NIZANCES ON RECOG- lawful English money, to be paid to the said plaintiff, his executors or assigns, OF BAIL. and that, unless he should do it, the said defendant granted that the said £[ *479] should be made of his lands and chattels, and to the use of the said *plaintiff levied, as by the record of the said recognizance remaining in the said court of our said lord the king, before his justices at Lancaster aforesaid, and which is still in full force, more fully appears; yet the said defendant, (although often requested so to do) hath not as yet paid the said sum of £- above demanded, or any part thereof, to the said plaintiff, but he to do this hath hitherto wholly refused, and still doth refuse, to the damage of the said plaintiff, of £— and therefore he prays relief, &c. Debt on recognizance of bail in er ror in C. P. taken before a judge(c). On a recognizance of bail in error Pledges, &c. For that whereas the said defendant heretofore, to wit, on, &c. came before the Honorable Sir knight, one of the justices of the court of our lord the now king, of the bench at Westminster, in the county of Middlesex, at his chambers in and acknowledged himself to owe to the said plaintiff the said sum of £- to be levied of his lands and chattels, which said recognizance the said justice afterwards, to wit, on, &c. delivered with his own proper hands, in the said court of the bench at Westminster, in the county of Middlesex to be enrolled, and the same was then and there, before the Right Honorable Sir -, knight, and his brethren, then his said majesty's justices of the bench, enrolled of record in the same court, as by the record thereof remaining in the same court manifestly appears; yet the said defendant (although often requested so to do) hath not as yet paid the said sum of £- or any part thereof, to the said plaintiff; but the said defendant to pay the same, or any part thereof, hath hitherto wholly refused, and still doth refuse. To the damage, &c. For that whereas defendant heretofore (d), to wit, on, &c. in [Michaelmas] Term, in the [first] year of the reign of our lord the king, before the king himfrom K. B. self, at Westminster, in his proper person, and according to the form of the to Exche quer. Statute in such case made and provided, acknowledged himself to owe to the said plaintiff the said sum of [£200] above demanded, to be paid to the said plaintiff, his executors or assigns; and unless he should do so, the said defendant granted and agreed that the said sum of [£200] should be made of his lands and chattels, and levied to the use of the said plaintiff, upon condition, nevertheless, reciting that the said plaintiff then lately in the court of our said lord the king, before the king himself, the said court then and still being at Westminster, in the county of Middlesex, by bill, without the writ of our said lord the king, and by the judgment of the same court, recovered against one J. M. [100] for his damages which he had sustained, as well on occasion of the not performing of certain promises and undertakings [or, if in debt, alter the form accordingly, see forms in debt, post, 484,] before then made by the said J. M. (c) Willes, 18. See sci. fa. Tidd's Forms, 499, 6th edit. (d) If the recognizance be taken before a Judge at chambers, and it appears so on the entry of recognizances, here insert "to wit, on, &c. A. D. came before Sir J. L. knight, then and still being one of the justices of our said lord the king, before the king himself, at his chambers, situate and being in Serjeants' Inn, Chancery-lane, in the city of London, in his proper person, &c." NIZANCES OF BAIL. to the said plaintiff, as for his costs and charges by the said plaintiff in that ON RECOG suit in that behalf expended, whereof the said J. M. had been convicted, as appeared of record in the said court of our said lord the king, before the king himself, at Westminster, and also reciting that the said J. M. had brought a writ of error upon the judgment aforesaid, returnable before the justices of our lord the king of Common Bench, and barons of our said lord the king's Exchequer, of the decree of the court in our said lord the king's Exchequer Chamber, at Westminster, on, &c. And if therefore the said J. M. should prosecute the said writ of error with effect, and should pay and satisfy the said plaintiff if the said judgment should be affirmed, or the said writ of error be discontinued on his default, or he should be nonsuited therein, as well the damages, costs, and charges aforesaid adjudged upon the said judgment, as well as such costs and charges, and damages, as should be awarded to the said plaintiff for the delay of execution of the judgment aforesaid, by pretext of presenting the said writ of error, then that recognizance was to be void, or else to be and remain in full force and virtue(e) as by the record of the said recognizance now remaining in the said court of our said lord the king, before the king himself, more fully appears, and such proceedings were thereupon had upon the said writ of error in the said court of Exchequer Chamber, before the justices of the Common Bench, and barons of the exchequer aforesaid, that afterwards, &c. on, &c. in Term, in the year of the reign aforesaid, the said judgment was in all things affirmed, and £17. 