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between the teste and return in actions by original, but four days were sufficient in actions by bill. Bell v. Jackson, 4 T. R. 663.

The writ must strictly pursue the judgment or other record, on which it is founded. Mara v. Quin, 6 T. R. 1. Panton v. Hall, 2 Salk. 598. But upon a recognizance of bail, which is joint and several, it may be against both the bail, or there may be a sci. fa. against each. 2 Saund. 72 b. And it must be returnable in that court in which the record, on which it is founded, is, or is supposed to be. 2 Saund. 72 f.

By R. G. H. 2 W. 4, s. 79," a scire facias to revive a judgment more than ten years old, shall not be allowed, without a motion for that purpose in term, or a judge's order in vacation; nor if more than fifteen, without a rule to show cause." Otherwise, the court will set aside the proceedings. Lowe v. Robins, 1 Brod. & B. 381. And where it was sought to revive a judgment in ejectment which was twenty years old, and the delay in suing out execution was not accounted for, the court refused to grant a rule. Doe v. Tricknell, MS. B. 2137. The affidavit in such a case must be made either by the party himself, or by some person who was his attorney at the time of the judgment. Duke of Norfolk v. Leicester, 1 Mees. & W. 204. If it be a rule nisi, it must be served on all the defendants; Panter v. Seaman, 5 Nev. & M. 679; and they cannot object to any irregularity in the judgment in answer to it. Thomas v. Williams, 3 Dowl. 655. The motion must be founded upon an affidavit, stating that the debt or damages and costs still remain unpaid; and which affidavit must be made by some person who, from his connection with the cause, likely to know the fact. See Duke of Norfolk v. Spencer, 4 Dowl. 746. In granting the rule, the court may annex to it such terms as they think proper. See Bagnall v. Gray, 2 W. Bl. 1140.

Engross the writ on parchment; see the forms in the Appendix; and deliver it to the sheriff to be executed. If the party against whom the writ is sued out, be within the bailiwick of the sheriff to whom it is directed, he may be summoned upon it, and the sheriff may make his return accordingly; and this may be done, as formerly, even on the return day of the sci. fa. but before the rising of the court. Lewis v. Pine, 2 Dowl. 133. If, however, he reside out of the bailiwick, reasonable notice must be given to him of the proceeding, otherwise the court will not allow judgment to be signed against him for want of appearance. Wimall v. Cook, 2 Dowl. 173. Sabine v. Field, 1 Cr. & M. 466. Vide infra.

If there be any irregularity in the writ, the party suing it out may have leave to quash it; Fickman v. Robson, 1 B. & A. 486; but by R. G. H. 2 W. 4, s. 78, a plaintiff shall not be allowed a rule to quash his own writ of scire facias, after a

defendant has appeared, except on payment of costs." The rule is a rule nisi only. Ade v. Stubbs, 1 Har. & W. 520. Oliverson v. Latour, 7 Dowl. 605. In what cases the writ may be amended, see post, tit. "Amendment."

Judgment for want of appearance.] Formerly, if two writs of scire facias were sued out and returned nihil, judgment might be signed, although no attempt in fact had ever been made to summon the defendant. See 2 Saund. 72, s. But now, by R. G. H. 2 W. 4, s. 81, "no judgment shall be signed for non-appearance to a scire facias, without leave of the court or a judge, unless the defendant has been summoned; but such judgment may be signed by leave, after eight days from the return of one scire facias." This rule is not, perhaps, sufficiently explicit : the meaning of it, however, seems to be, that where the defendant has not been summoned upon the writ, you must satisfy the court of the endeavours made to apprise him of the proceedings, before they will allow you to sign judgment. Higgins v. Wilkes, 1 Dowl. 447. Newton v. Maxwell, 2 Cromp. & J. 635. Sabine v. Field, 1 Cr. & M. 466. We have seen (ante, p. 36), that if the party reside within the bailiwick, he should be summoned; if he do not reside within it, reasonable notice of the proceeding must be given to him. Saunderson v. Brown, 7 Law J., 29, qb., 7 Ad. & El. 261. What notice has been given, and how given, must appear from the affidavit upon which you move for judgment. Service on a female who described herself as the defendant's housekeeper, and who stated that the defendant was absent in order to avoid the service of process,-has been deemed good service. Dixon v. Thorold, 8 Mees. & W. 297. Where sufficient notice was given to the defendant of a scire facias to revive a judgment, the court granted leave to sign judgment, though it appeared that the defendant at the time resided in Paris. Weatherhead v. Landles, 5 Dowl. 189.

