CH. IV.] Appendix of Forms. 381 the damages aforesaid, together with interest as aforesaid, should be levied ; and that in what manner he should have executed this our writ he should make appear to us at Westminster [in Exchequer, "should make appear to the Barons of our said Exchequer at Westminster;" or, in Common Pleas, “should make appear to our justices at Westminster"] immediately after the execution thereof, under his seal and the seals of those by whose oath he should make the said extent and appraisement, and that he should then have there the said writ. And our said sheriff of thereupon returned to us that by virtue of the said writ to him directed, he had caused to be made by a reasonable price and extent of the goods and chattels of the said A. B., excepting his oxen and beasts of the plough, the sum of £ parcel of the damages [or, "debt and damages"] and interest aforesaid; and that he had caused to be delivered to the said A. B. all the lands and tenements, to wit [describe them, or the nature of the property, as the case may be] of the said C. D. in his bailiwick, to hold the said lands and tenements, according to the nature and tenure thereof, to him and to his assigns, until the damages [or, "debt and damages"] aforesaid, together with interest as aforesaid, should be levied. And although possession of the said lands and tenements hath been by reasonable extent to the said A. B. delivered in execution for the satisfaction of the residue of his said damages [or, " debt and damages"] according to the laws of the realm, nevertheless the said A. B. hath been lawfully evicted from the possession of the said lands and tenements [state the nature of the eviction according to the facts] before he hath been fully satisfied and paid off the residue of his said damages [or" debt and damages"] without any manner of fraud, deceit, covin, collusion, or other default in the said A. B., as by the information of the said A. B. we are given to understand. And execution on the said judgment, obtained by the said A. B., for £ being the residue of the damages [or, "debt and damages"], and interest aforesaid still remains to be made; wherefore the said A. B. hath humbly besought us to provide him a proper remedy in this behalf. And we, being willing that what is just in this behalf should be done, command you that by honest and lawful men of your bailiwick you make known to the said C. D. that he be before us at Westminster [in Exchequer, "that he be before the Barons of our said Exchequer at Westminster;" in Common Pleas, "that he be before our justices at Westminster"] on the ensuing, to show if he has or knows of anything to say for himself why a new writ or writs on the said record of judgment, of the like nature and effect as the said former writ of execution was, should not be made for the levying of the residue of all such damages [or, "debt and damages,"] aforesaid, together with interest thereon, at the rate of four pounds per centum per annum, from the day of in the year of our Lord on which day the judgment aforesaid was entered up, according to the force, form, and effect of the said recovery, if it shall seem expedient for him; and further to do and receive what our said Court before us [in Exchequer, "before our said barons," in Common Pleas, "before our said justices"] shall then and there consider of the said C. D. in this behalf; and have there then the names of those by whom you shall so make known to him, and this writ. Witness, John Lord Campbell, at Westminster, the day of day of , in the now next year [BK. II. of our reign. [In Common Pleas, Witness, Sir John Jervis, Knight, at Westminster," &c.; the same in the Exchequer, inserting the name of the Chief Baron] (b). BOOK I. CHAPTER V. FOR FORMS OF SCIRE FACIAS AD REHABENDAM TERRAM, See precedent to have delivery of lands extended by elegit in debt; Rastell's Entries, 164 b. Where plaintiff has levied part of the money, and defendant is prepared to pay part of the residue, and bring the money into Court which the plaintiff received; Veteres Intrationes, 138; Moile's Entries, 101. Against tenant by elegit to account; Brown's Methodus Novissima, 371. See form in Underhill v. Devereux, 2 V. Wms. Saund. 68. And form of elegit, 4 M. & W. 546. (Ante, p. 58.) BOOK I. CHAPTER VI. FOR FORMS OF SCIRE FACIAS QUARE RESTITUTIONEM NON ON A JUDGMENT REVERSED, See precedent, 2 Lilly's Mod. Entries, 641; Ibid. 650. And see precedents in Tidd's Forms, 6th ed. 638 and 639. (Ante, p. 64.) BOOK II. CHAPTER II. FORMS AND REFERENCES TO FORMS AGAINST MEMBERS OF JOINT-STOCK BANKING COMPANIES. (See ante, p. 106.) Declaration in Scire Facias, in Common Pleas, against Members of a Jointstock Banking Company, for "the time being" in C. P. (c). In the The day of A. D. to wit. The sheriffs of London were commanded, whereas S. F., J.G., and M. G., lately in the court of our lady the Queen Victoria, of the bench (b) The writ is returnable in 40 days. See the Stat. 32 Hen. VIII. c. 5, ante, ch. iv. p. 53. (c) 3 Chitty's Plead. 