnable only in term time, the final judgment after verdict or nonsuit could not have been signed in or during now under 1 W. any vacation between the terms. (0) That practice, however, nonsuit at com mon law, and 4. c. 7, in vaca tion, &c. (0) Tidd's Prac. 9th edit. 950. being inconvenient, and not unfrequently attended with loss, CHAP. V. by the defendant getting out of the way or eloigning his Or Costs, &c. personal property, was at length altered by the statute 1 W. 4, c. 7, sect. 2, which we have seen (p) enacts that "in all cases where the judge before whom the issue is tried shall, in case the plaintiff shall become nonsuit, or a verdict shall be given for the plaintiff or defendant, certify (9) under his hands, on the back of the record, at any time before the end of the sittings or assizes, that in his opinion execution ought to issue forthwith, or at some day to be named in such certificate, and subject or not to any condition or qualification; and in case of a verdict for the plaintiff, then either for the whole or for any part of the sum found by such verdict, a rule for judgment may be given, (r) costs taxed, and judgment signed forthwith; and execution may be issued forthwith or afterwards, according to the terms of such certificate, on any day in vacation or term: Provided always, that it shall be lawful for the party entitled to such judgment to postpone the signing thereof. By the above statute (s) "every judgment to be signed by 7. Of entering "virtue of that act may be entered and recorded as the judgment and recording 66 of the Court wherein the action shall be depending although "the Court may not be sitting on the day of the signing "thereof, (t) and every execution issued by virtue of that act "shall and may bear teste on the day of issuing thereof, (u) and "such judgment and execution shall be as valid and effec"tual as if the same had been signed and recorded and issued according to the course of the common law." Before the passing of this act the allegation that a judgment had been signed out of term would have been erroneous on the face of it; but now the Court will take notice that a judgment may be signed in vacation under this statute. (v) And it has been determined, that in declaring on a judgment signed in vacation, on certificate by the judge at nisi prius for immediate execution under the above statute, the day of signing judgment should be stated according to the fact, and not laid as of the preceding (p) Ante, and see Tidd's New Prac. 535. (q) For the form of the certificate, see Appendix to Tidd's Sup. 1833, p. 321. (r) As to the rule for judgment, see Tidd's Prac. 9th edit. 903; Tidd's New Prac. 294, 295, 538. The rule for judg ment is now abolished, ante, 101, 102. (s) Stat. 1 W. 4, c. 7, s. 3. (t) As to the entry of judgments, sec Tidd's Prac. 9th ed, 931, 932. (u) And see stat. 3 & 4 W. 4, c. 67, s. 2, by which all writs of execution may be tested on the day on which the same are issued, and be made returnable immediately after execution thereof, Tidd New Prac. 567. (v) Engleheart v. Eyre, 5 Bar. & Ad. 70, per Parke, J. judgment. term; (r) but it is enough to set out the judgment as it appears upon the record, and the certificate need not be stated. (x) The postea, however, in such a case, should be so framed that the judgment may appear to be warranted by the previous finding of the jury. (x) But where, on nul tiel record pleaded to debt on recognizance of bail, the postea shown to the Court proved erroneous in this respect, leave was given to amend it, the defendants also having leave to plead de novo. (y) The entry of final judgment after verdict or nonsuit begins with a copy of the issue to the end of the award of the venire facias, after which it proceeds with the jurata as in the record of nisi prius. It then states the return of that record by the chief justice or justices of assize, with the postea indorsed thereon, and concludes with the judgment of the Court, whether it be for the plaintiff on a verdict, or for the defendant on a verdict or nonsuit. The form of a judgment for the plaintiff in assumpsit is given in the schedule annexed to the late statutory rules, (z) and is presently stated, (a) and may be readily applied to the judgment in other actions. (b) By the late statutory Reg. Gen. H. T. 4 W. 4, reg. 3, all judgments, whether interlocutory or final, shall be entered of record of the day of the month and year, whether in term or vacation, when signed, and shall not have relation to any other day. Provided that it shall be competent for the Court or a judge to order a judgment to be entered nunc pro tunc. (c) As the plaintiff might at common law almost immediately after verdict, by abandoning his claim to costs, issue execution (d) for the debt or damages found by the jury, and if the defendant would be secure in avoiding the effect of the execution, he must either issue a writ of error, or bonâ fide sell or assign his property to a creditor or to trustees for the benefit of his creditors generally, or of one or more particular creditors, and be well advised upon the proper course, to act honestly and securely in this respect, the best assistance and advice is essential in this state of affairs; and honourable conduct must be evinced. The character of the client and attorney are at stake, (1) Engleheart v. Eyre, 5 Bar. & Adol. 68; 2 Nev. & M. 849, S. C.; ante, 105. (y) Ibid. (z) R. Pl. H. 4 W. 4, sched. No. 3; 5 Bar. & Adol. Appendix, xi. xii.; 10 Bing. 473; 2 Crom. & M. 26, 27; Appendix, Tidd's New Prac. s. 11. (a) Post, 107. (b) As to the entry of judgment after verdict, &c. see Tidd's Prac. 9th ed. 931. And for the forms of judgments after ver dict or nonsuit, &c. see Tidd's Prac. Forms, 332, &c. (c) As to the judgment nunc