premises of law and fact, which stands thus: against him, who hath rode over my corn, I may recover damages by law: but A hath rode over my corn; therefore I shall recover damages against A. If the major proposition be denied, this is a demurrer in law: if the minor, it is then an issue of fact: but if both be confessed (or determined) to be right, the conclusion or judgment of the court cannot but follow. Which judgment or conclusion depends not therefore on the arbitrary caprice of the judge, but on the settled and invariable principles of justice. The judgment, in short, is the remedy prescribed by law for the redress of injuries; and the suit or action is the vehicle or means of administering it. What that remedy may be, is indeed the result of deliberation and study to point out, and therefore the style of the judgment is, not that it is decreed or resolv. ed by the court, for then the judgment might appear to be their own; but "it is considered," consideratum est per curiam, that the plaintiff do recover his damages, his debt, his possession, and the like: which implies that the judgment is none of their own; but the act of law, pronounced and declared by the court, after due deliberation and inquiry. All these species of judgments are either interlocutory or final. Interlocutory judgments are such as are given in the middle of a cause, upon some plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the suit. Of this nature are [397] all judgments for the plaintiff upon pleas in abatement of the suit : or action in which it is considered by the court, that the defendant do an. swer over, respondeat ouster: that is, put in a more substantial plea. (ƒ) It is easy to observe, that the judgment here given is not final, but merely interlocutory; for there are afterwards farther proceedings to be had, when the defendant has put in a better answer. But the interlocutory judgments, most usually spoken of, are those in, complete judgments, whereby the right of the plaintiff is indeed established, but the quantum of damages sustained by him is not ascertained: which is a matter that cannot be done without the intervention of a jury. As by the old Gothic constitution the cause was not completely finished till the nembda or jurors were called in " ad executionem decretorum judicii, ad aes"timationem pretii, damni, lucri, &c." (g) This can only happen where the plaintiff recovers: for, when judgment is given for the defendant, it is always complete as well as final. And this happens, in the first place, where the defendant suffers judgment to go against him by default, or nihil dicit; as if he puts in no plea at all to the plaintiff's declaration: by confession or cognovit actionem, where he acknowledges the plaintiff's demand to be just: or by non sum informatus, when the defendant's attorney declares he has no instructions to say any thing in answer to the plaintiff, or in defence of his client; which is a species of judgment by default. If these, or any of them, happen in actions where the specific thing sued for is recovered, as in actions of debt for a sum certain, the judgment is absolutely complete. And therefore it is very usual, in order to strengthen a creditor's security, for the debtor to execute a warrant of attorney to some attorney named by the creditor, empowering him to confess a judgment by either of the ways just now mentioned (by nihil dicit, cognovit actionem, or non sum informatus) in an action of debt to be brought by the creditor against the debtor for the specific sum due: which judgment, when confessed, is absolutely complete and binding; provided the same (as is also f 2 Saund. 30. g Stiernhook, de jure Goth. L. 1. c. 4. (8) As to warrants of attorney and cognovits, see Tidd, 8th ed. 591 to 603. VOL. II. 40 required in all other judgments) be regularly docquetted, that is, abstracted and entered in a book, according to the directions of statute 4 & [398] 5 W. & M. c. 20. But, where damages are to be recovered, a jury must be called in to assess them; unless the defendant, to save charges, will confess the whole damages laid in the declaration: otherwise the entry of the judgment is, "that the plaintiff ought to recover his "damages (indefinitely), but because the court know not what damages the "said plaintiff hath sustained, therefore the sheriff is commanded, that by the "oaths of twelve honest and lawful men he inquire into the said damages, "and return such inquisition into court." This process is called a writ of inquiry in the execution of which the sheriff sits as judge, and tries by a jury, subject to nearly the same laws and conditions as the trial by jury at nisi prius, what damages the plaintiff hath really sustained; and when their verdict is given, which must assess some damages, the sheriff returns the inquisition, which is entered upon the roll in manner of a postea: and thereupon it is considered, that the plaintiff do recover the exact sum of the damages so assessed. In like manner, when a demurrer is determined for the plaintiff' upon an action wherein damages are recovered, the judgment is also incomplete, without the aid of a writ of inquiry." Final judgments are such as at once put an end to the action, by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. In which case, if the judgment be for the plaintiff, it is also considered that the defendant be either amerced, for his wilful delay of justice in not immediately obeying the king's writ by rendering the plaintiff his due; (h) or be taken up, capiatur, till he pays a fine to the king for the h 8 Rep. 40. 