10s. were then and there, in and by the said court of Exchequer Chamber, adjudged to the said plaintiff, according to the form of the Statute in such case made and provided, for his damages, costs, and charges, which he had sustained and expended by reason of the delay of the execution of the judgment aforesaid, in pretence of prosecuting the said writ of error, as by the record and proceedings thereof, remitted by the said justices and barons, from the said court of Exchequer Chamber into the said court of our said lord the king, before the king himself, at Westminster aforesaid, according to the form of the Statute in such case made and provided, and now remaining in the said court of our said lord the king, before the king himself, at Westminster aforesaid, more fully appears; nevertheless the said J. M. hath not as yet paid to the said plaintiff the damages, costs and charges, so as aforesaid adjudged upon the said first mentioned judgment, or the damages, costs, and charges aforesaid, so awarded as aforesaid, or any part thereof, and as well the said recognizance as the said several judgments, still are and remain in full force, vigor and effect, and not in any respect annulled, discharged, paid off, satisfied, or made void; and the said plaintiff hath not as yet obtained any satisfaction of or upon the said judgments, or either of them, whereby, and according to the force, form, and effect of the said recognizance, an action hath accrued to the said plaintiffs to demand, &c.-[Conclude as usual, adding the usual breach, as ante.] (e) If before a Judge at chambers, here insert, which said recognizance the said Sir K., knight, so being such justice as aforesaid, afterwards, &c. on, &c. next, after three weeks, &c. delivered with his own proper hands in the said court of our lord the king himself, at Westminster, &c. to be enrolled, and the same ON RECOG- nizance ta ken before a commissioner in the country, where the ment in as sumpsit by original (ƒ). For that the said defendant heretofore, to wit, on, &c. at, &c. (venue) came OF BAIL. in his proper person before one E. F. then and there being a commissioner, duOn a recog- ly appointed and empowered (g) by the justices of our lord the king, of the bench at Westminster, in the county of Middlesex, to take and receive all and every such recognizance or recognizances, of bail or bails, in and for the said county of — as any person or persons should be willing to acknowledge or plaintiff ob- make before him, in any action or suit depending in the said court of our said tained judg- lord the king, of the bench at Westminster, according to the form of the Statute (h) in such case made and provided, and then and there, to wit, on, &c. aforesaid, at, &c. (venue) aforesaid, before the said E. F. so being such commissioner as aforesaid, became pledge and bail for one G. H. and then and there acknowledged himself to owe to the said plaintiff the sum of £— which said sum of £— the said defendant, for himself and his heirs, did grant should be made of his lands and chattels, and levied to the use of the said plaintiff, upon condition that, if judgment should happen to be given for the said plaintiff against the said G. H. in the said court of our lord the king, of the bench at [ *480 ] Westminster aforesaid, in a certain plea of trespass on the case *upon promises, to the damage of the said plaintiff of £— then the said G. H. should satisfy all such damages as should be adjudged to the said plaintiff against the said G. H. in the said court, or should render his body on that occasion to his majesty's prison of the Fleet, which said recognizance, afterwards, to wit, on, &c. to wit, at, &c. (venue) aforesaid, in, &c. aforesaid, was duly transmitted by the said E. F. so being such commissioner as aforesaid, to and filed with the honorable then and still being one of the justices of the court of our said lord the king, of the bench, to wit, at his chambers in Serjeants' Inn, Chancerylane, London, and was, by him the said justice, afterwards, to wit, on, &c. aforesaid, in Term, in