pro tunc, see Tidd's Prac. 9th ed. 932, 933. (d) Butler v. Bulkley, 8 Moore, 104; 1 Bing. 233, S. C. and indiscreet conduct may be ruinous to each. The plaintiff should be on the alert to press on to judgment and execution as quickly as the rules of practice permit, unless he have just confidence in the assurance of the defendant, so as in prudence to permit delay. If he have, then humane indulgence to a debtor unquestionably should be evinced. But if the creditor be himself a debtor to others, he should consider his means to satisfy all, or at least should consult them. It will be observed, that, although the signing of judgment is one of the most important proceedings in a cause, yet, except in cases of actual argument before the Court, (and pending which at least four of the judges usually attend), no judge is really present, nor personally appears at the time judgment is signed or given, or when the execution is awarded or issued, but the plaintiff takes judgment as a matter of course and of absolute right, and at his own risk as to regularity. If the plaintiff's attorney will give up or waive the recovery of costs from the defendant, he may, and (notwithstanding the defendant has obtained a rule to be present at the taxation of costs) without giving any notice of taxation, sign Judgment and issue Execution; and this, when the debt is large or the costs are small, is sometimes expedient, (e) because the creditor who first issues execution is in general most likely to obtain satisfaction of his debt. The attorney for the successful party usually draws up the terms of the judgment, and which when for the plaintiff in assumpsit is as follows: OF COSTS, &c. 9. The forms of the different judgments. Copy the issue to the end of the award of the venire and proceed as fol- 1st. In Aslows:] shall first come on Afterwards the jury between the said parties is respited until the day of —, [return of distringas or habeas corpora] unless the day of - - [day of sittings, or nisi prius] at to the form of the statute in that case made and provided, for default of the jurors, because none of them did appear. Afterwards on the day of according the parties aforesaid, by their respective attornies aforesaid, [or as the case may [Here copy postea.] sumpsit, for plaintiff. Judgment signed the day Therefore it is considered that the said A. B. do recover against the said C. D. his said damages, costs, and charges, by the jurors aforesaid in form aforesaid assessed: And [when costs have been taxed] also £--, for his costs and of —, A. D. (e) Somerville v. White, 5 East, 146; Doe d. Dynely, 4 Taunt. 289; Chit. Sum. Prac. 195; Tidd, 9th ed. 994; 1 Arch, K. B. Prac. 5th ed. 399; Barnes, 212, 1838. ed the of A. D. charges, by the Court here adjudged of increase to the said A. B. with his Copy the issue to the end of the award of the venire and proceed as follows:] afterwards the jury between the parties is respited until the [return of distringas or habeas corpora] day of unless (g) shall first come on the [day of sitings or nisi prius] day of, at ——, -, according to the form of the statute in that case made and provided for default of the jurors, because none of them did appear. Afterwards on the [day of signing final judgment] day of ——, came the parties aforesaid, by their respective attornies aforesaid, [or as the case may Judgment sign- record had before him in these words, [copy postea.] Therefore it is considered Mercy. Judgment for plaintiff in debt. Judgment sign ed the of day of - Proceed as in ordinary cases, (see form, ante, 107,) to the end of the statement of the postea inclusive and then state the judge's certificate, thus:] “and hereupon the said Sir ——, knight, before whom the said issue was tried in form aforesaid, and before the end of the sittings of Nisi Prius [or "Assizes"], at which the said cause was tried, to wit, on the -, in the year of our Lord [at Westminster aforesaid], certified under his hand upon the back of the record of and in the said action, according to the form of the statut in such case made and provided, that he was of opinion that execution ought to issue on — the day of- ,then next, for the sum found by the said verdict. And, thereupon, afterwards, and after the granting the said certificate, to wit, on the - day of, in the year of the reign of our said lord the king, comes here the said plaintiff, by his attorney aforesaid, and prays judgment, and that the damages, costs, and charges, by the jurors aforesaid assessed, and also his costs and charges by him about his suit in this behalf expended, of increase may be adjudged to him, &c. Therefore it is considered by the Court here, according to the form of the statute in such case made and provided, that the said plaintiff do recover against the said defendant his said damages, [&c. conclude as in ordinary cases, see form, ante, 107, and infra, &c.] Commence and proceed in the entry of the judgment as in the form, ante, 107, but state the judgment itself, thus:] Therefore it is considered that the plaintiff do recover against the defendant his said debt and his damages aforesaid on occasion of the detention thereof to 1s., together with his costs and charges -day aforesaid to 40s. by the jurors aforesaid in form aforesaid assessed, and also £, for his said costs and charges, by the Court here adjudged of increase to the plaintiff and with his assent, and the defendant in mercy, &c. [If the defendant has denied his deed, then instead of the words " and the defendant in A. D. (f) Form prescribed by Reg. 1, Hil. Term, 4 W. 4. (g) As to the mode of filling up this blank, see T. Chitty's Forms, 145. (h) Here insert the words "the said Chief Justice," or " Justice," or " Baron," "Justices of Assize," as the case may or be. |