61. (9) It has been said, by C. J. Wilmot. that "this is an inquest of office to inform the conscience of the court, who, if they please, may themselves assess the damages." 3. Wils. 62. Hence a practice is now established in the courts of king's bench and common pleas, in actions where judgment is recovered by default upon a bill of exchange or a promissory note, to refer it to the mas ter or prothonotary to ascertain what is due for principal, interest, and costs, whose report supersedes the necessity of a writ of inquiry, 4. T. R. 275. 1 H. Bl. 541. And this practice is now adopted by the courts of exchequer. 4 Price, 134; see further, Tidd, 8 ed. 617, 8, 9. In cases of difficulty and importance, the court will give leave to have the writ of inquiry executed before a judge at sittings or nisi prius; and then the judge acts only as an assistant to the sheriff. The number of the jurors sworn upon this inquest need not be confined to twelve; for when a writ of inquiry was executed at the bar of the cart of king's bench, in an action of scandalum magnatum, brought by the duke of York (afterwards James the Second) against Titus Oates, who had called him a traitor; fifteen were sworn upon the jury, who gave all the damages laid in the declaration, viz. 100,000l. In that case the sheriffs of Middlesex sat in court, covered, at the table below the judges. 3 St. Tr. 987. Before the 8 & 9 W. III. c. 11. the penalty in a bond for the performance of covenants, became forfeited upon a single breach thereof. But now by the 8th section of that statute, though the plaintiff is permitted to enter up judgment for the whole penalty, it can only stand as a security for the damages actually sustained. The plaintiff must then proceed by suggesting breaches on the roll, of which it is usual to give a copy to the defendant, with notice of inquiry for the sittings or assizes; and the damages are assessed upon the writ in the usual way by a jury; and upon payınent of them, execution upon the judgment entered up is stayed, the judgment itself remaining as a security against further breaches. See Tidd, 8 ed. 632. This statute does not extend to a bond conditioned for the payment of a sum certain at a day certain, as a post obit bond, 2 B. & C. 82.; nor a common money bond, 4 Ann. c. 16. s. 13. 1 Saund. 58.; nor a warrant of attorney payable by instalments, 3 Taunt. 74. 5 Taunt. 264.; though a bond be also given, 2 Taunt. 195.; nor to a bail-bond, 2 B. & P. 446.; nor a petitioning creditor's bond. 3 East, 22. 7 T. R. 300. But all other bonds, either for payment of money by instalments, or of annuities, or for the performance of any covenants or agreements, are within the statute. See 8 T. R. 126. 6 East, 550. 2 Saund. 187. n (c). 3 M. & S. 156. 1 Chitty on Pl. 507., where the parties in a bond agree that the sum mentioned to be paid on a breach of any of its covenants, shall be taken to be, and be considered as, stipulated damages, the case is not then within the statute, and the whole sum becomes at once payable, according to the terms of the agreement; for where the precise sum is the ascertained damage, the jury are confined to it. See 4 Burr. 2225. 2 B. & P. 346. 1 Camp. 78. 2 T. R. 32. Holt Rep. 43. Chitty. public misdemesnor which is coupled with the private injury, in all cases of force, (i) of falsehood in denying his own deed, (k) or unjustly claiming property in replevin, or of contempt by disobeying the command of the king's writ or the express prohibition of any statute. (1) But now in case of trespass, ejectment, assault, and false imprisonment, it is provided by the statute 5 & 6 W. & M. c. 12. that no writ of capias shall [399] issue for this fine, nor any fine be paid; but the plantiff shall pay 6s. 8d. to the proper officer, and be allowed it against the defendant among his other costs. And therefore upon such judgments in the common pleas they used to enter that the fine was remitted, and now in both courts they take no notice of any fine or capias at all. (m) But if judgment be for the defendant, then in case of fraud and deceit to the court, or malicious or vexatious suits, the plaintiff may also be fined; (n) but in most cases it is only considered, that he and his pledges of prosecuting be (nominally) amerced for his false claim, pro falso clamore suo, and that the defendant may go thereof without a day, eat inde sine die, that is, without any farther continuance or adjournment; the king's writ, commanding his attendance, being now fully satisfied, and his innocence publicly cleared. (0) 10 Thus much for judgments; to which costs are a necessary appendage;" it being now as well the mixim of ours as of the civil law, that "victus vic"tori in expensis condemnandus est :" (p) though the common law did not professedly allow any, the amercement of the vanquished party being his only punishment. The first statute which gave costs, co nomine, to the demandant in a real action was the statute of Glocester, 6 Edw. I. c. 1., as did the statute of Marlbridge, 52 Hen. III. c. 6,, to the defendant in one particular case, relative to wardship in chivalry: though in reality costs were always considered and included in the quantum of damages, in such actions where damages are given; and, even now, costs for the plaintiff are always entered on the roll as increase of damages by the court. (q) But, because those damages were frequently inadequate to the plaintiff's expenses, the statute of Glocester orders costs to be also added; and farther directs, that the same rule shall hold place in all cases where the party i 8 Rep. 59. 