the — year of the reign, &c. brought into the said court of our said lord the king, of the bench at Westminster aforesaid, to be enrolled and recorded, and thereupon the said recognizance, at the request of the said plaintiff was then and there duly enrolled and recorded in the said court, as by the record thereof, still remaining in the said court of the bench at Westminster aforesaid, more fully appears. And although the said plaintiff afterwards, to wit, in the Term of - in the year of the reign, &c. in the said court of our said lord the king, of the bench at Westminster aforesaid, in the county of M. by the consideration of the same court recovered against the said G. H. in the said plea £- which, in and by the said court, was adjudged to the said plaintiff for his damages which he had sustained, as well by reason of the not performing certain promises and undertakings made by the said G. H. and not performed, as for his costs and charges by him about his suit in that behalf expended, whereof the said G. H. was convicted, as by the record and proceedings thereof remaining in the said court of our said lord the king, of the bench at Westminster more fully appears; yet the said G. H. (although often requested so to do) hath not as yet paid or satisfied the damages aforesaid, (f) See 1 Wentw. 58. As to venue, see 2 J. B. Moore, 66.-8 Taunt. 171, S. C. (g) In an action on a recognizance of bail taken before a commissioner at Durham, an averment that it was taken "before G. H. then and there being a commissioner duly appointed to take re- NIZANCES so as aforesaid recovered, or any part thereof, to the said plaintiff nor rendered ON RECOGhimself on that occasion to his majesty's said prison of the Fleet, according to OF BAIL. the form and effect of the said recognizance, nor has he made any satisfaction of the said judgment; and, as well the said recognizance as the said judgment, still remain in full force and effect, in no wise reversed, set aside, or otherwise satisfied or vacated; of all which said premises the said defendant afterwards, to wit, on, &c. at, &c. (venue) had notice, whereby, &c.-[Actio accrevit, &c. as usual.] *II. ON JUDGMENTS. [ *482 ] ON JUDG MENTS. on a final in K. B. or C. P. or Middlesex, (to wit.)(k) A. B. complains of C. D. &c.-[Commencement in Declaration debt, ante, 384, n. and proceed as follows:] For that whereas the said plaintiff judgment, heretofore, to wit, in Term(), in the year of the reign of our lord the now king, in the court of our said lord the king, before the king himself, at Westmin- Exchequer, ster, in the county of Middlesex, [or, if in C. P. say " before the Right Hon. Sir sit(1). in assump -, Knt. and his companions, then and still being his Majesty's Justices of the Bench here, to wit, at Westminster, in the county of Middlesex,”] [or, if in the Exchequer, say "in the court of our said lord the king, before the Barons of his Exchequer, *at Westminster, in the county of Middlesex," (m) [ *483 ] by the consideration and judgment of the said court, recovered against the said defendant* the said sum of £-(n) above demanded, which in and by the said court were then and there adjudged to the said plaintiff (o) for his damages, which he had sustained as well by reason of the non-performance by the said defendant of certain promises and undertakings(p), then lately made by the said defendant to the said plaintiff, as for his costs and charges, by him about his suit in that behalf expended, whereof the said defendant was convicted, as (m) What a variance in this, see ante, 417, notes (i)(k). (n) A variance in the sum would be fatal. Where there was a judgment for 3881. Os. 1d. and debt was brought on it, stating the judgment was for 3881. omitting the penny, it was held a variance, and that it could not be cured by a remittitur of the penny. 2 Stra. 1171. (i) Debt lies in the superior courts on a judg- 12. As to pleading a judgment in an inferior ment obtained in the inferior courts, and vice ver- court, Id. ibid. 1 Saund. 22, n. 2.—Ante, vol. i. sa, Gilb. Debt, 392, 3. The courts, however, dis- Index, tit. Declaration. courage actions of debt on judgment, id. ibid. and by 43 Geo. 3. c. 46, s. 4, the plaintiff in such action is not entitled to costs, unless the court will make an order for that purpose. If defendant, however, instead of applying to the court to stay the proceedings, plead nul tiel record, or the like, for delay, the plaintiff ought to have his costs, 5 Taunt. 264.-The act also does not extend to actions on judgments of nonsuit or non pros. 14 East, 343. No action lies on 'the judgment if defendant has been once taken or charged in execution on it, and this although discharged with plaintiff's concurrence, 7 T. R. 420.