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fective manner, but sets forth a title that is totally defective in itself (2), or if to an action of debt the defendant pleads not guilty instead of nildebet(a),81 these cannot be cured by a verdict for the plaintiff in the first case, or for the defendant in the second.
If, by the misconduct or inadvertence of the pleaders (6), the issue be joined on a fact totally immaterial, or insufficient to determine the right, so that the court upon the finding cannot know for whom judgment ought to be given; as if, in an action on the case in assumpsit against an executor, he pleads that he himself (instead of the testator) made no such promise (6): or if, in an action of debt on bond conditioned to pay money on or before a certain day, the defendant pleads payment on the day (c): (which issue, if found for the plaintiff, would be inconclusive, as the money might have been paid before ;) in these cases the court will after verdict award a repleader quod partes replacitent ; unless it appears from the whole record that nothing material can possibly be pleaded in any shape whatsoever, and then are pleader would be fruitless (d). And, whenever a repleader is granted, the pleadings must begin de novo at that stage of them, whether it be the plea, replication, or rejoinder, fc. wherein there appears to have been the first defect, or deviation from the regular course (e).
If judgment is not by some of these means arrested within the first four days of the next term after the trial, it is then to be entered on the roll or record (7). Judgments are the sentence of the law, pronounced by the court upon the matter contained in the record ; and are of four sorts. First, where the facts are confessed by the parties, and the law determined by the court ; as in case of judgment upon demurrer : secondly, where the law is admitted by the parties, and the facts disputed; as in case of judgment on a verdict : thirdly, where *both the fact and [*396] the law arising thereon are admitted by the defendant; which is the case of judgments by confession or default: or, lastly, where the plaintiff is convinced that either fact, or law, or both, are insufficient to support his action, and therefore abandons or withdraws his prosecution ; which is the case in judgments upon a nonsuit or retraxit. 82
The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law. It is the conclusion that naturally and regularly follows from the 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 (:) Salk. 305.
(c) Stra. 904 (C) Cro. Eliz. 778.
(d) 4 Burr. 301, 302. (6) 2 Ventr. 190.
(e) Raym. 458. Salk. 579. (6) The following rules have been laid down 5thly. That a repleader cannot be awarded on this subject : A repleader ought never to be after a default at nisi prius ; to which may be allowed till trial, because the fault of the is. added, that it can never be awarded after a sue may be helped after the verdict by the sta. demurrer or writ of error, but only after issue tute of jeofails. 2dly. If a repleader be de- joined. 3 Salk. 306. Nor where the court nied, where it should be granted, or granted can give judgment on the whole record, where it should be denied, it is error. 3dly. Willes, 532; and it is not grantable in favour The judgment of repleader is general, and the of the person who made the first fault in parties must begin again at the first fault pleading. Doug. 396 ; see 2 Saumd. 319. b. which occasioned the immaterial issue. 1 (7) If a verdict is taken generally, with enLord Raym. 169. Thus if the declaration be tire damages, judgment may be arrested if any. ill, and the bar and replication are also ill, the one count in the declaration is bad ; but if parties must begin de' novo: but if the bar be there is a genend verdict of guilty upon an ingood and the replication ill, at the replication. dictment consisting of sereral counts, and any 3 Keb. 664. 4thly. No costs are allowed on one count is good, that is held to be sufficient. either side. 6 T. R. 131. 2 B. & P. 376. Doug. 730.
(81) See Hov. n. (81) at end of the Vol. B. III. (82) Ib. (82) B. III.
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 resolved 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.83 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 all judgments
for the plaintiff upon pleas in abatement of the suit or action : in [*397] *which it is considered by the court, that the defendant do answer
over, respondeat ouster ; that is, put in a more substantial plea (f). 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 incomplete 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.84 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 aestimationem pretii, damni, lucri, fc. (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 instruction 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 required in all other judgments) be regularly docquetted, [*398] that is, abstracted and entered in a book, "according to the diU) Saund. 30.
(g) Stiernhook, de jure Goth. I. 1, c. 4. (83) See Hov. n. (83) at the end of the Vol. B. III. (84) Ib. (84) B. III.
rections of statute 4 & 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 plaintífi 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 (8).