7th ed. p. 563; and see form, Fowler and others v. Rickerby, 9 Dowl. 682. The declaration should be entitled of a day certain; Collins v. Beaumont, 5 Dowl. 700; and see Bradley v. Eyre, 11 M. & W. 432; and Bradley v. Urquhart, ib. 456, as to the pleadings. The form in Chitty's Arch. Prac., Forms, p. 483, has been held bad, and the Court will quash such a writ on motion, where it describes the defendant as "a member for the time being," and also at the time of the judgment recovered," because in the former case the plaintiff without leave of the Court may issue his scire facias against a member, whilst in the latter the leave of the Court is necessary before issuing the writ. See The Governor and Company of the Bank of Scotland v. Fenwick, 1 Exch. 792; 5 Dowl. & L. 377, S. C. And a declaration, which stated that "the defendant at the time of the judgment recovered was, and from thence hitherto has been, and still is, a member of the copartnership," was held bad, on special demurrer, in Esdaile, Public Officer, v. Trust well, 1 Exch. 371. And see the form in Nunn v. Claxton, 3 Exch. 712, in which the averment, respecting the defendant proceeded against, was "that T. C. now is a member of the said copartnership," was specially demurred to and held good. 383 at Westminster, before Sir John Jervis, knight, chief justice, and his companions the justices of our said lady the Queen of the bench, under and by virtue of the statute in such case made and provided by the judgment of the same Court, recovered against W. M., (one of the public registered officers for the time being, of certain persons united in co-partnership for the purpose of carrying on, and carrying on the trade and business of bankers in England, under the name of the under and by virtue, and according to the form and effect, of an Act of Parliament made and passed in the seventh year of the reign of his late Majesty King George the Fourth, for, amongst other things, the better regulating co-partnerships of certain bankers in England, and which said W. M. had been duly nominated and appointed and registered as such public officer, and was then sued for and on behalf of the said company, according to the form and effect of the said Act of Parliament,) £ for their damages which they had sustained, as well on occasion of the not performing certain promises then lately made by the said company to the said S. F., &c., as for their costs and charges by them about their suit in that behalf expended, whereof the said W. M. was convicted, as by the record and proceedings thereof, then still remaining in the same Court, manifestly appeared; and then on behalf of the said S. F., &c., in the same Court, our said lady the Queen was informed, that although judgment was thereupon given, yet execution of the damages aforesaid still remained to be made to them. And our said lady the Queen was also informed, on behalf of the said S. F., &c., that T. R., &c., [fifteen defendants] now are members of the said co-partnership (d); wherefore the said S. F., &c., had humbly besought our said lady the Queen to provide them a proper remedy in that behalf and our said lady the Queen, being willing that what was just in that behalf should be done, commanded the said sheriffs, that by honest and lawful men of their bailiwick, they should make known to the said Thomas Rickerby, &c., that they should be before the said justices of our said lady the Queen at Westminster, on the of 18, to show if they had or knew, or any or either of them had or knew, of anything to say for themselves or himself, why the said Sarah Fowler, &c., ought not to have execution against the said Thomas Rickerby, &c., of the damages aforesaid, according to the force, form and effect of the said recovery, and of the statute in such case made and provided, if it should seem expedient for them so to do; and further, to do and receive what our said justices did then and there consider of them in that behalf; and the said sheriff should have there the names of those by whom they should make known to them, and that writ, at which day come here the said Sarah Fowler, &c., by Thomas Hornby, their attorney, and offer themselves on the fourth day against the said Thomas Rickerby, &c., and the sheriffs, to wit, sheriffs of London, aforesaid, at that day returned, that the said Thomas Rickerby, &c., had (d) See Esdaile v. Trustwell, 1 Exch.371; Nunn v. Claxton, 3 Exch. 712; and note, ante. If the scire facias be against the class of shareholders secondarily liable, they must be accurately described according to their class. (See ante, bk. ii. ch. ii.) And a scire facias against the members of and such a company at the time of the contract ought to state the prior execution against the members at the time of the execution, which is a condition precedent and is necessary to warrant the scire facias against a member at the time of the contract; Bank of England v. Johnson, 3 Exch. Rep. 604. 384 Appendix of Forms. [BK. II. not, nor had any of them, anything in their bailiwick, whereby they could make known to them or any of them as by the said writ they were commanded, nor were they, the said Thomas Rickerby, &c., or any of them found in the same. And the said Thomas Rickerby, &c., at that day, being solemnly demanded, the said Thomas Rickerby, &c., by their attorney, come; and the said Sarah Fowler, &c., pray that execution against the said Thomas Rickerby, &c., [reciting the names of those twelve out of the fifteen defendants who had appeared,] may be adjudged to them of the damages aforesaid, according to the force, form, and effect of the said recovery, and of the statute in such case made and provided. See also the form of a declaration in scire facias on a judgment against a public officer of a banking co-partnership, under 7 Geo. IV. c. 46, against a member of the co-partnership, to have execution on the judgment; Nunn v. Claxton, 3 Exch. Rep. 712. ANOTHER FORM. SCIRE FACIAS AGAINST MEMBERS OF JOINT-STOCK COMPANIES. Scire Facias in Common Pleas by the Public Officer