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not contain a clause prefixing a day to the parties, as the like writ does, when used for a removal to one of the Courts at Westminster (h). This may be an error of omission; but so long as the present form of writ is used, a Plaintiff would not, according to the rule above stated, be obliged to follow a Defendant to this Court, after a removal by Accedas ad curiam.

When the Plaintiff is bound to follow the Defendant, (except in replevin) nonpros for want of declaration may be signed, at the rule day, after the assizes, next following the time of entering the appearance, or filing bail, as in other cases (i); and the Defendant is, consequently, entitled to costs. A rule for further time to declare, may be had, of course, in all cases after removal, except Replevin, wherein, as we have seen (j), it cannot be had, without a special application to the Court, or one of the Judges thereof.

It is said that a declaration, after removal, cannot be filed before appearance, or bail (k). It is usual to state in the declaration, the removal, from the Court below, a form of which is suggested in the note(l). The time for de(h) See Fitz. N. B. 42, and Tidd's prac. forms [6th Ed.] 668. (i) See post Ch. 7, and as to nonpros in Replevin, see ante pa. 217. (j) Ante pa 217.

(k) Evans' Pr. C. P. L. 120; but it would seem that after process has issued to compel an appearance, the Plaintiff may appear for Defendant, and proceed as in other cases.

(1)

Commencement of a declaration after a removal.
In the Common Pleas at Lancaster
day of

The

in the year of our Lord

Lancashire to wit
Division. A. B. lately in the County Court of

and

day of

in the

Esquire, Sheriff of said County, holden at the Sessions Hall, in Preston, in and for the said County, on Tuesday, the year of the Reign of our Sovereign Lord William the Fourth, 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 one thousand eight hundred and thirty-six Before then Suitors of the said Court, [by virtue of a writ of Justicies, of our said Lord the King, to the said Sheriff directed,] complained against C. D., of a plea that he render to the said A. B., £. which to him he owes, and unjustly detains [or as the action may be]: which said plaint, at the petition of the said C. D., is, by his Majesty's writ of Pone loquelam returnable here, on [Wednesday] the in the year of the reign aforesaid, according to the form of the Statute in that case made and provided, had here, this day; and now, here, come as well the said A. B., (the plaintiff,) by E. F., his Attorney, as the said C. D, (the defendant), by G. H his Attorney; and the plaintiff, by his said Attorney, complains: For that whereas, &c.

day of

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claring, pleading, and joining of Issue, (except in replevin) is the same as in other cases. The pleadings commence de novo, and the parties are not obliged to declare, or plead, as in the Court below (m).

As one of the pre-requisites of a trial before the Sheriff, Trial before the under the statute 4 and 5 W. IV, c. 62, s. 20, is, that there Sheriff not allowed. must be writ of Summons, it seems, that this Court has no power, under that act, to direct a trial before the Sheriff, of a cause removed (n).

After a

The costs in the inferior Court, are costs in the cause: Costs. and, at the termination of the suit, are taxed by the officer of such Court, who grants his allocatur thereof. removal by a Defendant, though the verdict in this Court be for less than forty shillings, yet the Plaintiff is entitled to full costs, provided he would have been so entitled, in the inferior Court: because, having made his election to sue in that Court, where he would have had such costs, the Defendant cannot deprive him of such advantage, by removing the cause (o). But in a cause removed, this Court, it seems, has no power to grant the Defendant his costs, under 43, Geo. III. c. 46, s. 3, on the ground of his having been arrested, without probable cause, for more than the sum recovered (p).

It is provided by the 14th section of the statute, 4 and 5 Stat 4 & 5 W. W. IV., c. 62, that "nothing in that act contained, shall 4, c. 62, how far it extends "extend to any cause removed into this Court, by writ of to causes re"Pone loquelam, Accedas ad Curiam, Certiorari, Recordari moved. "facias loquelam, Habeas Corpus, or otherwise." This provision, taken literally, may seem to exclude the parties to a removed cause, from those advantages given in some of the subsequent sections of the statute: for example, in making writs of Inquiry returnable on any day certain-in obtaining immediate execution after Inquiry-in serving the writ of Subpoena out of the County, &c. It is con

(m) Evans' Pr. C. P. L. 120.

