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in and for the
This indenture made in the full county of holden at said county on the day of in the year of the reign of our sovereign lady Queen Victoria by the grace of God of the United Kingdom of Great Britain and Ireland Queen defender of the faith and so forth and in the year of our Lord 18-; Between A. B. Esq. High Sheriff of the said county of the one part and C. D. E. F. and many other persons of the county aforesaid and electors of knights to parliament for the said county of the other part: Witnesseth that proclamation being made by the said Sheriff by virtue of and according to a writ of our sovereign lady the Queen directed to the said Sheriff and hereunto annexed for the election of two knights of the most fit and discreet of the said county girt with swords to serve in a certain parliament to be holden at the city of Westminster on the day of next ensuing; the said parties to these presents together with the major part of the electors for the county aforesaid present in the full county of at aforesaid on the day of the date hereof by virtue of the said writ and according to the force and effect of divers statutes in that case made and provided herein in the said full county of by unanimous assent and consent freely and indifferently elected and chose two knights of the most fit and discreet of the said county girt with swords to wit to be knights to the said parliament so to be holden at the day and place in that behalf hereinbefore mentioned for the commonalty of the county of -; giving and granting to the aforesaid knights full and sufficient power for themselves and the commonalty of the same county to do and consent to those things which in the said parliament by the common council of the kingdom of our said lady the Queen (by the blessing of God) shall happen to be ordained upon the affairs in the said writ specified. In witness whereof the parties to these presents have interchangeably put their hands and seals the day year and place first above written.b
Return of Precept.
This indenture made in the liberty of W. in the county of M. the
in the year of the reign &c. between Sheriff of the county of M. aforesaid of the one part and J. C. Esq. Bailiff of the liberty of the in the county aforesaid of the other part; Witnesseth that by virtue of a certain precept directed from the said Sheriff to the bailiff and sewed to this indenture proclamation of the premises in the said precept first mentioned and of the day and place as in the said precept is directed first being made the citizens who were present at the said proclamation have freely and indifferently according to the form of the statute in that case made and provided and according to the tenor and effect of the aforesaid precept
Mr. Orme says that this return is "to be engrossed on the usual Stamp. stamp for deeds. Mr. Roe, on the other hand, states that it requires no stamp. The former seems to be the better opinion. There ought to be a counterpart of the Indenture; for where the original was stolen the counterpart was held sufficient. When Transmitted the Indenture is executed, it is, by the statute of 7 Hen. 4, c. 15, to the Clerk to be tacked to the writ, and both (the execution of the writ in Chancery. being indorsed) remitted to the Clerk of the Crown in Chancery; into whose department the returns are made.
of the Crown
The return to the precept (when there is one) is by Indenture between the returning officer and the Sheriff.
a If two knights or burgesses be elected at the same time, as at a general election, there is but one instrument.
b This is the return of a county mem
ber; citizen or burgess must be substi-
and of the writ in the said precept recited chosen one citizen of the most discreet or sufficient of the city and liberty aforesaid that is to say C. H. Esq. to which said C. H. so elected the aforesaid citizens have given and granted full and sufficient power from themselves and the commonalty of the city [town borough and liberty] aforesaid to do and consent to those things which at the said parliament by the common council of the said kingdom with God's assistance shall happen to be ordained upon the affairs in the said precept specified according to the form and effect of the said precept. In witness whereof as well the said Sheriff as the aforesaid bailiffs of the city [town borough and liberty] aforesaid to these indentures their seals have interchangeably put the day and year first above mentioned.a
The answer of
to this writ.
Sheriff of the county of M.
By virtue of this writ to me directed and delivered and by the precept hereunto annexed under my hand and seal of office and directed to the returning officer of the said city I commanded the said returning officer as within I am commanded which said returning officer to wit G. A. Esq. in answer to the said writ saith that the execution of the said writ appears in certain indentures hereunto annexed. By the same Sheriff.
