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Within what time to be executed.
Amendment of record.
declare and affirm that I will well and truly try the issue joined between the parties and a true verdict give according to the evidence.
Oath to Witness.
The evidence you shall give to the Court and jury touching the matters in question shall be the truth the whole truth and nothing but the truth. So help you God.
Affirmation of Witness.
I being one of the people called Quakers do solemnly sincerely and truly declare and affirm that the evidence which I shall give touching the matters in question shall be the truth the whole truth and nothing but the truth.
If tried before the deputy of an Under-sheriff, it is void. It ought to be fully executed before the time when the writ is made returnable, like any other writ. But where it appeared, by the Sheriff's return, that it was executed the day after the return day, the Superior Court intimated that they would amend the return if necessary. In the case referred to, however, the defendant had appeared, and by that act, perhaps, had waived the objection.b In a more recent case, Parke B. seems to have doubted this, and said, "If the trial of the cause has not commenced before the writ is returnable, the proper course seems to be to apply to a judge to have the time extended." Where the writ was returnable on July the 27th, and the trial commenced on the 27th, but the verdict was not delivered till the 28th, and an objection was then taken, on behalf of the party to whom the verdict was adverse, that the Under-sheriff had no power to receive and enter the verdict, the Court held that the objection was too late.d
With respect to amendment, The Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76, s. 222), seems not to apply to the Sheriff, in this respect. This is deeply to be regretted, for many reasons, more especially as the pleadings transmitted to him by a writ of trial are prepared according to its provisions; and yet the more extended power of amendment, which was thought a necessary element in trials before a judge of one of these Superior Courts, does not exist when the cause comes to be tried before him! There are, then, two statutes, viz. the 9 Geo. 4, c. 15, and the 3 & 4 Will. 4, c. 42: 9 Geo. 4, c. 15, applies to variances between any matter in writing or in print produced in evidence and the record; the 3 & 4 Will. 4, to variances between oral evidence and the record, in any particular, not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action or defence. The words, "merits of the case," here mean the substantial merits of the case. Under these powers (and the
a Jones v. Williams, 2 Dowl. N. C.
b Sherman v. Tinsley, 3 Hodges, 32.
d Pinkney v. Booth, 1 Dowl. N. S. 421.
e The Pacific S. N. Co. v. Lewis, 16 M. & W. 783; Harvey v. Johnstone, 6 D. & L. 120.
Sheriff had the same) the Judges of the Superior Courts amended not only when the variance was between the evidence and an allegation that need not be proved, such as the date of a bill of exchange mis-stated; but even when the variance was between the evidence (whether written or parol) and allegations, that must be proved; and that, too, on the very points in issue. The fact of amendment causing a defect which would otherwise render the pleading bad in arrest of judgment was held to be no objection to it. Omissions have also been supplied, as another count, additional cause of action, and the like (whether there was anything to amend by or not); but whether the power exists to this extent in the Sheriff, seems very questionable. The Amendment must be made during the trial, and before verdict. The Sheriff cannot When give the party power to amend on a future day. So, in order amendment to have judgment entered by the Court above "according to the made. very right and justice of the case," where the facts have been found specially, the application must be made before verdict. When leave is given to move to enter a nonsuit, the plaintiff should, if the circumstances of the case require it, ask to have reserved to the Court above the power of amending the variance.
The Superior Court will review the Sheriff's decision as to Appeal. amending the record. The Sheriff ought to be liberal in allowing amendments, especially under the 3 & 4 Will. 4, c. 42, s. 23, for that section provides a remedy, if an amendment be made which ought not, but gives no remedy, in any case in which the application to amend has been refused.f The Court has no power to amend a record, under the above statute, when the jury have been directed to find the facts specially.
The Sheriff has the power of directing a nonsuit, h plaintiff refuse his consent to a nonsuit, leave to move enter a nonsuit cannot be granted. He has power to postpone Power to the trial, should he see proper grounds for doing so, but an nonsuit, &c. adjournment, to give the plaintiff time to produce further evidence, to avoid a nonsuit, is improper, and the Court will set aside the proceedings. He has no power to certify under the 43 Eliz. c. 6, s. 2, to deprive the plaintiff of costs; m nor has the Court above any such power." Nor has he power to certify
a Gaylor v. Farrant, 4 Bing. N. C. 286; Gregory v. Duff, 13 Q. B. 610.
b Harvey v. Johnston, 6. D. & L. 120. c Ernest v. Brown, 2 M. & R. 13; Carmarthen, M. of, v. Lewis, 6 C & P. 608; John v. Currie, ib. 61; Bye v. Bower, 1 C. & M. 262.
d Brashier v. Jackson, 6 M. & W. 549; Doe d. Bennett v. Long, 9 C. & P. 773; Serjeant v. Chafey, 2 H. & W. 273. Semble, before verdict recorded. Roberts v. Snell, 1 M. & G. 577.
e 2 Har. & W. suprà.
