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In replevin.

fendant was in a condition to sign nonpros, and the Plaintiff took out a rule to discontinue, but instead of paying the costs, served a declaration, the Court of C. P. W. held this to be a fraud on the Court, and refused to set aside the nonpros (n).

The time for signing nonpros in replevin, for want of declaration, is regulated by a rule peculiar to that species of action (o).

(n) Ariel v. Barrow, 8 Bing. 375.

(0) See ante pa. 217.

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allowed.

Wherever a Plaintiff is allowed by the practice of the In what cases Court of Common Pleas at Westminster, to discontinue his action, he may do so, in this Court.

continue.

A rule absolute to discontinue, is granted by the Protho- Rule to disnotary, of course; and if taken out before plea, it merely orders that the Plaintiff shall be at liberty to discontinue the action, on payment of costs, to be taxed: but if taken out after plea, the rule "shall contain an under"taking, on the part of the Plaintiff, to pay the costs, and a consent, that if they are not paid within four days after taxation, the Defendant shall be at liberty to sign judgment of nonpros (u).

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On discontinuing, the Plaintiff must file a declaration, if not previously done; but it is usual, in such case, to have one count only.

If the discontinuance be before appearance, the practice Before apis, to affix the rule in the Prothonotary's office; but the pearance. better way is to serve it, on the Defendant, together with an appointment to tax his costs; and this should always be done, when the Defendant has incurred any costs which would be allowed as between party and party.

Where the rule is taken out after appearance, or bail, it should be served on the Defendant's attorney, or agent, together with an appointment to tax the Defendant's

costs.

After

ance.

appear

The costs, when taxed, should be forthwith paid, other- Taxation and wise the action may be proceeded in (if before plea), as if payment of (a) Reg. Gen. [38] Mar. Ass., 2, W. 4.

costs.

no rule had been issued; for the rule being conditional only (that is, on payment of costs), is no stay of proceedings : and the taxation of costs without payment, is no discontinuance (b); nor can the Plaintiff be attached for nonpayment thereof (c): but where the discontinuance is after plea, and the costs are not paid within the time mentioned in the rule, the Defendant may sign nonpros, and issue an execution, pursuant to the undertaking contained in such rule.

When the costs are taxed and paid, and the judgment of discontinuance entered, it relates back to the day when the rule to discontinue was obtained; and the action is considered as discontinued from that time (d).

After discontinuance, the Plaintiff may bring a new action, for the same cause; but cannot arrest the Defendant a second time, without a Judge's order (e). When such order is obtained, the former affidavit of debt, remaining in this Court, may be used for the purpose of the second arrest (ƒ).

(b) Edgington v. Proudman, 1, Dowl. P. C. 152.

(c) Rese v. Fenn, 2, Id. 182.

(d) Brandt v. Peacock, 1, B. & C. 649.

(e) Reg. Gen. [5] Mar. Ass. 2, W 4. See ante pa. 65. (f) Richards, v. Stuart, 10 Bing. 322.

BOOK 5. CHAP. IX.

OF TRIAL BY PROVISO.

If the Plaintiff do not try the cause at the first assizes, At what time a defendant at which it stands for trial (a), the Defendant may, at the may try by second, or any subsequent assizes, bring it on to trial, by proviso. proviso.

It is not necessary to procure a rule for a trial by proviso; How to probut the Defendant must give notice of trial, at least eight ceed. days (exclusive) before the assizes (b): and the general rule requiring a four weeks' notice, where a term's notice is necessary in the Court of Common Pleas at Westminster (c), does not, it seems, apply to a notice of trial by proviso (d).

The Defendant must order and prepare the record, issue the jury process (e), and enter the cause, at the same time, and in the same manner, as a Plaintiff, in other cases: and if he neither proceed to trial, nor countermand, he will be liable to the Plaintiff's costs of the assizes (ƒ).

When the cause is entered by both parties, the practice The trial. is, to try it on the Plaintiff's entry (g); provided he has given due notice of trial (h): and if the Defendant enter the cause, and the issue is upon the Plaintiff, who does not appear on the trial, he must be nonsuited, for the Defendant cannot have a verdict (i).

(a) See ante pa. 132.

(b) Reg. Gen. [14] Mar. Ass., 5, W. 4. (c) See ante pa. 144.

(d) Manby v. Wortley, 2, Blac. Rep. 1223. 2, B. & Ald. 594. 1, Chitt. Rep. 317 S. C. (e) See form of Jury process, ante pa. 161. (f) See post pa. 282, & ch. 21, s. 3.

(g) Evans' Pr. C. P. L. pa. 81.

(h) Brown v. Ottley, 1, B. & Ald. 253.

Theobald v. Crickmore,

(i) Gardener v. Davis, 1 Wils. 300. 2, Saund. 336,(b)..

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Power given to this Court to direct issues to be

tried before the Sheriff, &c.

What cases are within the

act.

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OF THE TRIAL OF ISSUES BEFORE THE SHERIFF, ETC.

any

It is provided by statute 4 and 5, W. IV., c. 62, s. 20, "that in any action depending in this Court, for debt or demand, in which the sum sought to be recovered, "and indorsed on the writ of Summons, shall not exceed "twenty pounds, it shall be lawful for the said Court, or any Judge thereof, if such Court, or Judge, shall be satis“fied that the trial of the said action will not involve any "difficult question either of law or fact, 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 said County Palatine of Lancaster, 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, or Judge, 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 to be named in such "writ, and thereupon such Sheriff, or Judge, shall summon jury, and shall proceed to try such issue or issues."

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This section is confined to actions for debts and pecuniary demands, and does not extend to actions of tort (a). It was, moreover, intended to apply to plain questions only (b); and is expressly limited to actions where the claim does not exceed twenty pounds; hence, if the jury give twenty pounds for debt, and ten shillings for interest, the verdict, it seems, will be bad, as to the ten shillings (c): Where the writ of Summons is indorsed for a sum exceedig £20., the amount cannot be altered, in order to obtain

(a) Watson v. Abbott, 2 Dowl. P. C. 215. 2 Cr. & M. 150, S. C. 4 Tyr. 64, S. C.

(b) Per Parke B., in Davies v. Lloyd, 4 Dowl. P. C. 478.
(c) Burleigh v. Kingdom, 2 Id., 351.

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