In London, trials at nisi prius take place by immemorial custom, and the judges sit at Guildhall, when and as long as the exigency of business requires. And, by the statute 1 Geo. IV. c. 55. § 2. for giving further facilities to the proceedings in the court of King's Bench, any one of the judges of that court is authorized, at the [*812] request of the chief justice, to sit for the trial of causes at nisi prius in Westminster and London, on the same days on which the said chief justice, or any other judge of the same court, in the absence of the said chief justice, shall be sitting, for the trial of causes at those places respectively, so that the trial of two causes may be proceeded in at the same time: and all jurors, witnesses, and other persons, who may have been summoned or required to attend, and who ought to attend, at or for the trial of any cause before the said chief justice, during the time aforesaid, shall give their attendance at and for the trial thereof, before such other judge as may be sitting for the trial thereof, by virtue of that act; and it shall and may be lawful to and for the marshal, and other officers of the said chief justice, to appoint from time to time fit and proper persons, to be approved by the said chief justice, to attend for them and on their behalf respectively, before such judge: Provided always, that all causes intended to be tried at any sittings at nisi prius in Middlesex, or London, shall be entered for trial with the marshal of the said chief justice, and all process and other proceedings, for or relating to the trial thereof, shall be made and issued according to the practice and forms now in use; but, nevertheless, the trial of every cause which shall be tried in virtue of that act, shall be entered of record, as having been had and made before the judge before whom such cause shall happen to have been actually tried."

In the King's Bench and Common Pleas, particular days are appointed by the chief justices, for the trial of causes in London and Middlesex, at the sittings in and after each term. In the Exchequer of Pleas, it is a rule, that "the sitting in London shall be holden at the Guildhall of the said city, on the second day next preceding the end of the term; and that the sitting for the county of Middlesex shall be holden in the court of Exchequer in Westminster hall, on the day next preceding the end of the term: and that the sitting in London after each term, shall be holden on the second day next after the end of the term: and the sitting after each term in Middlesex, shall be holden on the sixth day of the sitting next after the end of the term." And, by a late notice," the chief baron sits at two o'clock, instead of six, in London and Middlesex: In other respects, he sits at nisi prius as usual. The king, by his prerogative, may try his cause either at bar or nisi prius; and he may try it in what county he pleases. In practice, however, it is usually tried in the [*813] court of Exchequer, in Middlesex: *and, in that court, the first seven days of the sittings after the end of each term in Mid

dlesex, are said to be appropriated to the trial of crown causes." Issues directed by the court of Chancery are tried in the King's Bench, or Common Pleas: and issues from the Exchequer, on the law side of the same court.

Previously to the sittings or assizes, at which the cause is intended to be tried, the plaintiff should give due notice of trial; and if he proceed to trial, without giving such notice, the verdict may be set aside for irregularity. Every notice of trial ought to be in writing; and given to the defendant, if he appear in person, or otherwise to his attorney, if his place of abode be known; but if the attorney's place of abode be unknown, the notice may be given to the defendant himself: And when the defendant is a prisoner, notice of trial may be given to the turnkey." In country causes, the notice of trial, in the King's Bench, should be given to the agent in town ; but in the Common Pleas, it seems that it may be given either to the agent in town, or to the attorney in the country,d except where it is given on the back of the issue, in which case, as the issue must be delivered, so the notice of trial must of necessity be given to the agent in town. In the Exchequer, all notices of trial given by the attornies or side clerks of the office of pleas, in causes instituted there, are required to be entered in the book of orders kept in such office, and a written notice of such entries left at the seat in the said office, of the attorney or clerk in court concerned for the defendant, or at his chambers or place of resi dence.f