14 Rep. 43. 5 Mod. 285. See Append. No. II. § 4. k F. N. B. 121. Co. Litt. 131. 8 Rep. 60. 430. m Salk. 54. Carth. 390. 1 Roll. Abr. 219. Lill. Entr. 379. C. B. Hil. 4 Ann. rot. 18 Rep. 60. n 8 Rep. 59, 60. p Cod. 3. 1. 13. o Append. No. III. § 6. q Append. No. II. § 4. (10) At common law the death of a sole plaintiff or sole defendant at any time before final judg ment abated the suit, but now, by 17 Car. Íí. c. 8. where either party dies between verdict and judgment, it may still be entered up within two terms after the verdict. This statute does not apply where either party dies after interlocutory judgment, and before the return of the inquiry. 4 Taunt. 884. There must be a scire fac as to revive the judgment thus entered up, before execution. 1 Wils. 302. By the 8 & 9 W. III. c. 11. the casus omissus in the statute of Charles II. is supplied. It provides that in case of either party dying between interlocutory and final judgment in any action which might have been maintained by or against the personal represenLative of the party dying; or in case of one or more of the plaintiffs or defendants dying, in an action, the cause of which would by law survive to the survivors, the action shall not abate by reason thereof, but the death being suggested on the record, the action shall proceed. The death of either party in the interval of hearing and deciding upon motions in arrest of judgment, special verdicts, and the like, does not deprive the party of the right to enter up judgment, though the delay thus occasioned by the court may exceed two terms after verdict. See Tidd, 8 ed. 966, 7. 1168, 9. It has been held, that if the party die after the assizes begin, though before the trial of the cause, it is within the statute, which, being remedial, must be construed favourably, and the assizes being considered but as one day in law. 1 Salk. 8. 7 T. R. 31.; see 2 Ld. Raym. 1415. n. But in the common pleas, a verdict and judgment were set aside where the defendant died the night before trial at the sittings in term. 3 B. & P. 549. And where the verdict has been taken subject to a reference, the death of a party before an award, revokes the authority of the arbitrator. 1 Marsh, 366. 2 B. & A. 394. 2 Chitty R. 452. Chitty. (11). As to costa, see in general, Tidd, 8 ed. 979 to 1029. is to recover damages. And therefore in such actions where no damages were then recoverable (as in quare impedit, in which damages were [400] not given till the statute of Westm. 2. 13 Edw. I.) nó costs are al lowed; (r) unless they have been expressly given by some subsequent statute. The statute 3 Hen. VII. c. 10. was the first which allow. ed any costs on a writ of error. But no costs were allowed the defendant in any shape, till the statutes 23 Hen. VIII. c. 15. 4 Jac. I. c. 3. 8 & 9. W. III. c. 11. 4 & 5 Ann. c. 16. whch very equitably gave the defendant, if he prevailed, the same costs as the plaintiff would have had, in case he had recovered. These costs on both sides are taxed and moderated by the prothonotary, or other proper officer of the court. The king (and any person suing to his use) (s) shall neither pay nor receive costs; for besides that he is not included under the general words of these statutes, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them.13 And it seems reasonable to suppose, that the queen-consort participates of the same privilege; for in actions brought by her, she was not at the common law obliged to find pledges of prosecution, nor could be amerced in case there was judgment against her. (1) In two other cases an exemption also lies for paying costs. Ex. ecutors and administrators, when suing in the right of the deceased, shall pay none; (u) for the statute 23 Hen. VIII. c. 15. doth not give costs to defendants, unless where the action supposeth the contract to be made with, or the wrong to be done to, the plaintiff himself." And paupers, that is, such as will swear themselves not worth five pounds, are, by statute 11 Hen. VII. c. 12., to have original writs and subpoenas gratis, and counsel and attorney assigned them without fee; and are excused from paying costs, when plaintiff's, by the statute 23 Hen. VIII. c. 15. but shall suffer other punishment at the discretion of the judges. And it was formerly usual to 15 give such paupers, if nonsuited, their election either to be whipped or [401] pay the costs: (w) though that practice is now disused. (x)1 It seems however agreed, that a pauper may recover costs, though he pays none; for the counsel and clerks are bound to give their labour to 16 r 10 Rep. 116. u Cro. Jac. 229. 1 Ventr. 92. s Stat. 24 Hen. VIII. c. 8. x Salk, 506. (12) Wherever a party has sustained damage, and a new act gives another than the common law remedy, such party may recover costs as well as damages; for the statute of Glocester extends to give costs in all cases where damages are given to any plaintiff, in any action, by any statute after that parliament. 2 Inst. 289. 