There may be an equality of voters; if so, as the returning officer has no casting vote, he must return both.d Other cases may likewise arise where a double return is justifiable; but if any officer wilfully, falsely, and maliciously return more persons than are required to be chosen by the writ or precept, an action with double damages may be had against him; and the parties who willingly procure the same, independently of the censure and punishment that he may be subjected to at the bar of the House of Commons. The returning officer has now the power of adjournment in case of riot; yet circumstances may arise to make a special return necessary.f
No return can be impeached for want of form. But, if any return and omission or mistake be made in the return, it must be amended, amendment. before the person elected can take his seat, although duly elected;
As the precept is directed and delivered to the proper returning officer of the borough, he is the only person who can make a good return to the High Sheriff. If not made by the proper returning officer, the High Sheriff should not execute the Indenture. The return of an officer de facto is, however, sufficient, although he may not have complied with all the legal forms necessary to sustain his election to the office upon a quo warranto.b Where an Under-sheriff executed two returns, one made by a person not named in the precept, the other by the proper officer, and returned them both, he was committed to the custody of the Sergeant-at-arms.c
a In some places, as at Westminster, it
b 2 Heyw. 62; Dougl. Rep. 568.
d 1 Peckw. 16, n. (a).
e 7 & 8 Will. 3, c. 7, s. 3.
f 2 Peckw. 383; 38 Journ. 8; 2 Journ. 22; 18 Journ. 21. Orme, 103.
for a good election is only a ground to amend an undue return, but not to admit the elected without a good return. The House alone, after return once made, has the power to alter or amend it. It is done in this way: on the motion of a member, the House orders the Clerk of the Crown in Chancery to attend with the return, and he then amends it, as the House may direct.
The returning officer, whose conduct has been complained of in a petition, has often been allowed to appear in Committee, as a separate party, by counsel; but as this grew out of an objection to his competency as a witness, and that incompetency having been removed by the Law of Evidence Act (14 & 15 Vict. c. 95), it seems to follow that this would not now be allowed.a
If the High Sheriff died, between the issuing the writ and its Death of return, the House, formerly, ordered a new writ to be issued to Sheriff. the new Sheriff. But since the statute of 3 Geo. 1, c. 15, s. 8, his Under-sheriff or deputy must, in such a case, execute all writs, &c., in the name of the deceased Sheriff, until another Sheriff be appointed and sworn.c
If the High Sheriff should go out of office, the writ, if not Change of. wholly executed, is transferred to his successor; if wholly executed, it is returned by him into Chancery. There is no difference, as regards the transfer, between this writ and a common fi. fa.
SHERIFF'S COURT UNDER WRIT OF TRIAL.
BEFORE the 3 & 4 Will. 4, c. 42, s. 17, trials were only at bar, or nisi prius; but now, "in any action depending in any of the said superior Courts for any debt or demand in which the sum sought to be recovered and indorsed on the writ of summons shall not exceed 201., it shall be lawful for the Court, in which such suit shall be depending, or any judge of any of the said Courts, if such Court or judge shall be satisfied that the trial will not involve any difficult question of fact or law, and such Court or judge shall think fit so to do, to order and direct that the issue or issues joined shall be tried before the Sheriff of the county, where the action is brought, or any judge of any Court of Record for the recovery of debt in such county; and, for that purpose, a writ shall issue, directed to such Sheriff, commanding him to try such issue or issues by a jury, to be summoned by him, and to return such writ, with the finding of the jury thereon, indorsed, at a day certain in term or in vacation to be named in such writ; and, thereupon, such Sheriff or judge shall summon a jury, and shall
proceed to try such issue or issues. By the 4 & 5 Will. 4, c. 62, s. 20, the same power is given to the Court of Common Pleas of the county palatine of Lancaster; and to that of Durham by the 2 & 3 Vict. c. 11. The debt or demand, be it observed, must be liquidated-of such a nature as to be indorsable on the writ; if it does not fall within that description, neither the consent of the parties, nor any ingenious moulding of the declaration, particulars of demand, or indorsement, can give jurisdiction. In some cases, a rule seems to have been laid down, and acted upon, viz. that where a cause, not properly triable before the Sheriff, had actually been tried there, the Superior Court would not set it aside, at the instance of the party who obtained, or of the party who consented to the order; but leave him to his writ of error. This rule, however, is not universal even in the same Court. A Court or judge had, it seems, before The Common Law Procedure Act, no power to reduce the amount indorsed upon a writ of summons, so as to make the cause triable before the Sheriff. When the defendant obtains an order to try before the Sheriff, the judge has no authority to impose terms on the plaintiff, as to the time of trying, without his consent. It is sometimes made a part of the rule for a new trial, that the cause should be tried before a judge, if it appears to be a case involving difficult points of law. Issue must be joined before making the application for the writ. It When writ may be made to the Court, or to a judge at chambers.