-5 M. & S. 103.-2 East, 243. Error in the judgment is no ground of objection to an action upon it, 2 Lev. 161. As to the declaration in general, Gilb. Debt, 412, &c. Com. Dig. Plead. 2 W. 12.-1 Saun. 92, n. 2, 329, n. 1, 2, 3.-Ante, vol. i. Index, tit. Debt.-Selwin, N. P. tit. Debt. See Forms, Morg. 541, 558.1 Rich. C. P. 203, 440, post. (k) The venue is local, and must be where the record is, which is now always in Middlesex, Gilb. Debt, 413.-Ante, vol. i. Index, tit. Venue. (1) The Term and parties, and the sum recov ered, must be shown. Com. Dig. Pleader, 2 W. (0) The judgment must be set forth accurately, and a variance would be fatal. If the parties' names be misplaced, &c. it would be bad, 7 Taunt. 271. Sed quære, that was a decision in a sham plea, and see as to misnomer of parties, 1 Roll. 754, 1. 40.-7 T. R. 447.-See form, post, 484, where a defendant was sued in the first action by a wrong name. (p) If the judgment was on one count only (as is usual where the action is on a bill of exchange or promissory note, and there is a reference to the Master or Prothonotary on a judgment by default,) instead of the words " promises and undertakings," say "promise and undertaking," otherwise there would be a variance, see 5 B. & Cres. 339.-Stra. 892. 2 Stark. 7. MENTS. ON JUDG by the record and proceedings thereof, remaining in the said court of our said lord the king, before the king himself, [or, if in C. P. say "of the Bench aforesaid, at Westminster aforesaid,"] [or, if in the Exchequer, say "of our said lord the king, before the Barons of his Exchequer, at Westminster aforesaid,"] more fully appears(q); which said judgment still remains in full force and effect(), not reversed, satisfied, or otherwise vacated; and the said plaintiff hath not obtained any execution or satisfaction of or upon the said judgment so recovered as aforesaid; whereby an action hath accrued to the said plaintiff to demand and have, of and from the said defendant the said sum of £ above demanded; yet, &c.—[Conclusion as ante, 387, and insert damages sufficient to cover interest, &c.] *484 ] The like on a judgment *[As in the last form, as far as the*, and then proceed as follows :]-As well a certain debt of £— as also £— which in and by the said court of our said in debt(s). lord the king, before the king himself, [or, if in C. P. " which in and by the said court of our said lord the king of the bench,"] were then and there adjudged to the said plaintiff for his damages which he had sustained, as well by reason of the detention of the said debt, as for his costs and charges by him about his suit in that behalf expended, whereof the said defendant was convicted, as by the record, &c.—[As in the last precedent to the end.] On judg ment for the defendant on verdict. The like on other judg ments. On a judg ment reco in K. B. when de sued by a [Same as the form, ante, 483, to the *, and then proceed as follows:]-The sum of above demanded, which in and by the said court of our said lord the king, before the king himself, were adjudged to the said plaintiff, and with his assent for his costs and charges by him laid out and expended in and about his defence of a certain action of trespass on the case on promises [or, as the action is] then lately prosecuted in the said court by the said defendant against the said plaintiff, whereof the said defendant was convicted, as by the record &c.-[Same as the precedent, ante, 483, to the end.] [For the description of a judgment of non pros-for not entering the issueor as in case of a nousuit—or on a nonsuit, see Tidd's Forms, 6th edit. 169, 291, 314, 309.-7 Wentw. 120.] tofore, to wit, in Term, in the Middlesex (to wit.) John Drake was summoned to answer J. W. of a plea vered by bill that he render, &c. (as usual in debt). For that whereas the said plaintiff, hereyear of the reign of our lord the now fendant was king, in the court of our said lord the king, before the king himself, at Westminster, in the county of Middlesex, by the said consideration and judgment of the said court recovered against the said defendant (by the name of Charles Drach) the sum of £- for his damage which he had sustained as well by reason of his not performing certain promises and undertakings [or, if in debt, see the form, supra] then lately made to the said plaintiff as for his costs and wrong name. (4) This is necessary, see ante, 476, n. (t).Co. Lit. 303 a.-1 Lord Raym. 35.-3 Salk. 565. However the omission is only cause for special demurrer, 11 East, 565. (r) As to this allegation, see Com. Dig. Plead er, 2 W. 12. It is not necessary, 1 Saund. 330, n. 4. (8) See 2 Mall. 186. |