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
(8) It has been said, hy C. J. Wilmot, that stand as a security for the damages actually "this is an inquest of office to inform the con- sustained. The plaintiff must then proceed science of the court, who, if they please, may by suggesting breaches on the roll, of which themselves assess the damages." 3 Wils. 62. it is usual to give a copy to the defendant, Hence a practice is now established in the with notice of inquiry for the sittings or assicourts of king's bench and common pleas, in ses; and the damages are assessed upon the actions where judgment is recovered by de- writ in the usual way by a jury; and upon fault upon a bill of exchange or a promissory payment of them, execution upon the judg. note, to refer it to the master or prothonotary ment entered up is stayed, the judgment itself to ascertain what is due for principal, interest, remaining as a security against further breach. and costs, whose report supersedes the neces- See Tidd, 8 ed. 632. This statute does sity of a writ of inquiry. 4 T. R. 275. 1 H. not extend to a bond conditioned for the pay. Bl. 541. And this practice is now adopted by ment of a sum certain at a day certain, as a the court of exchequer. 4 Price, 134; see post obit bond, 2 B. & C. 82; nor a common further. Tidd, 8 ed. 817, 8, 9.+ In cases money bond, 4 Ann. c. 16. s. 13. 1 Saund. 58 ; of difficulty and importance, the court will nor a warrant of attorney payable by instalgive leave to have the writ of inquiry execut- Inents, 3 Taunt. 74. 5 Taunt. 264 ; though a ed before a judge at sittings or nisi prius; and bond be also given, 2 Taunt. 195; nor io a then the judge acts only as an assistant to the bail-bond, 2 B. & P. 416 ; nor a petitioning sheriff. The number of the jurors sworn creditor's bond. 3 East. 22. 7 T. R. 300. upon this inquest need not be confined to But all other bonds, either for payment of mo. twelve ; for when a writ of inquiry was exe- ney by instalınents, or of annuities, or for the cuted at the bar of the court of king's bench, performance of any covenants or agreements, in an action of scandalum magnatum, brought are within the statute. See 8 T. R. 126. 6 by the duke of York (afterwards James the East. 550. 2 Saund 187. n. (c). 3 M. & S. Second) against Titus Oates, who had called 156. 1 Chitty on Pl. 507, where the parties him a traitor; fifteen were sworn upon the in a bond agree that the sum mentioned to be jury, who gave all the damages laid in the de. paid on a breach of any of its covenants, shall claration, riz. 100,0001. In that case the che. be taken to be, and be considered as, stipulatriffs of Middlesex sat in couri, covered, at ed damages, the case is not then within the sta. the table below the judges. 3 St. Tr. 987. tute, and the whole sum becomes at once
Before the 8 & 9 W. III. c. 11. the penalty payable, according to the terms of the agrer. in a bond for the performance of covenants, ment; for, where the precise sum is the ascerbecame forfeited upon a single breach thereof. tained damage, the jury are confined to it. But now by the 8th section of that statute, See 4 Burr. 2925. 2 B. & P. 346. amp. though the plaintiff is permitted to enter up 2 T. R. 32. Holt. Rep. 43. judgment for the whole penalty, it can only
† In New York, if the declaration set forth price, or if it be on a bail-bond where the oria written contract for the absolute payment of ginal suit contained such declaration, the money, or on a promissory note, bill of ex- clerk may assess the damages. (2 R S. 336, change, or draft, or for the payment of a sum 0 1,2: 358, 0 10.) For the act corresponding certain though payable in specific articles, or to 8 & 9W. II. c. 11. see 2 R. S. 378, 95, for the dehvery of specific articles at a fixed &c.
the remedy he sues for. In which case, if the judgment be for the plain. tiff, 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 (1); or be taken up, copiatur, till he pays a fine to the king for the public misdemeanor 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 issue for this fine, nor any fine be paid ; but the plaintiff 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 [*399] 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 () (10).
Thus much for judgments ; to which costs are a necessary appendage; it being now as well the maxim of ours as of the civil law, that “ victus victori 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, eo nomine, to the demandant in a real action was the statute of Gloucester, 6 Edw. I. c. 1, (h) 8 Rep. 40. 61.
(1) 8 Rep. 60. (1) 8 Rep. 59. 11 Rep. 43. 5 Mod. 285. See Append. No. II. 04.
(n) 8 Rep. 59, 60. (k) F. N. B. 121. Co. Litt. 131. 8 Rep. 60. 1 (0) Append. No. III. 06.
(p) Cod. 3. 1. 13.
(m) Salk. 54. Carth. 390.
Roll. Abr. 219. Lill. Entr. 379. C. B. Hil. 4 Ann. rot. 430.
