CHAP. V. OF COSTS, &c. Docket paper of judgment. Memorial of registry of judgment in Middlesex or Certificate of the Master or Prothonotary thereon. Affidavit of signature. usually attends two days before every term to receive and file the rolls, which ought to be so carried in. No great attention, however, seems to be paid to these rules, as they are merely directory, and rolls are now received after the time mentioned in them, without the leave of the Court, upon paying a post terminum of 4s. 8d. to the officer. In a late case the Court refused to order a judgment roll to be taken off the file, although it had not been carried in for twenty-four years after the judgment, it appearing that the judgment had been marked by the proper officer at the time of signing the same, and had been then regularly docketed, so as to affect purchasers; but though the motion was refused, the Court, in order to mark their disapprobation of the negligence and delay of the plaintiff's attorney, discharged the rule without costs. (q) And if an attorney neglect to enter and docket the judgment. in due time, by which a loss arises to his client, it seems he would be liable to an action. (r) The opposite party may also in most cases, by summons before a judge and his order thereon, compel the attorney for the prevailing party to enter the judgment on the roll, and docket it as in the subscribed forms. (s) (q) Barrow v. Croft, 4 Bar. & Cres. 388; 6 D. & R. 386, S. C.; and see Mohun's case, 6 Mod. 59. (r) See Flower v. Earl Bolingbroke, 1 Stra. 639; Douglas v. Yallop, 2 Burr. 722. (s) The entry [or “further entry”] of P. A. Gent., one, &c. of the term of Vict. 1837. (Venue.) Judgment in debt on verdict between A. B., plaintiff, and C. D. ? defendant, for £, debt, and £, costs. (Venue.) Judgment in assumpsit on verdict between A. B., plaintiff, and Į C. D., defendant, for £, damages, and £, costs. (Venue.) Judgment in covenant on verdict between A. B., plaintiff, and C. D., defendant, for £, damages, and £-, costs. (Venue.) Judgment in case on verdict between A. B., plaintiff, and C. D., defendant, for £, damages, and £, costs. (Venue.) Judgment in trespass on verdict between A. B., plaintiff, and ( C. D., defendant, for £—, damages, and £————, costs. A memorial to be registered pursuant to the statute, &c. of a judgment in her Majesty's Court of Queen's Bench [or "Common Pleas" or "Exchequer of Pleas"], of term, in the year of the reign of Queen Victoria, between A. B., plaintiff, and C. D., defendant, in an action of debt for £—, and [or in assumpsit in an action on promises, damages, &c. £ -"or as the action is.."] in all £ shillings, damages, costs of increase, [Roll -.] I do hereby certify that judgment was signed in the above cause the day of [Master or Prothonotary's Name.] E. F., of, maketh oath and saith, that he was present and did see L. B., Esquire, secondary of the Court of Queen's Bench, sign the certificate of the judgment in the memorial above mentioned. Sworn, &c. To enforce satisfaction of the judgment, the law affords the plaintiff several writs of execution, viz. principally, 1st, a writ of fieri facias against the goods and chattels, including terms for years, of the defendant; 2dly, a writ of elegit against goods, and a moiety of the rents and profits of the defendant's lands; 3dly, a writ of capias ad satisfaciendum to take and keep the body of the defendant until he shall have satisfied the sum recovered. If the defendant be in possession of sufficient moveable goods and chattels, and be the entire legal owner, and not a bankrupt, then the usual and best course is to take the same under a writ of fieri facias; but if it be expected that the defendant will promptly pay the debt rather than remain in custody under a writ of capias ad satisfaciendum, then the preferable course is to take and imprison him under such writ. The following is the form of a writ of fieri facias in assumpsit on a judgment against the defendant: CHAP. VI. ON EXECU 1. The several kinds of ex ecution. Victoria, by the grace of God, of the United Kingdom of Great Britain and Form of fi. fa. Ireland Queen, defender of the Faith. To the sheriff of ——, greeting. We for plaintiff in assumpsit in command you that you cause to be made of the goods and chattels in your K. B. or C. P. bailiwick (a) of C. D. the sum of £—, which in our Court before us [or in C. P." before our justices"] at Westminster, were awarded to A. B. for his damages which he sustained, as well on occasion of not performing certain promises, [or "promise,” as in the