totally laid aside, and the other two very seldom put in practice, it is because long experience has shown that a motion for a second trial is the shortest, cheapest, and most effectual cure for all imperfections in the verdict; whether they arise from the mistakes of the parties themselves, of their counsel or attorneys, or even of the judge or jury. 2. Arrest of judgment.— Arrests of judgment1 arise from intrinsic causes, appearing upon the face of the record. For variance. Of this kind are, first, where the declaration varies totally from the original writ; as where the writ is in debt or detinue, and the plaintiff declares in an action on the case for an assumpsit: for the original writ out of chancery being the foundation and warrant of the whole proceedings in the common pleas, if the declaration does not pursue the nature of the writ, the court's authority totally fails.2 Where verdict is without the issue. Also, secondly, where the verdict materially differs from the pleadings and issue thereon; as if, in an action for words, it is laid in the declaration that the defendant said, "the plaintiff is a bankrupt;" and the verdict find specially that he said, "the plaintiff will be a bankrupt." For insufficient pleading. Or, thirdly, if the case laid in the declaration is not sufficient in point of law to found an action upon. And this is an invariable rule with regard to arrests of judgment upon matters of law, "that whatever is alleged [*394] in arrest of judgment must be such matter as would upon demurrer have been sufficient to overturn the action or plea." As if, on an action for slander in calling the plaintiff a Jew, the defendant denies the words, and issue is joined thereon; now if a verdict be found for the plaintiff, that the words were actually spoken, whereby the fact is established, still the defendant may move in arrest of judgment, that to call a man a Jew is not actionable: and, if the court be of that opinion, the judgment shall be arrested, and never entered for the plaintiff. But the rule will not hold e converso, "that every thing that may be alleged as cause of demurrer will be good in arrest of judgment;" for if a declaration or plea omits to state some particular circumstance, without proving of which, at the trial, it is impossible to support the action or defence, this omission shall be aided by a verdict. As if, in an action of trespass, the declaration doth not allege that the trespass was committed on any 1 The defects upon record must be such as are not cured by verdict or by any statute of jeofails. The rule as to the defects that shall be cured by verdict is thus stated in 2 Saund. Rep. 228, n. (1): “When there is any defect, imperfection, or omission in any plead ing, whether in substance or form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission, is cured by the verdict at the common law." See, also, Gould Pl., ch. 10. § 13: 1 Chit. Pl. 673; [Andrews' Steph. Pl. 185.] By 15 and 16 Vict., c. 76, it is provided that when issue has been joined on a demurrer the judgment shall not be ar rested for any defect of form merely, but shall be given, "according to the very right of the cause and matter in law." 2 It is no longer necessary in England to mention in the writ any form of action. certain day; (w) or if the defendant justifies, by prescribing for a right of common for his cattle, and does not plead that his cattle were levant and couchant on the land; (2) though either of these defects might be good cause to demur to the declaration or plea, yet if the adverse party omits to take advantage of such omission in due time, but takes issue, and has a verdict against him, these exceptions cannot, after verdict, be moved in arrest of judgment. For the verdict ascertains those facts, which before from the inaccuracy of the pleadings might be dubious: since the law will not suppose that a jury, under the inspection of a judge, would find a verdict for the plaintiff or defendant, unless he had proved those circumstances, without which his general allegation is defective. (y) Exceptions, therefore, that are moved in arrest of judgment, must be much more material and glaring than such as will maintain a demurrer: or, in other words, many inaccuracies and omissions, which would be fatal, if early observed, are cured by a subsequent verdict; and not suffered, in the last stage of a cause, to unravel the whole proceedings. *But if the thing omitted be essential [*395] to the action or defence, as if the plaintiff does not merely state his title in a defective 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 nil debet (he owes nothing), (a) these cannot be cured by a verdict for the plaintiff in the first case, or for the defendant in the second. An immaterial issue.- If, by the misconduct or inadvertence of the pleaders, 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: (b) 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 parties replacitent (that the parties may replead); unless it appears from the whole record that nothing material can possibly be pleaded in any shape whatsoever, and then a repleader 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, &c., wherein there appears to have been the first defect, or deviation from the regular course. (e) Judgment. 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. 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 ad (w) Carth. 389. (a) Cro: Eliz. 778. (x) Cro. Jac. 44. (y) 1 Mod. 292. (z) Salk. 365. mitted by the parties, and the facts disputed, as in the case of judg ment on a verdict: thirdly, where *both the fact and the law arising thereon are admitted by the defendant; which [*396] 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. 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 stand 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 resolved by the court, for then the judgment might appear to be their own; but "it is considered," consideratum est per curiam (it is considered by the court), 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. Interlocutory and final. All these species of judgments are either interlocutory or final. Interlocutory judgments are such as are given in the middle of a clause, upon some plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the suit. On dilatory pleas. Of this nature are all judgments for the plaintiff upon pleas in abatement of the suit or action: in *which [*397] it is considered by the court that the defendant do answer 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 hath put in a better answer. Determining the merits, but leaving open the damages. 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. As by the old Gothic constitution the cause was not completely finished till the nembda or jurors were called (f) 2 Saund. 30. in "ad executionem decretorum judicii, ad æstimationem, pretii, damni, lucri," &c. (to execute the decrees of court, to estimate the price, damage, gain, &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 (I am not instructed), 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 judg ment, when confessed, is absolutely complete and binding; provided the same (as is also required in all other judgments) be regularly docquetted, that is, abstracted and entered in a book *ac[*398] cording to the directions of statute 4 and 5 W. and 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 law 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.1 (g) Stiernhook, de jure Goth. l. 1, c. 4. 1 The common American practice is to grant the defendant permission to plead on terms, when his demurrer is overruled. When damages are to be awarded, and the case is one for mere computa tion on a basis which is determined by the pleadings, this computation is now commonly made by an officer of the court, and the writ of inquiry is dispensed with. [See Andrews' Steph. PL 192, 193.] 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 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 public misdemeanor which is coupled with the private injury, in all cases of force, (¿) of falsehood in denying his own deed (), 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. (7) But now in case of trespass, ejectment, assault, and false imprisonment, it is provided by the statute 5 and 6 W. and M., c. 12, that no writ of capias shall issue for this fine, nor any fine be paid; but the plaintiff shall pay 68. 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 de[*399] fendant, 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) Costs. 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" (he who loses the suit pays costs to his adversary): (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 (by that name), to the defendant in a real action was the statute of Gloucester, 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 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. (2) 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 (i) 8 Rep. 59. 11 Rep. 43. 5 Mod. 285. See Append. No. II, § 4. Co. Litt. 131. 8 Rep. 60. i Roll. Abr. 210. Lill. Entr. 379, C. B. Hill, 4 Ann. rot. (0) Appendix, No. III, § 6. (r) 10 Rep. 116. (73) (m) Salk. 54. Carth. 390. |