In the King's Bench, upon the delivery of a paper book, wherein issue is joined, and notice of trial given, (as it may be,) on the back of the book, if the special pleadings be afterwards waived, and the general issue given, the notice which was given for the trial of the special issue, shall serve for notice of trial upon the general issue. And, in the Common Pleas, in all cases where the plaintiff's pleading concludes to the country, the defendant's [*814] attorney shall be bound to accept of notice of trial upon the back of such pleading, whether the same be delivered or left in the office; and such notice of trial shall be as good and effectual, as if issue had been actually joined. So, in the Exchequer, it is a rule, that "in all cases where the plaintiff concludes to the country, his attorney or clerk in court may give notice of trial, at the time of delivering

his replication or other subsequent pleading, in case issue shall be joined thereon, or of executing a writ of inquiry, in default of joining issue; which shall be deemed good notice of trial, from the time of the delivery of such replication or other subsequent pleading, in case issue shall be joined."i

:

Notice of trial may be, and is usually given on the back of the issue or paper book, in the King's Bench; or it may be given on a separate paper. In the former case, it need not be so particular as in the latter and therefore, where the issue was indorsed as follows, "Take notice of trial at the next assizes," this was holden to be a sufficient notice, without any mention of the date, county, or attorney's name; though it would have been otherwise, if given on a separate paper. And, in the Common Pleas, the continuance of a void notice of trial may operate as a new notice, if given in regular time.m When there are several defendants, and one of them pleads, and the other lets judgment go by default, the notice should express that the issue joined with the former will be tried, and that the jury will at the same time assess the damages against the latter."

If the venue be laid in London or Middlesex, and the defendant live within forty computed miles of London, there must be eight days notice of trial, exclusive of the day it is given, but inclusive of that on which the trial is to be had; and if the defendant live above forty computed miles from London, then fourteen days notice must be given. And it is a rule in both courts, that " in every notice of trial to be given for the sittings after any term, to be holden at the Guildhall of the city of London, it shall be specified whether the cause is intended to be tried at the first day of such sittings, or at the adjournment day; and that in every case in which such notice shall specify that the cause is to be tried at the adjournment day, it shall be sufficient to give such notice eight days before the first day of the sittings after term, if the defendant or defen[*815] dants reside above forty *miles from the said city of London, and four days before the said first day, if the defendant or defendants reside within that distance." In the Exchequer, by a late rule, "all notices of trial, in causes on the plea side of this court, for the sittings after term in London and Middlesex, shall, in case the defendant or defendants reside at a less distance from the cities of London or Westminster than forty miles, be given eight days before the day appointed by the lord chief baron, for the trial of the same causes; and in case the defendant or defendants reside forty miles or upwards therefrom, then such notices of trial shall be given fourteen days before such day appointed by the lord chief

baron as aforesaid; one day being considered inclusive, and the other exclusive."

In country causes, eight days notice of trial seems to have been formerly sufficient ; but now, by statute 14 Geo. II. c. 17. § 4. "where the defendant resides above forty miles from town, no cause shall be tried at nisi prius, either at the assizes or sittings in London or Westminster, unless notice of trial in writing has been given, at least ten days before such intended trial:" and hence ten days notice of trial is required, in all cases, at the assizes. But as this statute has no negative words, it is still necessary to give fourteen days notice of trial for the sittings in London or Westminster, where the defendant lives above forty computed miles from London." And when a defendant, residing in town at the issuing of the writ changes his residence permanently to the country, at the distance of above forty miles from town, before the delivery of the issue, he is entitled to fourteen days notice of trial. And the like notice is required, when the defendant usually resides abroad, and has no settled habitation in this country; or where his place of abode is above forty miles from London, though he may happen to be there at the time of the arrest, or notice of trial. But when the defendant being a practising attorney, has chambers in one of the inns of court, and a house above forty miles from London," or when he has a permanent residence in town, from which his absence is merely occasional or temporary," eight days notice of trial is sufficient: *which also seems to be the case, when there [*816] are several defendants, and one of them resides within forty miles of London. So, in the Exchequer, it is a rule, that in all cases where the venue is laid in the country, and a term's notice is not necessary, ten days notice of trial, exclusive of the day it is given, shall be deemed sufficient notice; but if the venue be laid in London or Middlesex, and the defendant reside above forty miles from London, then the plaintiff shall give fourteen days notice of trial, exclusive of the day it is given, unless a baron shall think fit to order otherwise."