of a Banking Company against a Member of another Banking Company, to have execution against him under the 7 Geo. IV. c. 46, s. 18, he being a Member at the time of issuing the writ of Scire Facias. , Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, defender of the faith, to the sheriffs of London, greeting: Whereas R. B., one of the public registered officers of certain persons united in co-partnership for the purpose of carrying on and carrying on the trade and business of bankers in England, according to the statute made and passed in the seventh year of the reign of his late Majesty King George the Fourth, for the better regulating co-partnerships of certain bankers in England, and called the National Provincial Bank of England, as such officer lately, on the day of A. D. in our Court before Sir John Jervis, knight, and his companions, her Majesty's justices of the Bench at Westminster, by the judgment of the same Court, recovered against R. L. as and being one of the public registered officers for the time being of certain persons united in co-partnership by and under the name and style of, and called, "The Imperial Bank of England," for the purpose of carrying on and carrying on the business of bankers in England, under the provisions of the said statute, and which said R. L. had been duly nominated and appointed one of the public officers of the said last-mentioned co-partnership, to be sued and was then sued as the nominal defendant, for and on behalf of the said lastmentioned co-partnership, according to the form and effect of the said statute, £ which in our same Court were adjudged to the said R. B., as such officer as aforesaid, for the damages which the said co-partnership called the N. P. B. E. had sustained, as well on occasion of the not performing of certain promises before then made to them by the said co-partnership called the I.B.E., as for his costs and charges by him about his suit in that behalf expended, whereof the said R. L., as such public officer as aforesaid, is convicted, as appears to us of record: and whereas, by and according to the provisions CH. II.] Appendix of Forms. 385 and form and effect of the said statute, execution upon any judgment in any action obtained against any public officer for the time being of any such copartnership, as in the said Act mentioned, carrying on the business of banking under the provisions of the said Act, whether as plaintiff or defendant, may be issued against any member or members for the time being of such co-partnerships and whereas S. H. now (e) is a member of the said co-partnership called the I. B. E., then and still being such a co-partnership as in the said statute mentioned, and then and still carrying on the business of banking under the provisions of the said statute, as by the information of the said R. B. in our said Court before our justices here, we have been given to understand, and now on the behalf of the said R. B. as such officer as aforesaid, in our said Court before our justices here we have been informed, that although judgment be thereupon given, yet execution of the damages aforesaid still remains to be made to him as such officer as aforesaid: Wherefore the said R. B. as such officer as aforesaid for and on behalf of the said co-partnership, called the N. P. B. E., hath humbly besought us to provide him a proper remedy in this behalf; and we, being willing that what is just and right in this behalf should be done, command you that by honest and lawful men of your bailiwick you make known to the said S. H., that he be before our justices at Westminster on the day of next, [or "instant"] to show if he have or knows of anything to say for himself why the said R. B., as such officer as aforesaid, should not have execution against him for the damages aforesaid, together with interest thereon at the rate of four pounds per centum per annum, from the said A. D. on which day the judgment aforesaid was entered up, according to the force, form, and effect of the said recovery, and of the said statute, if it shall seem expedient for him so to do; and further, to do and receive what our said Court before our justices of the bench here shall then consider of him in this behalf: and have you there the names of those by whom you shall so make known to him and this writ. Witness, Sir John Jervis, knight, at Westminster, the day of day of , A. D. ANOTHER FORM OF WRIT OF SCIRE FACIAS, AGAINST A MEMBER, FOR THE TIME BEING, OF A BANKING CO-PARTNERSHIP IN THE EXCHEQUER. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, defender of the faith, to the sheriffs of London, greeting: Whereas J. E., H. B., F. B., C. G., and H. H., lately in our Court before the barons of our Exchequer at Westminster, by the judgment of the said Court, recovered against Joseph Wood, one of the public officers for the time being, of and for certain persons united in co-partnership for the purpose of and carrying on the trade and business of bankers in England, according to the statute made and passed in the seventh year of his late Majesty King George the Fourth, intituled "An Act for the better regulating of Co-partnerships of certain Bankers in England, and for amending so much of an Act of the Thirtyninth and Fortieth Years of the Reign of his late Majesty King George the (e) See The Governor and Company of the Bank of Scotland v. Fenwick, 17 L. J., N. S., Ex. 92; 1 Exch. 792; 5 D. & L. 377, S. C.; Esdaile v. Trustwell, 1 Exch. 371; Nunn v. Claxton, 3 Exch. 712; ante, book ii. ch. ii. p. 141. CC |