ment. a replication to plea of set-off, and which was delivered turn book, and to defendant's attorney, who did not return same.-The plaintiff does plaintiff afterwards gave notice of trial, made up the re- not sign judgcord, and countermanded same.-The master disallowed the costs of the record and briefs, as also the notice of trial, and said, plaintiff should have signed his judgment for want of the paper book being returned.But had the plaintiff joined the issue on defendant's rejoinder, he might then have gone to trial, if he thought proper, instead of signing the judgment, and would have been allowed the costs. How to proceed to make up the Book. action be in If a special plea be left in the office, that is, such a How to make one as plaintiff can take issue on, make a copy of the up paper declaration on unstampt paper, and carry it to the clerk book, if the of the papers, Symond's Inn, who will, if the replica- case. tion be of course, draw same, and make up the paper book forthwith; and give this rule thereon, "unless the "defendant receive this paper book, and returns the "same on (naming the day) to be enrolled, let a writ "be made,” which is four days exclusive of the day you deliver it; pay him 8d. per sheet for the whole book, and 4d, per sheet for all the pleadings subsequent to the declaration, besides stamps, which book keep a copy of, and deliver to defendant's attorney; if issue be joined, the plaintiff may give notice of trial on the back of the book, when he delivers the same. In case the defen- Payment for dant's attorney does not return it in time, (no payment the book to for the pleadings is requisite,) sign judgment the same as clerk of the if no plea had been delivered, and execute an inquiry; the same notice which was given for the trial shall serve for the inquiry; but give notice that such inquiry is to be executed on such a day, at such an hour and place: as for instance," at the sheriff's office, &c." If he return the paper book, then proceed to trial as in other cases. papers. Rule, M. 36 Geo. 3. The defendant did not pay for the paper book; on a Judgment plea of non assumpsit and tender, plaintiff signed judg- cannot be ment.-Motion to set it aside. Lord Kenyon. We have signed for nonhad a conference with the judges of the C. P. and they payment for all agree with us in thinking that the rule (Hilary term, 35 Geo. 3.) established here, and which has been adopted in that court, ought to be general. Rule absolute. paper book. How to pro recovered in case, in another court. Fuller v. Osborne, 6 Term Rep. 477. Vide for rule title How to proceed on a Plea of Judgment recovered, in the If it be not an issue on which you can go to trial, viz. ceed on a plea an issue on a replication of nul tiel record, to a plea of a of a judgment judgment recovered, and the defendant returns the book without striking out any of the pleadings, get the master to give on the paper book "a rule to produce the record," which is a four day rule, enter it with the clerk of the rules, pay 3s. a copy of which is served on defendant's attorney; this done, enter all the proceedings on the roll exactly as they are in the paper book: first entering the term, then warrants of attorney for plaintiff and defendant, docket the same, carry it to the treasury chamber, and file it; on the day mentioned in the rule for defendant to produce the record, go to Westminster, bespeak the roll at the treasury to be brought into court, and give paper book to one of the criers, who will call defendant three times" to produce the record or he will be condemned." Pay in the whole 4s. 6d. The master marks on the side of the roll" the defendant hath not produced the record," which is signing the judgment, give notice of inquiry, and proceed to execution. But if it be in debt, a rule must be given for judgment, which expires in four days exclusive, sign judgment on a 10s. stamp papera, bespeak the roll of Mr. Edge, to be brought to the master's, he will tax the costs and mark them on the roll, pay 3s. 6d. If in debt. a The master will do this Westminster in term. at then sue out execution. This marking of the roll is in fact signing the judgment; but it is the practice for the clerk of the judgments to enter the judgment. Make an incipitur on a 4d. stamp paper, which take to the clerk of the judgments. If this is omitted, it is irregular, in as much as there is no judgment to warrant the further proceedings, pay 6d. for entering same. In debt, a four-day rule must be given for judgment, and afterwards judgment is signed on 10s. stamp. How to proceed on the Return of the Book, and Demurrer filed. If defendant returns the paper book, and indorses ceed if defen- thereon "that he has struck out the rejoinder," which (he How to pro may do,)" and left a demurrer in the office," take dant returns paper book to the clerk of the papers to have the de- the paper murrer and joinder added thereto, deliver the book again book, and deto the attorney (which is now called the demurrer book,) murs to the and he must return the same in " replication. twenty-four hours, "after delivery," or sign judgment, which is done as if no plea had been pleaded. But if he return the book in time, (a) (no payment is necessary,) then enter on the roll the term, warrants of attorney, and the memorandum as far as the cause of action; take it to the clerk of the judgments, he will enter it, then give a brief to counsel, with instructions to move for a consilium, (that is,) a day appointed to argue the demurrer, On setting which is signed only, pay 10s. 6d. take the roll to the cause down for argument, clerk of the papers, who will mark it " read," pay 1s. 6d. the term and and he will sign his initials on counsel's brief; go to the No. of the roll clerk of the rules, give bim the brief, and he will draw to be produced up the rule, pay him Os. 6d. then return to the clerk of to the clerk of the papers, and he will set down the cause, pay 1s. the papers, to shew you have Serve copy of rule on defendant's attorney. Then plain- made the entiff's attorney proceeds to make two copies of the de- try at the murrer book for the chief justice and senior judge, and judgment the defendant's attorney (may if he