6 T. R. 355. (13) There are some exceptions to the rule, that the king neither pays nor receives costs. Thus, by 33 Hen. VIII. c. 39. s. 54. the king, in all suits, upon any obligations or specialties made to himself, or to his use, shall have and recover his just debts, costs, and damages, as other common persons used to do. By the 23 Geo. III. c. 35. if the goods and chattels are insufficient, 3 Price, 40. and the lands are sold towards discharging the debt due to the crown, in such case, "all costs and expenses incurred by the crown, in enforcing the payment of such debt, are to be paid." By 43 Geo. III. c. 99. s. 41. costs may be levied against collectors of taxes, in certain cases. See 3 Price, 280. In equity, the attorney-general constantly receives costs, where he is made a defendant in respect of legacies given to charities, or in respect of the immediate rights of the crown in cases of intestacy. And see 1 S. & S. 394. Chitty. (14) If executors sue as executors for money paid to their use after the testator's death, they shall pay costs. 5 T. R. 234. Tidd, 1014. When executors and administrators are defendants, they pay costs, like other persons. Tidd, 8 ed. 1016. Or wherever the cause of action arises in the time of the executor, as the conversion in the case of trover, the executor shall pay costs, because it is not necessary to bring the action in the character of executor. 7 T. R. 358. So an executor or administrator is liable to pay the costs of a nonpros. 6 T. R. 654. See in general, Tidd, 8 ed. 1014. (15) But, as observed in Tidd Prac. 8 ed. 94, it does not appear that so disgraceful a proceeding was ever adopted by inflicting the punishment. (16) 1 Bos. & P. 39. The pauper in such case can only recover as costs the sums he is actually him, but not to his antagonist. (y) To prevent also trifling and malicious actions, for words, for assault and battery, and for trespass, it is enacted by statutes 43 Eliz. c. 6., 17 21 Jac. I. c. 16., and 22 & 23 Car. II. c. 9. § 136. that, where the jury who try any of these actions shall give less damages than 40s. the plaintiff shall be allowed no more costs than damages, unless the judge, before whom the cause is tried, shall certify under his hand on the back of the record, that an actual battery (and not an assault only) was proved, or that in trespass the freehold or title of the land came chiefly in question. Also by statute 4 & 5 W. & M. c. 23. and 8 & 9 W. III. c. 11. if the trespass were committed in hunting or sporting by an inferior tradesman, or if it appear to be wilfully and maliciously committed, the plaintiff shall have full costs, (2) though his damages, as assessed by the jury, amount to less than 40s.18 After judgment is entered, execution will immediately follow, unless the party condemned thinks himself unjustly aggrieved by any of these proceedings, and then he has his remedy to reverse them by several writs in the nature of appeals, which we shall cosider in the succeeding chapter. CHAP. XXV. OF PROCEEDINGS IN THE NATURE OF PROCEEDINGS, in the nature of appeals from the proceedings of the king's courts of law, are of various kinds : according to the subjectmatter in which they are concerned. They are principally four. I. A writ of atlaint: which lieth to inquire whether a jury of twelve out of pocket, not such sums as would have been so paid in an ordinary suit by any other plaintiff; and it seems that he and his solicitor may be required to state on oath the amount thus expended in equity. Hullock on Costs, 228. (17) The 43 Eliz. c. 6. enacts, that where the plaintiff in any personal action, except for any title or interest in lands, or for a battery, recovers less than 40s. he shall have no more costs than damages, if the judge certifies that the debt or damages were under 40s. But if the judge does not grant such a certificate to the defendant, the plaintiff recovers full costs. Actions of trespass vi et armis, as for beating a dog, are within the statute. 3 T. R. 38. The certificate under the statute may be granted after the trial. This certificate it will be remarked, is to restrain the costs; but a certificate under the 22 & 23 Car. II. c. 9. is given in favour of the plaintiff to extend them from a sum under 40s. to full costs. If the defendant justifies the battery, the plaintiff shall have full costs without the judge's certificate, though the damages are under 40s., for it is held the admission of the defendant precludes the necessity of the certificate. But a justification of the assault only will not be sufficient for this purpose; for the judge must certify an actual battery. 3 T. R. 391. This certificate also may be granted a reasonable time after the trial. 2 Bar.& Cres. 621 & 580. In declarations for assault and battery, there is sometimes a count for tearing the plaintiff's clothes; and if this is stated as a substantive injury, and the jury find it to have been such, and not to have happened in consequence of the beating, the plaintiff will be entitled to full costs (1 T. R. 656.); unless the judge should assist the defendant under the 43 Eliz. c. 6. So in a trespass upon land, the carrying away, or asportavit, of any independent personal property will entitle the plaintiff to full costs, unless the asportation, as by digging and carrying away turves, is a mode or qualification of the trespass upon the land. Doug. 780. See these acts, and the cases upon them, fully collected, Tidd, 987, 8. 996 to 1005. Chitty. (18) The judge may certify a reasonable time after the trial. 2 Bar. & C. 580. 621. (1) The writ of attaint is abolished by the 60th section of the 6 Geo. IV. c. 50. sect. 60. See note, ante $57. c. |