Jenkyns v. Phillips, 9 Car. & P. 766, and see Sainsbury v. Matthews,
2 Jur. 946, Exch.
Guest v. Elwes, 2 N. & P. 230.
Fawraker v. Jackson, 2 Jur. 329,
1 Wootton v. Russell, 2 Jur. 776, B. C., sed vide Parkham v. Newman, 1 C. M. & R. 584.
m Wardroper v. Richardson, 1 Ad. & E. 75; Claridge v. Smith, 4 Dowl. 583.
Story v. Hudson, 5 Dowl. 558.
Power to refer.
Pleadings and evidence.
under the Tower Hamlets Court of Request Act, that the plaintiff had reasonable and probable cause of action to the amount of 51.a He has, however, power to certify, under the Middlesex Court of Request Act (23 Geo. 2, c. 33, s. 19) that the freehold, or an act of bankruptcy, was in question.b He has no power to refer a cause to arbitration; he is bound to try the cause, and cannot delegate his authority to another. Where a bill of exceptions was tendered, which the Under-sheriff refused to receive, the Court above would not interfere to stay judgment and execution.d He is justified in laying down a rule, that no person but a barrister or an attorney, is to appear as the advocate of a party.e
The record comes now before him framed as directed by The Common Law Procedure Act, 1852; but as the effect of that Act is, in this respect, only to do away with objections to form, the rules of evidence are not affected by it. For instance, under the pleas that he never was indebted as alleged, and that he did not promise as alleged, the same evidence, in kind and degree, is given, as before was given under the pleas of non assumpsit and nunquam indebitatus. The following matters of defence (amongst many others) are therefore receivable under the general plea. That the plaintiff is not solely entitled to the money claimed f In an action for use and occupation, the fact of the mortgagee of the premises having given the defendant notice to pay the rent to him is receivable in evidence under it, if the rent sought to be recovered accrued due after the notice; but if the rent accrued due before the notice, this defence must be specially pleaded. The defence of negligence; or that the work was done under a condition that if it did not suit or succeed, nothing should be paid for it; or that it was to be done without fee or reward;k or that there is no sufficient contract to satisfy the Statute of Frauds, are receivable under the general plea. So where the general plea is pleaded to an action for work done by plaintiff as an apothecary the plaintiff is liable to be nonsuited under the statute of 55 Geo. 3, c. 184, s. 21, if he fail to prove his certificate, or that he was in practice before the 5th day of Aug. 1815,m and that too, although the defendant has pleaded the general plea as to part, and as to the residue a tender." Credit not expired; badness of quality ;P that the article did not answer to the warranty given; that plain
a Elsley v. Kirby, 9 M. & W. 536; Capes v. Jones, 2 C. B. 914,
b Bishop v. Marsh, 6 Bing. N. C. 12;
Wilson v. Thorpe, 6 M. & W. 721;
Jones v. Nanny, 5 Dowl. 90. 1 Elliott v. Thomas, 3 M & W. 170. m Shearwood v. Hay, 5 Ad. & El. 383; Morgan v. Ruddock, 4 Dowl. 311; Wagstaffe v. Sharpe, 3 M. & W. 521.
Broomfield v. Smith, 1 M. & W. 542; Webb v. Fairmaner, 3 M. & W. 473.
P Cousins v. Paddon, 2 C. M. & R. 547.