(10) At common law the death of a sole in arrest of judgment, special verdicts, and the plaintiff or sole defendant at any time before like, does not deprive the party of the right to final judgment abated the suit, but now, by enter up judgment, though the delay thus oc17 Car. II. c. 8. where either party dies be- casioned by ihe court may exceed two terms tween verdict and judgment, it may still be after verdict. See Tidd, 8 ed. 966, 7. 1168, entered up within iwo terms after the verdict. 9. It has been held, that if the party die after This statute does not apply where either party the assises begin, though before the trial of the dies after interlocutory judgment, and before cause, it is within the statute, which, being the return of the inquiry. 4 Taunt. 884. remedial, must be construed favourably, and There must be a scire facias to revive the the assises being considered but as one day in judgment thus entered up, before execution. law. 1 Salk. 8. 7 T. R. 31; see 2 Ld. Raym. í Wils. 302. By the 8 & 9 W. III. c. 11. the 1415. n. But in the common pleas, a verdict casus omissus in the statute of Charles II. is and judgment were set aside when the desupplied. It provides that in case of either fendant died the night before trial at the sitparty dying between interlocutory and final tings in term. 3 B. & P. 549. And where judgment in any action which might have the verdict has been taken subject to a refe. been maintained by or against the personal re. rence, the death of a party before an award, presentative of the party dying; or in case of revokes the authority of the arbitrator. i one or more of the plaintiffs or defendants dy. Marsh, 366. 2 B. & A. 394. 2 Chitty R. 432. ing, in an action, the cause of which would hy The same law prevails in New York, (2 R. law survive to the survivors, the action shall S. 386, &c.) except that the death of a party not abate by reason thereof, but the death before rerdict actually rendered, though on a being suggested on the record, the action shall day of the sitting of the court, avoids the ver. proceed. The death of either party in the in- dict as to such party. (Id. 387. 06.) ierval of hearing and deciding upon motions
as did the statute of Marlbridge, 52 Hen. Ill. 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 (9). But, because those damages were frequently inadequate to the plaintiff's expenses, the statute of Gloucester orders costs to be also added; and farther directs, that the same rule shall hold place in all cases where the party is to recover damages. And therefore in such actions where no damages were then recoverable (as in quare impedit, in which damages were not given till the statute of Westm. 2. 13 Edw. I.) no costs are now allowed (r); unless they have been expressly given by some subsequent statute (11). The statute 3 Hen. VII. c. 10. was the first which allowed 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. which 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 (12).
*The king (and any person suing to his use) (s) shall neither [*400] 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 (t). In two other cases an exemption also lies from paying costs. Executors and administrators, when suing in the right of the deceased, shall pay none (u);85 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 (14), (15). (9) Append. No. II. 0 4.
(t) F. N. B. 101. Co. Litt. 133.
( 10 Rep. 116.
(11) Wherever a party has sustained damage, ment of such debt, are to be paid.” By 43 and a new act gives another than the coin- Geo. III. c. 99. s. 41. costs may be levied mon law remedy, such party may recover costs against, collectors of taxes, in certain cases. as well as damages ; for the statute of Glou- See 3 Price, 280. In equity, the attorney-ge. cester extends to give costs in all cases where neral receives costs, where he is made a dedamages are given to any plaintiff, in any ac- ferdant in respect of legacies given to charition, by any statute after that parliament. 2 ties, or in respect of the immediate rights of last, 289. 6 T. R. 355.
the crown in cases of intestacy. And see 1 (12) As to costs in New York, see 2 R. S. & S. 394. S. 613, &c.; the state is liable for costs where (14) If executors sue as executors for moit is the actual plaintiff; when the suit is in ney paid to their use after the testator's death, name of the People on behalf of a relator, he they shall pay costs. 5 T.R. 234. Tidd, 1014. is then liable. (Id. 619. $ 38, 39.)
When executors and administrators are de. (13) There are some exceptions to the rule, fendants, they pay costs, like other persons. that the king neither pays nor receives costs. Tidd, 8 ed. 1016. Or wherever the cause of Thus, by 33 Hen. VIII. c. 39. s. 54. the king, action arises in the time of the executor, as in all suits, upon any obligations or special. the conversion in the case of trover, the exeties made to himself, or to his use, shall have cutor shall pay costs, because it is not neces. and recover his just debts, costs, and damages, sary to bring the action in the character of as other common persons used to do. By the executor. 7 T. R. 358. So an executor or 25 Geo. III. c. 35. if the goods and chattels administrator is liable to pay the costs of a are insufficient, 3 Price, 40. and the lands are nonpros. 6 T. R. 654. See in general, Tidd, sold towards discharging the debt due to the 8 ed. 1014. crown, in such case, wall costs and expenses (15) In New-York, executors and adminis. incurred by the crown, enforcing the pay. trators, whether plaintiffs or defendants, are VOL. II.
(85) Sce Hov. n. (85) at the end of the Vol. B. III.