have yours ready, so that the rule may be properly filled up; and also the day and place where the jurors are to meet must be inserted. When you have drawn up the rule, serve copy on the opposite attorney, leave the original, with the names of the jurors (if special), with the sheriff, if common, he will summon bail as he thinks proper; pay him 21. 2s; his fee for attendance 11. Is. ; and no evidence is to be given on the view but the premises only as heretofore with dinners; but in the country it is, and are to be shewn. In town it is not usual to treat the jury at the expence of both parties. N. B. In vacation; by consent, you may have a judge's order for a view, upon producing counsel's hand, fee 10s. 6d. The expences are equally borne by both parties, which is particularly stated in the rule. (a) The shewers may shew marks, boundaries, &c. to enlighten the viewers, and may say to them, these are the places to which on the trial we shall adapt our evidence. See Barnes, 457. Goodtille v Clark. See my C. P. 399, 5 ed. A. B. It is ordered that a writ of distringas juratores against issue, directed to the sheriff of the county of C. D. in which shall be contained a clause commanding the said sheriff to have six or some greater number of the jurors to be impanelled and returned to try the issue between the parties, who shall be mutually consented to by the said parties or their agents, at the place in question before the time of the trial of the said issue, (to wit) upon the day of instant; and that E. F. of &c. on the part of the plaintiff, and G. H. of &c. on the part of the defendant, shall attend the same day, and shew the matters in question to the said six or some greater number of the said jurors who shall be consented to as aforesaid. And that the expence of taking the said view shall be equally borne by both parties, and no evidence shall be given on either side at the time of taking thereof; the plaintiff (or defendant) consenting that in case no view shall be had, or ifa view shall be had by any of the said jurors, whether they shall happen to be six or any (a) If the opposite attorney will not name a shewer on his part, an appointment on the rule must be given by the master for this purpose, which attend, and if no attendance, the master will name one for him. But I do not remember a refusal, for the order of the court is peremptory. particular number of the jurors who shall be so mutually consented to as aforesaid, yet the said trial shall proceed, and no objection shall be made on account thereof, or for want of a proper return to the said writ. Upon the motion of Mr. By the Court. A. B. It is ordered that a writ of distringas juratores Rule for a against issue, directed to the sheriff of the county of view by a C. D. in which shall be contained a clause comspecial jury. manding the said sheriff to have six or more of the first twelve of the jurors to be impanelled and returned to try the issue between the parties at the place in question, before the time of the trial of the said issue, to wit, upon the day of instant, and that E. F. of &c. on the part of the plaintiff, and G. H. of &c. on the part of the defendant, shall attend the same day and shew the matters in question to the said six or more of the first twelve of the said jurors: and that the expence of taking the said view shall be equally borne by both parties, and no evidence shall be given on either side at the time of taking thereof; the plaintiff (or defendant) consenting that in case no view shall be had, or if a view shall be had by any of the said jurors, whether they shall happen to be any of the twelve jurors who shall be first named in the said writ or not, yet the said trial shall proceed, and no objection shall be made on account thereof, or for want of a proper return to the said writ.-Upon the motion of Mr. By the Court. RECORD OF NISI PRIUS BY BILL. THE record of nisi prius is supposed to be transcribed from the issue roll, and contains an entry of the declaration and pleadings delivered with the award of the venire facias of the issue, as in the issues or paper book, and is in the nature of a commission to the judges at nisi prius, for the trial of the cause, and is to be ingrossed on a ten shilling stamp parchment, and made up by the attornies themselves. In every record to be made up, there must be two placitas, the one preceding the issue, which is to be of that term in which the issue is joined, the other after the end of the award of the venire facias (or the end of the issue as delivered,) the term the cause is to be tried. But Dd So if there is a demurrer. But if respondeas ouster be if the cause is to be tried the same term the issue is joined, then both placitas are to be of that term. (a) If there be a demurrer to any of the pleadings, and the cause is to be tried before or after that be disposed of, all the proceedings must be entered on the nisi prius record, the same as made up in the paper book. But where there has been a plea in abatement, and a awarded on a judgment of respondeas ouster awarded, and the defenplea in abate- dant pleads in chief afterwards, the issue is made up without taking notice of any of the pleadings in abatement. 