entered at any time within four days after the term, but not after. N. on R. E. 5 Geo. 2. It must be four full court days, a dies non is excluded. On expiration of the rule, get the inquisition from the sheriff, carry it to the stamp office, and stamp it with a 10s. stamp, tax the costs with the master, pay 2s. 6d. and defendant may have a rule from the clerk of the rules to be present at the taxing of costs if he thinks fit; pay 6s. 6d. a copy of which is to be served on the attorney for plaintiff; after the costs are taxed the plaintiff may take out execution, if he is not served with an allowance of a writ of error.

move to set

The defendant may move to set aside the inquisition, For what defor want of due notice, objection to the jury, or mode of fendant may returning them, or that they were returned by plaintiff's aside inquisiattorney, or for excessive damages. 4 T. Rep. 473. tion. Cowp. 112. 2 Leon. 214. 3 Burr. 1846.

In like manner plaintiff may move to set it aside him- For what the self, when it is obvious damages are too small, except plaintiff. in vindictive, small, or trifling actions. Str. 425, 515, 1259, 940. 2 T. Rep. 361.

If witnesses will not voluntarily attend the execution, Witnesses. the party wanting their testimony may make out a subpoena, which is as follows.

George the third, &c. to (here insert the witnesses Subpoena on names, there may be four in each writ.) We command inquiry. you, and every of you, that setting aside all and singular businesses and excuses whatsoever, you, and every one of you, be and appear in your proper persons, before our sheriff of the county of Middlesex, on the

day of
next, at 11 of the clock in the forenoon, at
the sheriff's office, Bedford-street, Bedford-row, near
Holborn, in the county of Middlesex; (if in London,
say, before our sheriffs of our city of London, at the
secondaries office, No. 57, in Coleman street, in our city
of London. If in the country, say, before A. P. esq.
our sheriff of the county of Oxford, on, &c. at the house
of
commonly called or known by the name or
sign of the in the High-street, Oxford, in the said
county;) there to testify the truth of all and singular
those things, according to the best of your information or
knowledge, which you, or any of you know, in a cer-
tain cause now depending in our court before us, between
A. B. plaintiff, and C. D. defendant, of a plea of tres-
pass on the case (as the action is) on the part of the
plaintiff, on which our certain writ of inquiry of dama-
ges hath been sent by us, out of our said court, and di-

Præcipe.

The method of applying.

Inquiry and

notice.

rected to our said sheriff, then and there in due form of law to be executed; and this you, nor any of you, shalf in no wise omit, under the penalty of 1001. Witness Edward Lord Ellenborough, at Westminster, the day

of

in the 57th year of our reign.

Law and Markham.

To be ingrossed on a 5s. stampt piece of parchment. It must be signed by Messrs. Provost and Chambre, and sealed; pay signing 1s. 8d. seal 7d. serve witnesses with a copy, pay ls. each in town, and make a præcipe for the office, thus:

London, to wit: Subpoena to testify on inquiry between
A. B. plaintiff, and C. D. defendant, on the part of the
plaintiff.
J. K. attorney.

INQUIRY BEFore the chief justice, &c.

THERE are cases upon which a special application may be made to the court to have the writ of inquiry executed before the chief justice at the sittings, or before the justices of assize; but leave is seldom granted, unless the case is very special, as where the law is mixed with the fact, or it appears to be of too much consequence for the sheriff to undertake: in which case it is said that the judge of nisi prius is only an assistant to the sheriff, and has no judicial power; and if the parties come to an agreement at the trial, the judge is to sign it, and afterwards the court may be moved to have it made a rule of court. 12 Mod. 519, 610. 1 Str. 612. 2 Str. 852. Barn. 233.

The way to apply is, to make an affidavit, setting forth the circumstances of the parties, plaintiff and defendant, and the nature of the action, on which the court will grant a rule to shew cause, and in case of success, the rule will be that the writ of inquiry be executed before the chief justice, or judge of assize, and for the sheriff to summon a good jury. But I do not think there can be a rule for a special jury in this case granted, if contested, the act not extending to an inquiry; and at all events if there be one granted, yet defendant has no right to pay those

fees.

If the rule is made absolute, a common writ of inquiry directed to the sheriff is made out; and the notice ought to be for the sittings or assizes generally, and not for any particular day. Barnes, 135.

cause.

The writ of inquiry is sent to the sheriff, and the cause How to enter entered with the marshal the same as a record; pay the same fees: the sheriff returns the inquisition as usual, and takes his fees as usual; give a rule for judgment on the return day, and proceed as before. Salk.

399.

vacation.

By consent, in vacation, an order may be obtained May obtain from a judge to execute an inquiry before the judge consent in of assize, and he will make an order for the clerk of the rules to be at liberty to draw up a rule for that purpose, on producing counsel's hand.

Mr. Justice Buller granted an order to execute a writ of May be had in inquiry in an action of covenant without an affidavit, covenant, where some legal knowledge was necessary, and the damages went for were about 6001. Trin. Vac. 1791.

If executed before the chief justice, he may adjourn it May be adto the next sitting; but if it be on account of the ab- journed. sence of a witness, the plaintiff must pay costs. Str. 853. Coleman v. Mawbey.