judgment,] as for his costs and charges by him about his suit in that behalf expended; whereof the said C. D. is convicted, as appears to us of record, [or in C. P. omit " as appears to us of record,"] and have you that money before us [or in C. P. "before our justices"] at (a) Supposing the defendant reside in a district or place, parcel of one county, but wholly situate within and surrounded by another, the sheriff of the county may be commanded, " or within any district or place which is wholly situate within or surrounded by the county of - ;" or if the writ be directed to the sheriff of the CHAP. VI. Indorsement thereon. Form of Elegit in K. B. or C. P. Westminster, immediately after the execution hereof, [or " on -,"] to ren der to the said A. B. for his said damages; and have you there then [or in C. P. omit the word "then"] this writ. Witness [name of chief justice,] at Westminster, the day of, in the year of our reign. Indorse it thus: "Levy the whole [or "levy ——,”] besides sheriffs' poundage, officers' fees, and all other incidental expenses. The defendant is a [merchant,] and resides at [No. —, street.] (b) P. A. [Temple,] plaintiff's attorney, [1 Nov. 1837.] greeting. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, defender of the Faith. To the sheriff of Whereas A. B., lately in our Court before us [or in C. P. " before our justices"] at Westminster, by the judgment of the same Court recovered against C. D. £——, which in our Court were adjudged to the said A. B. for his damages, which he had sustained, as well on occasion of the not performing of certain promises then lately made by the said C. D. to the said A. B. [or if in debt," recovered against C. D. a certain debt of £——, and also £—, which in our same Court were adjudged to the said A. B. for his damages which he had sustained, as well on occasion of the detention of the said debt," or as the form of action ante, 107 to 113, see the judgment,] as for his costs and charges by him about his suit in that behalf expended: whereof the said C. D. is convicted, as appears to us of record [or in C. P. omit, as appears to us of record,"]; and afterwards the said A. B. came into our Court before us [or in C. P. "before our justices"] at Westminster, and according to the form of the statute in such case made and provided, chose to be delivered to him all the goods and chattels of him, the said C. D., except his oxen and beast of the plough, and also a moiety of all the lands and tenements of the said C. D. in your bailiwick, to hold to him the said goods and chattels as his proper goods and chattels, and to hold a moiety of the lands and tenements aforesaid to him and his assigns as his freehold, according to the form of the said statute, until the damages [or, " debt and damages"] aforesaid should be thereof fully levied: therefore we command you that without delay you cause to be delivered to the said A. B., by a reasonable price and extent, all the goods and chattels of the said C. D. in your bailiwick; except his oxen and beasts of the plough, and also a moiety of all the lands and tenements in your bailiwick, whereof the said C. D, or any person or persons in trust for him, on the day of —, in the year of our reign, [the day of signing judgment,] on which day the judgment aforesaid was given, or ever afterwards was seized: To hold the said goods and chattels to the said A. B. as his proper goods and chattels, and also to hold the said moiety of the lands and tenements aforesaid to him and his assigns, as his freehold, according to the form of the statute aforesaid, until the damages [or "debt and damages"] aforesaid shall be thereof fully levied; and in what manner you shall have executed this our writ make appear to us [or in C. P. " before our justices"] at Westminster, immediately after the execution hereof [or "on -"] under your seal and the seal of those by whose oath you shall make the said extent and appraisement, and have there then [or in C. P. omit the word " then,"] this writ. Wit (b) As to the consequences of omission, see Turber v. French, 4 Adol. & Ellis, 36.. ness [name of chief justice,] at Westminster, the day of, in the year of our reign. [Indorse it as a fi. fa. as ante, 116.] The following is the usual form of a writ of capias ad satisfaciendum : CHAP. VI. PROCEEDINGS ON EXECU TIONS, &c. Form of capias ad satisfacien dum in. K. B. or C. P. in as Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, defender of the Faith. To the sheriff of - greeting. We command you that you take C. D. if he shall be found in your