(n) See also the 14th sect. of the statute 4 & 5, W. 4, c. 62, supra; and see post Ch. 10.

(e) Hull. Costs 38. Archbishop of Canterbury v. Fuller 1 Ld. Ray 395. (p) Costello v. Corlett, 4 Bing. 474. Handley v. Levy, 8 B & Cr. 637. James v. Dawson, 1 Dowl. P. C. 341, Connel v. Watson, 2 Id. 139.

ceived, however, that this could not have been the intention of the makers of the act; and it is submitted that the above section being in pari materia with the 19th section of 2 W. IV., c. 39, must have a similar application to the latter, which clearly excludes removed causes from the operation of those provisions only, relating to process for the commencement of actions, and the times of declaring and pleading. It may fairly be urged, therefore, that the 14th section of the 4 and 5 W. IV., c. 62, is to be confined to the previous sections of that act: besides, if it were held to apply to the following sections, which are couched in unqualified language, the consequence would be a pro tanto repeal of them, whereas those sections "as they speak the "last intention of the makers" (q), must, according to a well recognized rule of interpretation, stand uncontrolled by the exclusive language of the 14th section (r).

(q) See Att. Gen. v. the Chelsea Water Works Company, Fitzgibbon 195. 2 Dwarris on Stat. 675.

(r) See the Judgment in Rex v. the Justices of Middlesex 2 B. & Adol. 818.

BOOK 5. CHAP. II.

OF THE REMOVAL OF CAUSES FROM THIS Court.

from this Court allowed.

Causes are removable from this Court to the King's When removal Bench, before judgment, by writ of Certiorari: though it seems to have been formerly held, that such writ did not lie to Counties Palatine, in civil cases (a). A Certiorari, however, for this purpose, can only be obtained on a special application, upon sufficient grounds; such, for example, as would entitle the party to a trial at bar. (b)

thereon.

The Certiorari (c), issues from the Court above, is di- The writ of rected to the Chancellor of the County Palatine, and Certiorari, and upon being left with the Cursitor, he makes out a man- proceedings date thereon, which is delivered to the Prothonotary, who transcribes the proceedings; for, from the County Palatine Courts, a transcript of the record is removed, and not the record itself (d). The mandate is returned by the Prothonotary, and, together with the transcript, is then delivered to the Cursitor, who, in the name of the Chancellor, makes a return to the Certiorari, and transmits the same, with the transcript, to London, to be filed in the King's Bench, in which Court, the proceedings begin de novo.

A cause may be removed from this Court, to any of the Removal for Courts of record at Westminster, for the purpose of issuing particular puran execution therefrom (e): or of charging a Defendant in

(a) See Tidd's Pr. [9th Ed.] 399.

(b) Zinck v. Langton, Doug. 721. Jones v. Davies & ors.. 1 B. & C. 143, Edwards v. Bowen & an. 5 B. & C. 206. 7 D. & R. 709, S. C. See also 10 Wentworth's, plead. 333, (note); and in what cases a trial at bar will be granted, see Tidd's Pr. (9th Ed.) 748; Arch. [by Chitty],

318.

(c) See form of this Writ, 10 Wentworth, 333. Lees' Dict. of Pr. Tit." Certiorari". Tidd's Prac. Forms, [6th Ed.] 153.

(d) See Tidd's Pr. (9th Ed.] 401.

(e) See statute 33 Geo. 3, c. 68, s. : post ch. 25.

poses.

execution, when a prisoner there (f), or of surrendering him, in discharge of his bail in this Court, when he has become such prisoner (g). In the two latter cases, the Certiorari is issued from the Court of which the Defendant is a prisoner and in all these cases, the grounds of the application for such writ, must be shewn, by affidavit.

(f) See Tidd's Pr. (9th Ed.) 400. 33 Geo. 3, c. 68, s. 1; and Jordan v. Cole, 1 H. B. 532.

(g) See post ch. 14; but see Paterson v. Reay, 2 D. & R. 177.

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