pleases, and which office. he usually does, if for argument,) makes two copies for the two other judges, (no stamps are requisite,) on brief paper. The rule of Easter term, 2 Jac. 2, is to be attended to; the exceptions which shall be insisted upon in argument, shall be marked in the margin of the books delivered; and also the rule as to the delivery to the judges of Triu. 40 Geo. 3. Those for argument on Tuesday, to be delivered on Saturday preceding.Those for Friday, to be delivered on Tuesday preceding. In case the defendant's attorney neglect to deliver his books in time, then the plaintiff's attorney may deliver them for him; pay the clerks 2s. each. If the defendant's attorney neglects to deliver his before then, the plaintiff's attorney delivers the two for him; and in this case the defendant cannot be heard. If there is an argument, a copy is to be made for counsel, fee discretionary on each side; but if no argument, then the plaintiff's attorney having delivered the four books to the judges, (a) The rule of M. 36 Geo. 3. extends to all special issues, and the paper and demurrer books made up thereon. 6 T. R. 477. And see 1 Bos. & P. 292. S. P. Draw up rule for judgment. If in debt. Where plain tiff tenders an issue on defendant's plea, and notice of trial given, if defendant de murs and judgment given, it shall serve for in⚫quiry. Notice of trial delivers a copy also to his counsel, with a fee of one guinea indorsed thereon, to move for judgment, naming the day appointed for hearing, and informing him that the defendant has delivered no books; or by putting on the brief,-No argument. On the day appointed attend the court, and pay the criers four shillings. In the even, ing go to the clerk of the rules, draw up the rule for judgment, pay 6s. 6d. and if the action be in case, then give notice of executing a writ of inquiry, and proceed therein as under title Judgment by Default. (a) If the action be in debt, then stamp the rule for judgment with a 10s. stamp, and proceed to tax the costs, first bespeak the roll from the treasury, if carried in, to be at the master's; if not, enter all the proceedings thereon yourself, and the master will mark the roll; pay 3s. 6d. then take out execution. No rule for judgment is given after argument on demurrer in debt, for the court will not suffer any one to tell them that the judgment they gave on mature deliberation is wrong. But otherwise in case of judgment by default, Str. 425. Edwards v. Blunt. Notes respecting Paper Books. Where the plaintiff, upon any pleading of the defenddant, tenders an issue, and the paper book is made up and delivered with notice of trial, and the defendant strikes out the similiter, and returns the book with a demurrer, the same notice which was given for the trial of the issue on the paper book, shall serve for executing the writ of inquiry, but then the plaintiff ought to give notice of the hour and place of executing the inquiry. N. on R. H. 8 Geo. 1. Upon the delivery of any paper book, wherein an issue given for the is joined, and notice of trial given on the back of the book, if the same be afterwards waived, and the general issue given, the notice which was given for the trial of the special issue, shall serve for notice of the general isN. on Rule, Hil. 8 Geo. 1. special issue shall (if waived) serve for notice of general issue. sue. (a) Being a judgment given by the court, the roll is supposed to be marked in court "judgment for the plaintiff by the master, therefore there is no necessity to sign an interlocutory judgment. made up and If a paper book be made up and delivered in term When to retime, or within four days exclusive after the term, with turn the paper a rule given thereon, by the said clerk of the papers, for book if it be bringing the same book to be enrolled, and defendant's delivered in attorney doth not, within four days after the delivery term, or in thereof, bring back the book, and join with the plaintiff four days after. in the special issue or demurrer made up, or waive his special plea, and give the general issue or demurrer to any special issue tendered, judgment may be signed and entered, as if no plea had been pleaded. N. on R. Trin. 1 Geo. 2. It seems by the course of the office, the paper book in In town a cause in London or Middlesex cannot be made up with causes. the usual four day rule to return it, unless the same be made up and taken from the office within four days from the end of the term. (a) But I take it, if the defendant is under terms of taking short notice of trial for the adjournment day, and he delay filing his plea, he is bound to return the book, so that the plaintiff may go to trial according to the terms of the order, although the rule be contrary, as he is bound to rejoin gratis, by the order, and he must redeliver the book in twenty-four hours, notwithstanding the rule for the plaintiff to make up his record. The course of the office respecting making up the Country paper book in country causes is, that the book may be causes. made up with the usual rule to return same at any time previous to the assizes. And if it be an issue to be tried at such assizes, the de- At the assizes. fendant's attorney shall deliver it back within four days after the delivery, and join in the special issue, or give the general issue, and take notice of trial, or else the plaintiff's attorney may sign judgment by default, as if the defendant had not pleaded. But in all cases, if the plaintiff's attorney accept the book after the limited time, he canot sign judgment. N. on R. T. 1 Geo. 2. The case of Oxley v. Bridge created much confusion On a rule to in the practice, by the court's determining, that defendant return the had until the office opened to return the book, although book, within the rule expired the preceding evening, by which the the defendant four days, if defendant got the term of the plaintiff, Dougl. 67. But delay till the morning of the fifth day, (a) It is said the clerk of the papers has no discretion the plaintiff to give a rule to return the paper book in less than four may sign days, even though the defendant be under terms of tak- judgment. ing short notice of trial. Hale v. Smallwood, E. 35 Geo. 3. Tidd, 6 Ed. 774. |