bailiwick, and him safely keep so that you have his body before us [or in C. P. " before our sumpsit. justices"] at Westminster, immediately after the execution hereof, [or on --"] to satisfy A. B. for £——, which in our Court before us [or in C. P. "before our justices"] at Westminster were awarded to the said A. B. for his damages which he had sustained, as well on occasion of not performing certain promises [or "a certain promise,” as in the judgment,] made by the said C. D. to the said A. B., as for his costs and charges by him about his suit in that behalf expended: whereof the said C. D. is convicted, as appears to us of record, [or in C. P. omit, " as appears to us of record,”] and have you then [or in C. P. omit the word "then,"] there this writ. Witness justice,] at Westminster, the day of in the [name of chief year of our reign. Indorse it thus: Levy the whole, [or "levy £--"] The defendant is a Form of indorse[merchant,] and resides at No. —, street. day of —, A. D. 1837. [As to when you may indorse it to levy poundage or expenses, &c. see 1 Archbold's Pract. by Thomas Chitty, 387; and see form of indorsement, ante, 116.] ment thereon. execution, and time of issuing same. (c) At common law writs of execution must have been tested in 2. Teste and reterm time, on a day after the judgment was, or might be turn of writs of supposed to have been given. (d) But by the statute 1 W. 4, c. 7, s. 3, "every execution issued by virtue of that act shall "and may bear teste on the day of issuing thereof; and such "execution shall be as valid and effectual as if the same had "been issued according to the course of the common law." (e) And by the subsequent statute 3 & 4 W. 4, c. 67, sect. 2, all writs of execution may be tested on the day on which the same are issued, and be made returnable immediately after the execution thereof:" and which last enactment prevents all delay in perfecting an execution during the vacations. This statute applies to executions issued on judgments both before and since it passed; (f) and there is a similar clause in the late act 66 (c) As to irregularities in final process, and when to be objected to, Turber v. French, 4 Ad. & Ellis, 362, 363. (d) Shirley v. Wright, 2 Salk. 700; 2 Lord Raym. 775, S. C.; Tidd's Prac. 9th edit. 998; Tidd's New Prac. 567. (e) Tidd's New Prac. 295, 567. CHAP. VI. for improving the practice and proceedings in the Court of PROCEEDINGS TIONS, &c. Common Pleas of the county palatine of Lancaster. (e) A writ of execution, however, cannot be tested of a term previous to the judgment, although it be issued under the above statute. (ƒ) But a fieri facias on a judgment signed after the defendant's death in vacation may be tested on the last day of the preceding term. (g) And where the plaintiff having obtained a verdict at the Spring assizes, the defendant died on the 18th of April, (the fourth day of Easter term,) the costs were taxed on the 21st, final judgment signed on the 22nd, and a fieri facias issued on the same day, tested on the first day of the term, the Court refused to set aside the fieri facias for the irregularity in issuing it after the death of the defendant without a scire facias, the writ being warranted by the judgment, which the motion did not impeach. (h) In the Common Pleas at Lancaster, it is enacted by the statute 4 & 5 W. 4, c. 62, s. 33, that "all writs issued out of the said Court shall be tested in the name of the Chief Justice of that Court, or in the case of a "vacancy in such office, in the name of one of the other judges All writs of ex-"thereof; and that all writs of execution may, if the parties ecution may be made returnable suing out the same shall see fit, be made returnable immeimmediately diately after the execution thereof." In C. P. at after the execution thereof. 3. Of attach ments. 66 66 If in an action for goods sold there be a special demurrer to the Count upon an account stated, which had not been argued at the time of the trial, and the jury find for the plaintiff on the count for goods sold, the judge, if it be a proper case for speedy execution, will order it, on the plaintiff's undertaking to enter a nolle prosequi as to the count demurred to; (k) but in debt on bond, with special condition, where all the issues have been found for the plaintiff, yet as he had omitted to suggest breaches, the judge refused to certify for immediate execution. (1) The difference between an execution and an attachment is that the former is issued of right, whilst the issuing an attachment is only in the discretion of the Court. (m) |