Upon an old issue, or, in other words, when there have been no proceedings for four terms exclusive, or, as it seems, (in the King's Bench,) for a year after issue joined, a term's notice of the plaintiff's intention to proceed, is requisite; which notice must be given before the essoin day of the fifth, or other subsequent term:5

* 1 East, 688.

d R. H. 16 Geo. III. in Scac. Man. Ex. Append. 220.

2 Salk. 457. 645. 653. R. M. 4 Ann. (c.) K. B. R. E. 13 Geo. II. C. P. R. T. 26 & 27 Geo. II. § 5. in Scac. Man. Ex. Append. 211. 12. and see Append. Chap. XXXIV. § 7.

12 Salk. 645. 1 Str. 53T. Imp. K. B.

y Pr. Reg. 388. 2 Blac. Rep. 1205. 4 8 Ed. 359. & see R. M. 1654. § 21. C. P.

Durnf. & East, 552.

z Pr. Reg. 387.

a Id. ibid.

3 Maule & Sel. 500. 1 Chit. Rep. 669. (a.)

1 Str. 211.2 Str. 1164. K. B. Pr. Reg. 391. Barnes, 291. S. C. R. E. 13 Geo. II. C. P. R. T. 26 & 27 Geo. II. § 5. in Scac. Man. Ex. Append. 211, 12.

But

And a judge's or baron's summons, if no order has been made upon it, is not a proceeding within the meaning of this rule ; nor the suing out of a venire facias or distringas, in the vacation of the fourth term, though it be tested and entered as of that term: a judge's order, or notice of trial, though countermanded, or notice that the plaintiff will proceed in the cause, which has not been acted under, is such a proceeding as will prevent the necessity of giving a term's notice. The rule requiring a term's notice does not extend to a trial by proviso," or a motion for judgment as in case of a nonsuit ;" and being confined to voluntary delays, it does not apply, when the cause has been stayed by injunction or privilege; or when there has been an agreement to stay proceedings for a limited time, to enable the defendant to pay the debt, in default of which the plaintiff is to be at liberty to proceed.P Short notice of trial, in country causes, must be given four days at least before the [*817] commission day, one exclusive and the other inclusive : In town causes, two days notice seems to be sufficient ; but it is usual to give as much more as the time will admit of and if the defendant be under terms to take short notice of trial for the last sittings in term, and no notice be given for those sittings, he is not obliged to take short notice for the sittings after term. So, in the Common Pleas, an undertaking to accept short notice of trial for the sittings after term, given when there is not time for short notice of trial at the sittings, does not compel the defendant to accept short notice of trial at the adjourned sittings. Sunday is to be accounted a day in these notices, unless it be the day on which the notice is given."

If the plaintiff be not ready to proceed to trial pursuant to notice, he may countermand, or in some cases continue it. Notice of countermand, like notice of trial, ought to be in writing; and may be given to the attorney in the country, as well as the agent in town. Before the statute 14 Geo. II. c. 17. two days notice of countermand appears to have been sufficient in all cases, unless it was for a trial at the assizes, and the countermand was given to the agent in town; in which case it was required to be given four days before the commission day. But now, by that statute, § 5. the countermand of notice of trial at the assizes, or in a town cause where the defendant lives above forty miles from London, must be given six

2 Barn. & Ald. 594. 1 Chit. Rep. 317. C. P. 15. S. C.

a Id. ibid. 5 Durnf. & East, 634. Barnes, 308. 2 Blac. Rep. 1223.

1 Sid. 92. R. M. 4 Ann. (c.) K. B.

Doug. 71. 2 Blac. Rep. 784.

Þ 2 Bur. 660. 2 Blac. Rep. 762.

Id. Ibid. Cas. Pr. C. P. 3.

y 2 Str. 1073. Cas. Pr. C. P. 48, 9. 120. Pr. Reg. 393. Barnes, 298. S. C. Id. 306. and see Append. Chap. XXXIV. § 9.

R. M. 4 Ann. (c). K. B. 2 Str. 849. 1073. and see R. M. 1654. § 21. (a.) R.

R. E. 30 Geo. III. K. B. 3 Durnf. & M. 3 Geo. I. C. P. Barnes, 298. 305.