7 Mod. 51. ment. Where two partners sever Assumpsit against two, they sever in pleading One in pleading. pleading bankruptcy, on which issue was joined; the other pleaded a judgment recovered against him and the other defendant. There was a nolle prosequi entered, not to proceed further against the bankrupt, and plaintiff proceeded to final judgment against the other. On error being brought, the judgment was affirmed. Noke & Chiswell v. Ingham, 1 Wils. 89. As to amend The nisi prius record may be amended in court, ing the record. after the cause is called on, by a rule made instanter on the consent of both parties. Murphy v. Marlow and another, 1 Campb. 57. When a nolle prosequi may be entered against one. No rule for costs. Two defendants pleading different pleas, nolle prosequi as to one of them, does not dis-, charge the other. Where there are several defendants, and they sever in plea, whereupon issue is joined, the plaintiff may enter a nolle prosequi as to one defendant at any time before the record is sent down to be tried at nisi prius. 2 Roll. Abr. 100. Salk. 457. Greeves v. Rolls. Where there is a nolli prosequi entered on any of the counts, there is no rule for allowing costs for such counts. Hubbard v. Biggs, 16 East, 129. In assumpsit against two, where one pleads non assumpsit, on a plea of bankruptcy, and the plaintiff enters a nolle prosequi as to him, as to the several matters pleaded by him, and the other defendant pleads FOR assumpsit, the latter is not discharged by the nolle prosequi. Moravia and another v. D. Hunter and another, 2 Maule and Selw. 444. (a) And the record then concludes, with an entry called the jurata. The Record. Pleas before our lord the king at Westminster, of the Record where term of the holy Trinity, in the 57th year of the reign the issue and of our sovereign lord George the third, by the grace of trial are of God of the united kingdom of Great Britain and Ireland, terms. king, defender of the faith, and in the year of our Lord 1817. Roll 520. Law and Markham. Be it remembered,(to end of the issue London, verbatim); then enter a second placita as to wit. follows: different Pleas before our lord the king at Westminster, of the Second pla term of St. Michael in the 57th year of the reign of our cita. sovereign lord George the third, by the grace of God of the united kingdom of Great Britain and Ireland, king, defender of the faith, and in the year of our Lord 1817. next after Or debt, as the action is. C The return of the distrin gas. The day of London, The jury between A. B. by his attor- Jurata for to wit. ney, plaintiff, and C. D. defendant, of a London. plea of trespass on the casea, is respited before our lord the king at Westminster, until b, unless the right honourable Edward lord Ellenborough, his majesty's chief justice assigned to hold pleas before the king himself, shall first come, one the day at the Guildhall of the said city, according to the form of the statute in such case made and provided, for default of the jurors, because none of them did appear; therefore let the sheriff's have the bodies of the said jurors, make the said jury between the parties aforesaid, of the plea aforesaid; accordingly, the same day is given to the parties aforesaid, at the same place. trial. If the cause is to be tried in Middlesex, say, " unless, If in Middle"&c. shall first come on the day sex. "at Westminster hall, in the county of Middlesex,' and say sheriff. If at the assizes, "unless his majesty's justices as- If at assizes: "signed to take the assizes in and for the county of "Oxford, shall first come on the "day of July at Oxford, in the said county, accord d The last day of term your last placita is of. To be entered in town two days before sittings. Time for en tering causes for London and Middle sex after term. causes where "ing, &c." and at the" (a) end of the jurata add, day of "It is ordered, that unless the causes to be tried at "London and Middlesex be entered with the chief "justice of this court by the space of two days before "the sittings upon which such causes are to be tried, "the marshal may enter a ne recipiatur, at the request "of the defendant or his attorney." R. H. 15 & 16 Car. 2. Time for Eniry of Cause. Ordered, that in future, all causes to be tried at the sittings after term, shall be entered, and the records delivered to the marshal, at the times following: The causes in Middlesex, the first day of the sitting after term in Middlesex; and the causes for London, two days before the adjournment day, in London. R. Hil. 34 Geo. 3. The rule M. 17 Geo. 2. is at an end so far as relates to the entry. (b) They are to be entered by nine in the evening. Rule as to It is ordered, that no cause for the future be tried by a setting down special jury, unless the rule for such special jury be drawn and the cause marked as a special jury in the marshal's book of causes, before the adjournment day after each term. By the court. R. Trinity term, 30 Geo. 3. 1790. there is a special jury. Every cause to be tried in the order they stand, unless, &c. up, Ordered, that every cause to be tried at nisi prius, in London and Middlesex, shall be tried in the order in which it is entered (beginning with remanets,) unless it shall be made out to the satisfaction of the judge of nisi prius in open court, that there is a reasonable cause to the contrary, who thereupon will make such order for the trial of the cause so to be put off, as to him shall seem just. R. Mich. 17 Geo. 2. (a) This is only added when the cause is to be tried at the assizes. (b) The record may be amended by a judge's order, though in the hands of the marshal. |