4 Dickens v. Neale, 1 M. & W. 556.
tiff had agreed to do the work declared for, on a certain event which had occurred, for a certain sun;a are all matters receivable in evidence under the general plea when pleaded to the common indebitatus counts. In a word, any matter which tends to show that no debt payable on request in point of fact ever accrued at all is proper under the general plea. On the other hand, every fact which tends to show that the contract is void or voidable,-all matters, in confession and avoidance, must be specially pleaded; and, if not pleaded, when they ought, they cannot be received in evidence for any purpose; not even in mitigation of damages.b Therefore fraud, illegality, rescission of contract, release, payment, and the like, must be specially pleaded. There are three pleas so Plea of frequently before the Sheriff as to require more particular notice payment. than others-viz. payment, payment of money into Court, and setoff. With regard to the first of these pleas the rule of Trin. T. 1 Vict. provides that the defendant need not plead payment of any sum given credit for in the particulars of demand. Again, if payment generally be pleaded, part payment may be given in evidence under it, in mitigation of damages; but if there be no such plea, it cannot.d
As regards the payment of money into Court these questions arise what is the effect of the plea of payment of money into Court as an admission? and what is the consequence of the plaintiff's failing to establish a debt or damage exceeding the amount paid into Court? Its effect seems to be this-when pleaded to a common indebitatus count, it admits that the defendant owes the plaintiff the sum paid in, upon some contract which may be comprehended in the count. If, therefore, plaintiff says he owes him more upon any contract, such contract must be proved. When pleaded to a count on a special contract, the plea admits the contract and the breach. When pleaded to actions of tort, the effect Payment of of the plea may be subject, according to the form of the declara- money into tion, either to the rule applicable to special contracts, or to that which is applicable to indebitatus counts, that is to say, when the declaration is general and unspecific, it admits a cause of action, but not the cause of action sued for; and the plaintiff must give evidence of the cause of action sued for, before he can have larger damages than the amount paid into Court. On the other hand, if the declaration be specific, so that nothing would be due to the plaintiff from the defendant, unless the defendant admitted the particular claim made by the declaration, it admits the cause of action sued for, and so stated in the declaration. As a corollary from this, it follows, that if the plaintiff does not establish damages ultra, a nonsuit or an adverse verdict must be the consequence. It remains to be added, that when the special contract is admitted by the plea, as a bill of exchange, promissory note, or the like-the
a Jones v. Reade, 5 Ad. & E. 529. b Leicester v. Walton, 2 Camp. 251; Speck v. Phillips, 5 M. & W. 279; and see Perkins v. Vaughan, 5 Sc. N. C. 886..
c Lord v. Ferrand, 1 D. & L. 630.
writing need not be proved or even produced at the trial; and this is of some importance with a view to the stamp laws. With respect to the plea of set-off: the Sheriff must always keep in mind, that the plea is given by the 2 Geo. 2, c. 22, and is, in its nature, a cross-action, allowed to prevent circuity of action; that debts due in the same right can alone be set-off against each other; that the debt due to the defendant must be one due to him at the time of action brought and thence to the time of plea pleaded. If the plaintiff replies nunquam indebitatus and the latter prove his plea, the plaintiff cannot be allowed to show that the sum proved, or any part of it, has been paid; but under the replication of nil debet he may do so.c A plea of set-off is divisible, if, taken together with other pleas, it answers the whole demand; but a plea of set-off to the whole declaration, consisting of several counts, is not divisible; that is to say, when it stands alone, and there are no other pleas to cover the whole demand, and the jury cannot find thereon for the plaintiff on one count, and for the defendant on the other. Where a set-off is pleaded to the whole declaration, but the defendant succeeds in proving a part only, he is entitled to reduce the plaintiff's claim pro tanto.
At the return, that is, on the return day of the writ, costs may be taxed, judgment signed, and execution issued forthwith; unjudgment. less the Sheriff or his deputy, or the judge, before whom such trial
Certificate to stay
shall be had, shall certify, under his hand, upon such writ, that judgment ought not to be signed, until the defendant shall have had an opportunity to apply to the Court above, for a new inquiry, or trial; or a judge of a Superior Court shall think fit to
As to the proceedings in lieu of judgment as in case of a nonsuit, see ante, p.68. After verdict the Court will not entertain an objection which was not made at the trial, as that the jury was wrongly summoned, and was composed of persons who were not on the jury list for the county; Kington v. Groom, ii. M. & W. 826. Whether there exists under a writ of trial a right of challenge has often been doubted but never decided; Pryme v. Titchmarch, 10 ib. 605.
If the Sheriff certify or give leave for the purpose, the Court may set aside the verdict and enter a nonsuit; Ricketts v. Barman, 4 Dowl. 578; but a motion for entering a nonsuit cannot be made unless such leave has been reserved: ibid.; Beverley v. Walter, 8 Dowl. 418. The Court will not grant a new trial if the verdict be for less than 51.; Packham v. Newman, 1 C. M. & R. 585; Lyddon v. Combes, 5 Dowl. 560; Williams v. Evans, 2 M. & W. 220; Watts v. Judd, 6 Sc. N. C. 630. The Court will not hear a motion for a new trial unless the Under-sheriff's notes be produced and verified by affidavit entitled in the cause; Mansfield v. Brearey, 1 A. & E. 347; Cohen v. Williams, 8 Dowl. 419; and see Parkhurst v. Gordon, 2 C. B. 894 (n.); or their non-production accounted for by affidavit of the Under-sheriff's refusal to produce them; in the latter case the facts proved at the trial must be sworn to; Hall v. Middleton, 4 N. & M. 386; Hellings v. Stevens, 4 Tyr. 270; 2 Dowl.