The application, however, must be made within a reasonable time after the return of the writ: where the writ was returnable in April, and the motion not made until November, Littledale, J. held it to be too late, and refused the rule. Wood v. Moseley, 1 Dowl. 513. It may be necessary to remark, that the above rule extends to all cases of scire facias. Jackson v. Elam, 1 Dowl. 515.

If however the defendant have been summoned, (and which as formerly, may still be done even on the return day of the scire facias, but before the rising of the court, Lewis v. Pine, 2 Dowl. 133,) get the writ returned, and then enter a rule to appear; and if the defendant do not appear within four clear days, (and an intervening Sunday may be reckoned as one of the four, Combe v. Cutill, 3 Bing. 162), the plaintiff may then sign judgment.

Appearance.] Formerly an appearance was entered, as in ordinary cases. But now, by R. G. H. 2 W. 4, s. 82, "a notice in writing to the plaintiff, his attorney or agent, shall be a sufficient appearance by the bail or defendant on a scire facias." The notice may be in this form: "Take notice that I appear for the defendant, upon the writ of scire facias issued in this cause;" dated, directed, and intituled in the court and cause, as a notice in ordinary cases.

Declaration, &c.] After the defendant has appeared, the plaintiff must declare; see the form of the declaration, Arch. Forms, 443, 444. Where the scire facias was against two, and the declaration against one only, it was holden irregular. Sainsbury v. Pringle, 10 B. & C. 751.

The notice and rule to plead, and demand of a plea, are the same as in ordinary cases; see as to the plea, 2 Saund. 72 t—u. Collins v. Beaumont, 10 Ad. & El. 225.

See as to the issue, Darling v. Gurney, 2 Dowl. 235.

The execution may be by fi. fa. or ca. sa. &c., as in other cases; but it must be founded on the judgment in the scire facias, although the scire facias were in fact unnecessarily sued out. Davis v. Norton, 1 Bing. 133. See the forms, Arch. Forms, 441, 442, 446, 447.

Costs.] Formerly, in most cases, there were no costs allowed in scire facias, until after plea pleaded or demurrer joined. But now, by stat. 3 & 4 W. 4, c. 42, s. 34, "in all writs of scire facias, the plaintiff, obtaining judgment on an award of execution, shall recover his costs of suit upon a judgment by default, as well as upon a judgment after plea pleaded or demurrer joined." See Brewster v. Meeks, 2 Dowl. 612.

SECTION VII.

Remittitur damna.

If the jury give greater damages than are laid in the declaration, the court will allow the plaintiff to enter a remittitur damna for the excess, even after error brought. Usher v. Dansey, 4 M. & S. 94. Pickwood v. Wright, 1 H. Bl. 642. So where the declaration consists of several counts, if the jury sever the damages, as for instance, give 50%. damages on the first count, and 1001. damages on the other counts, and one of the other counts be bad, the plaintiff may enter a remittitur as to the 100l. damages, and take his judgment for the 50%. Dadd v. Crease, 2 Cr. & M. 223, S. C. nom. Dan v. Crease, 2 Dowl. 269, and see 1 Saund. 285 n, 5, &c. Mills v. Furnell, 4 D. & R. 561. So where the jury give damages where they

ought not, as for instance in a penal action, the plaintiff may remedy the mistake by entering a remittitur damna, even after error brought. Hardy v. Cathcart, 1 Marsh. 180. See the form of the entry, Arch. Forms, 332, 354, 375.

SECTION VIII.

Costs.