at chambers, and order refused, the Court will not, without special facts, entertain a motion for reviewing his decision. If the plaintiff make default, so as to have justified, under the old practice, a motion for judgment as in case of a nonsuit, he now adopts this course: he gives twenty days notice to the plaintiff to bring on the issue, to be tried before the Sheriff, at the Court to be holden next after the expiration of such twenty days. If plaintiff afterwards neglect to give notice, or proceed to trial pursuant to defendant's notice, the latter enters a suggestion of the default, and signs judgment for his costs. The Court, or a judge, has power to extend the time for proceeding to trial.s The writ may be to try issues of fact, and assess damages on issues of law.h
Affidavit to obtain Writ of Trial.
Between C. D. Defendant. gentleman the plaintiff's attorney in this cause maketh oath and
a See Jacquet v. Bower, 5 M. & W. 155; Roffey v. Shoobridge, 9 Dowl. 957; Lawrence v. Wilcock, 11 Ad. & E. 941; Jones v. Thomas, 6 Jur. 462; Lismore v. Beadle, 1 Dowl. N. S. 566; Collis v. Groom, ib. 496.
b Walker v. Needham, 4 Sc. N. R 222; Lismore v. Beadle, 1 Dowl. N. S.
A. B. Plaintiff, and
566; Price v. Morgan, 2 M. & W. 53; Lawrence v. Wilcock, 11 Ad. & E. 941.
c Trotter v. Bass, 1 Bing. N. C. 516. Wright v. Skinner, 4 Dowl. 727. Muggeridge v. Drew, 9 Dowl. 1042. f Davies v. Lloyd, Dowl. 478.
Reg. Gen. Hil. T. 1853, 258. h Fryer v. Smith, 6 Sc. N. C. 658.
saith that this action is brought to recover
The notice of trial or of inquiry seems to be a ten days' notice, Notice of unless otherwise ordered by the Court or a judge; and Reg. trial, &c. Gen. Hil. T. 1853, which annul all existing written rules of practice, in any of the three Superior Courts, in regard to civil actions, in respect of which the said Courts possess a common jurisdiction, seem to apply to trials before the Sheriff. The rules are:34. "Notice of trial or inquiry, and of continuance of trial or inquiry, shall be given in town; but countermand of notice of trial or inquiry may be given in town or country, unless otherwise ordered by the Court or a judge." 35. "The expression short notice of trial, or short notice of inquiry, shall, in all cases, to be taken to mean four days." 36. "Notice of trial or inquiry may be continued to any sitting in or after term, on giving a notice of continuance four days before the time mentioned in the notice of trial or inquiry, unless short notice of trial or inquiry has been given, in which cases two days previous notice shall be sufficient, unless otherwise ordered by the Court, or a judge, or by consent." 37. "Countermand of notice of inquiry shall be given four days before the day of inquiry mentioned in the notice, unless short notice of inquiry has been given, and then two days before such day, unless otherwise ordered by the Court, or a judge, or by
The several writs of venire, distringas, and habeas corpus juratorum, as well as the entry jurata ponitur in respectu, are done away with. The Sheriff now summons the jurors.c
Notice where there are Issues in Law and Fact. In the Q. B.
Between A. B. plff. and C. D. deft. Take notice that the issue [or "issues"] in fact joined in this cause between the above parties will be tried on &c. [as above] and that the jury who try the said issue for "issues"] will at the same time assess the damages against you in this cause upon the judgment by default [or "upon the demurrer in case judgment shall thereupon be given for the plaintiff."]
Oath to Juryman.
You shall well and truly try the issues joined between the parties and a true verdict give according to the evidence. So help you God.
a Forms of issue, writ, postea, judgment, &c., are given by Reg. Gen. Hil. T. 1853, Sch.
Affirmation of Juryman.
being one of the people called Quakers do solemnly sincerely and truly
b 15 & 16 Vict. c. 73, s. 97.
c 15 & 16 Vict. c. 73, ss. 104, 105.