In Action on Ronds, or on any penal Sum, &c.

bonds, or on

&c.

for non- On stat. of But in actions on bonds or on any penal sum, performance of covenants, &c. the stat. 8 and 9 W. 3. 8 & 9 W. S. c. 11. s. 8. directs, if judgment shall be given for plaintiff in action on on a demurrer, or by confession, or nil dicit, that the any penal sum, plaintiff may suggest on the roll as many breaches as he for non-pershall think fit, upon which shall issue a writ to the she- formance of riff of the county where venue laid, to summon a jury to covenants, appear before the justices of assize or nisi prius of that county, to inquire of the truth of those breaches, and to assess the damages, and in which writ there shall be a command to the justices of assize, to make a return thereof to the court where the writ issued. The statute is compulsory on the plaintiff, and he cannot enter up judgment for the whole penalty, as he might have done at common law. 5 Term Rep. 540. Hardy v. Bern, ib. 538.

and before

And in case the defendant after judgment entered, and If defendant before execution executed, shall pay into court to the after judguse of plaintiff, his executors, &c. such damages so to be ment entered, assessed, with costs, a stay of execution shall be entered execution, upon record; or if by reason of any execution executed, pay the dathe plaintiff or his executors, &c. shall be fully paid or mages with satisfied all such damages so to be assessed, with costs tion to be of suit, and all reasonable charges for executing, the said staid. executors, the body, lands, or goods, of defendant,

costs, execu

What bonds are within

statute.

To what the

extend.

shall be discharged from the execution to be entered on record; but to remain as a further security to answer to plaintiff and his executors, &c. such damages as may be sustained, for further breach of any covenant in same indenture, deed, or writing contained. See 5 Term Rep. 636. Hardy v. Bern.

The Cause of the Statute being made.

Where covenants and agreements are contained in a bond, they are held to be within the statute. 2 Burr. 772. 820. Dougl. 519. and is compulsory on the plaintiff to proceed in the method prescribed. A bond conditioned for the payment of an annuity, 2 Burr. 80. 5 Term Rep. 538. 636. 8 T. R. 126. or of money by instalments, 6 East, 550; or a bond conditioned to perform an award, 6 East, 613. are holden to be within the statute. And in cases where it applies, a suggestion of breaches is necessary, after a plea of non est factum. 8 T. R. 255. So after judgment or demurrer on an annuity-bond. ib. 126. which may be entered at any time before trial; but where the issue has been previously made up and delivered on such plea, it is irregular to deliver a second issue with a suggestion, without a judge's order obtained. Ibid. 255. See Tidd, 507.

This stat. does not extend to bonds conditioned for the stat. does not payment of money which are provided for by the stat. 4 Ann. c 16. nor to bail-bonds, 2 B. and P. 446. nor to bonds given to the Lord Chancellor by the petitioning creditor; nor where judgment is to the plaintiff on an issue of nul tiel record.

7 T. R. 300. 3 East, 22.

After error Leave was given to plaintiff in debt on bond condition. brought, ed to perform award after judgment, for him, upon a plea leave given to of judgment recovered, to execute a writ of inquiry upon

execute an inquiry under

the stat.

the stat. 8 & 9 W. 3. c. 11. s. 8. after a writ of error allowed, and to sign a new judgment, on paying costs, and putting defendant in statu quo. Hanbury v. Guest, 14 East,

401.

CONFESSION OF THE ACTION.

IN order to prevent expence, the defendant frequently after declaration comes to some agreement with the plaintiff to pay the debt and costs: the better to secure the plaintiff, his attorney gets the defendant to sign a cognovit,

which is called a confession of the action, or cognovit actionem.

It may be made in any stage of the cause before trial, When it may or inquiry executed, which confession is written in the be made. margin of the declaration, or it may be done on the writ of inquiry, or on paper, and if the action be in case, it may be thus: (a) I confess this action, and that the plaintiff hath sustained damages to the amount of 201. (b) besides his costs and charges, to be taxed by the master; but no judgment shall be entered up, or execution issue, until the day of next, in default of payment of the sum of 101. being the debt in this action, with the costs. And that no writ of error shall be brought, nor any bill in equity filed: and that in case the plaintiff shall enter up his judgment, he shall be at liberty to levy the said 10l. together with all costs, sheriff's poundage, and all other fees. As witness my hand, &c.

The costs are usually paid down, otherwise they must As to paymentbe added to the debt.

of costs.

If the confession be in an action of debt, then it may be, If action be "I hereby confess the debt in this cause, and that the in debt. "plaintiff hath sustained damages to the amount of 18. "besides his costs and charges, to be taxed by the mas"ter to be paid as follows," &c. as above.

If the cognovit contains an agreement to take the debt If the cogby instalments, it ought to be stamped with a 16s. stamp. novit contains But a mere cognovit, without any matter of agreement an agreement, does not require a stamp. Reardon v. Swaby, 4 East, 188. So in C. P. Ames v. Hill, 2 Bos. and Pull. 150.

&c.

In case a plea be pleaded, and the defendant would Cognovit wish to confess the action, the attorney, or his clerk, after plea. should attend the master to withdraw it. Lord Ray. 345. See title Retraxit, p. 485.

(a) Care should be taken that common bail is filed for defendant first, or that the plaintiff file it according to the statute: if the action is bailable, that bail be put in; see 7 Term Rep. 206. Davis v. Hughes; though defendant is estopped by the confession from objecting to the irregularity, if the plaintiff has filed it nunc pro tunc before the time of the objection.

(b) Take it in double the sum.