1. Upon a verdict for plaintiff.

In what cases.] The plaintiff is entitled to costs, in all cases in which he recovers damages. St. Gloucester, 6 Ed. 1, c. 1, s. 2. And the statute extends, not only to cases in which damages were recoverable previously to it, Pilford's case, 10 Co. 115. Grout V. Glasier, 1 Dowl. N. C. 58, but to cases where damages have been given by a subsequent statute. Jackson v. Inh. of Colesworth, 1 T. R. 71. Creswell v. Hoghton, 6 T. R. 359. Tyte v. Glode, 7 T. R. 267. Witham v. Hill, 2 Wils. 91. Therefore in an action by a common informer for a penalty, the plaintiff is not entitled to costs, (unless given to him by statute); for he does not recover damages by his verdict. See Wilkinson v. Allot, Cowp. 366. Jeynes v. Stevenson, Bull, N. P. 194. But in an action for a penalty by a party grieved, where the penalty is vested in the party before he brings his action for it, there the plaintiff, if he recover, is entitled to costs; for by common law, in such a case, he is entitled to damages for the detention of the penalty. Ward v. Snell, 1 H. Bl. 10. This right of a plaintiff to costs, however, has since been very much restrained by statute. By 8 & 9 W. 3, c. 11, s. 3, in an action on the statute of Edw. 6, for the treble value of tithes, the plaintiff is not entitled to costs, unless the jury find the amount of the single value not to exceed twenty nobles, (6l. 13s. 4d.) See Barnard v. Moss, 1 H. Bl. 107. Bale v. Hadgetts, 1 Bing. 182. In an action on the case for slanderous words, if the plaintiff recover less than 40s. he shall have no more costs than damages, 21 J. 1, c. 16, s. 6, even although the defendant plead a justification; Halford v. Smith, 4 East, 567; which statute however extends only to cases of words actionable in themselves, or actionable only by reason of their being spoken of the plaintiff in the way of his trade or profession; Turner v. Horton, Willes, 438. Collier v. Gaillard, 2 W. Bl. 1062. Grenfell v. Pierson, 1 Dowl. 406. Goodall v. Ensell, 3 Dowl. 743, 1 Gale, 147; but if special damage be laid, and the words be such that the action could not otherwise be maintained, there the smallest damages will carry costs. Surman v. Shelleto, 3 Burr. 1688, and see Saville v. Jardine, 2 H.

Bl. 531. This statute, however, although not expressly repealed, is in a great measure superseded by stat. 3 & 4 Vict. c. 94, hereinafter mentioned. Also by stat. 43 G. 3, c. 46, s. 4, in an action on any judgment recovered in any court in England or Ireland, the plaintiff shall not recover costs, unless the court or a judge thereof shall otherwise order. The judge at nisi prius has no power to order them. Jones v. Lake, 8 Car. & P. 395. The statute, however, extends only to judgments recovered by plaintiffs, and not to judgments of nonsuit or the like. Bennett v. Neale, 14 East, 343. Upon an application for costs in this case, the court grant a rule nisi only. Fraser v. Moses, 1 Dowl. N. C. 705.

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In what not, if the judge certify.] By stat. 43 Eliz. c. 6, s. 2, if any action personal [except trespass, and trespass on the case, 3 & 4 Vict. c. 24, s. 1] in any of the courts at Westminster, I not being for any title or interest of lands, nor concerning the freehold or inheritance of any lands, nor for any battery," if the justices before whom the same shall be tried shall certify that the debt or damages do not amount to 40s. the court shall award the plaintiff no more costs than the debt or damages shall amount to, but less at their discretion. This statute extends to all personal actions, except those expressly excluded from it; therefore an action for debt or damages against an attorney is within it, although he could not be sued in a court of requests. Wright v. Nuttall, 10 B. & C. 492. And it has been holden to extend to actions on stat. 11 G. 2, c. 19, s. 19, for an irregularity in a distress, Irwin v. Reddish, 5 B. & A. 796, and on stat. 34 G. 3, c. 23, for copying a calico print, Williams v. Miller, 1 Taunt. 400, although these statutes expressly give the plaintiff full costs of suit. So a judge has power to certify, even although the defendant have pleaded two pleas embodying the same defence, contrary to one of the rules for pleading (R. G. H. 4 W. 4, s. 7), and which would otherwise entitle the plaintiff to his costs occasioned by those pleas. Simpson v. Hurdis, 2 Mees. & W. 84. In construing the statute, therefore, we have only to consider what cases are within the exceptions.

This statute, 43 El. c. 6, s. 9, as far as it respects the actions of trespass, and trespass on the case, is expressly repealed by stat. 3 & 4 Vict. c. 24, s. 1; so that a judge has no longer a power to certify under this statute of Elizabeth, in those actions; but he may in all others, unless the case come within one or other of the exceptions in the statute itself. To judge whether a case comes within either of these exceptions, it is necessary to consider, not merely the declaration, but the pleadings, and also the evidence, in order to ascertain whether in fact any title or interest in lands comes in question,whether it concern the freehold or inheritance; Smith v. Ed

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