Page:The Granite Monthly Volume 5.djvu/185

 PRACTICE. i6i

neither party takes anything as a consequence. It is evidence tending to show that the matter in controversy has been adjusted.

6. " Nonsuit," mean that the plaintiff backs out of court with a bill of costs against him, if the defendant sees fit to exercise his privilege.

7. " Call the defendant," and " deft, called," are simply relics of an ancient practice. Every deft, was presumed to have had personal service, and in con- sequence was presumed to be present in court. He was therefore entitled to his day in court, and by an ancient practice his name was called three times before his right to be heard was foreclosed. It is the notification which pre- cedes the order of default and judgment and the like.

S. " Dismissed," means that the cause is dismissed upon its merits. Its effect is that the suit can never be renewed.

9. " Dismissed without prejudice," means that the cause goes from the docket without any consideration of the merits of the cause, and as a conse- (juence, that the libel in divorce, or in admiralty, or bill in equity, and in gen- eral any other cause brought into court by any other process, may be renewed, that is, that a fresh suit may be brought for the same cause.

10. "Transferred and continued," means that questions of law have been raised and taken to a higher court, and that the cause has been continued in the court below to await the determination of these questions in the court above.

11. " Issue to the court," means that the cause shall be tried by the presid ing justice instead of being tried by jury or by any other method.

12. '• Issues to the trial term," means that the law court will frame certain issues to be sent to the trial term and there to be determined ordinarily by a jury. This term arose from the chancery practice in the mother country. The Lord Chancellor had no jury in attendance upon his court. He had the power to decide all questions of law and fact, but he sometimes directed certain issues to be sent to a jury court. In fact, he framed certain questions to be answered by the jury. The reason assigned* was that he might thereby inform his con- science, but he was not bound by anything the jury said or did, and might decide the whole case both as to law and fact himself, and disregard their answers. In practice these issues are generally framed in probate appeals where the question is whether a will was executed under undue influence, or when the testator was insane, or where it was alleged that the signature was a forgery. Formerly " issues " were sometimes framed in chancery but this is rarely done at the present day.

13. " Case discharged," means ordinarily that the law court after deciding the questions of law raised by it has remitted the cause to the court below for some further order, but the entry is sometimes made where the case, owing to mistake or some other reason, was not what the parties intended to have trans- ferred to the law court.

14. " Court," means that there is something for the consideration of the court before the case is disposed of.

15. " Judgment «////r/;v; /////(T," means that owing to the death of the de- fendant or for some other good reason, judgment be entered up at the present term as of some prior term.

16. "Order of notice." and "order complied with," are terms unknown to the common law. The theory of the common law was that no judgment against a defendant was valid unless the court obtained jurisdiction over him by personal service ; but by statute the property of an absent defendant might be attached. Notice might be given to him either in person by order of the court or constructive notice by publication in a newspaper. After either of these orders had been complied with, and the defendant had failed to appear

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