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; 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) 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 admitted by the parties, and the facts disputed; as in case of judgment on a verdict: thirdly, where [ *396] *both the fact and 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. 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 percuriam, 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 all judgments for the plaintiff upon pleas in abatement of the suit or action: in *which it is considered by [*397] 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 hath 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 can not 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 æstimationem pretii, damni, lucri,” dc. (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, that is, abstracted and entered in a book, *according to the directions of statute 4 and 5 W. and M. c. 20. But where damages are to be recovered, a jury [*398] 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. (6) 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 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 (g) Stiernhook, de jure Goth, l. 1. c. 4. (h) 8 Rep. 40, 61. (i) 8 Rep. 59. 11 Rep. 43. 5 Mod. 285. See Append. No. II, § 4. (k) F. N. B. 121. Co. Litt. 131. 8 Rep. 60. 1 Roll. Abr. 219. Lill. Entr. 379, C. B. Hil. 4 Ann. rot. 430. (6) [It has been said, by C. J. Wilmot, that "this is an inquest of office to inform the con science 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 promissory note, to refer it to the master or prothonotary to ascertain what is due for principal, interest, and costs, whose report supercedes the necessity of a writ of inquiry. 4 T. R. 275; 1 H. Bl. 541. And this practice is now adopted by the court of exchequer. 4 Price, 134; see further, Tidd, 8th ed. 817, 819. In cases of difficulty and importance, the court will give leave to have the writ of injury executed before a judge at sittings or nisi prius; and then the judge acts only as an assistant to the sheriff. prohibition of any statute. (1) 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 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 [*399] 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) 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, 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. (7) 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. 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 and 9 Wm. III, c. 11, 4 and 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. *The king (and any person suing to his use) (s) shall neither pay nor [*400] 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. (7) 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) 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. (8) 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 (1) 8 Rep. 60. (m) Salk. 54. Carth, 390. (n) 8 Rep. 59. 60. (7) In civil cases the rule is now otherwise. (0) Appendix, No. III, § 6. (8) The statute 3 and 4 Wm. IV, c. 42, gives cost against executors suing in the right of their testator, in all cases in which they would be liable to costs if suing in their own right, unless the court or judge otherwise orders. from paying costs, when plaintiffs, 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 give such paupers, if nonsuited, their election either to be whipped or pay the costs:(w) though that practice is now disused. (a) (9) It seems, however, agreed that a pauper may recover costs, though he pays none; (10) for the counsel and clerks are bound to give their labour to 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, 21 Jac. I, c. 16, and 22 and 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 statutes 4 and 5 W. and M. *c. 23, and 8 and 9 Wm. III, c. 11, if the trespass were committed in hunting or [*401] 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. 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 consider in the succeeding chapter. CHAPTER XXV. OF PROCEEDINGS IN THE NATURE OF APPEALS. PROCEEDINGS in the nature of appeals from the proceedings of the king's courts of law, are of various kinds: according to the subject-matter in which they are concerned. They are principally four. : I. A writ of attaint: (1) which lieth to inquire whether a jury of twelve men gave a false verdict; (a) that so the judgment following thereupon may be reversed and this must be brought in the lifetime of him for whom the verdict was given; and of two at least of the jurors who gave it. This lay, at the common law, only upon writs of assize; and seems to have been coeval with that institution by King Henry II, at the instance of his chief-justice, Glanvil: being probably meant as a check upon the vast power then reposed in the recognitors of assize, of finding a verdict according to their own personal knowledge, without the examination of witnesses. And even here it extended no farther than to such instances, where the issue was joined upon the very point of assize (the heirship, disseisin, &c.), and not on any collateral matter; as villenage, bastardy, or any other disputed fact. In these cases the assize was said to be turned into an inquest or jury (assisa vertitur in juratum), or that the assize should be taken in modum juratæ et non in modum assisæ; that is, that the issue should be tried by a common jury or inquest, and not by recognitors of (w) 1 Sid. 261. 7 Mod. 114. (z) See pages 214, 215. (x) Salk. 506. (a) Finch, L. 484. (y) 1 Eq. Ca. Abr. 125. (9) [But, as observed in Tidd Prac. 8th ed. 94, it does not appear that so disgraceful a proceeding was ever adopted by inflicting the punishmeut.] (10) [1 Bos. and P. 39. The pauper in such case can only recover as costs the sums he is actually out of pocket; not such sums as would have been so paid in an ordinary suit by any other plaintiff.] (1) Abolished by statute 6 Geo. IV, c. 50. VOL. II.-32 249 assize: (b) and then I apprehend that no attaint lay against the inquest or jury that determined such collateral issue. (c) Neither do I find any mention made by our ancient writers, of such a process obtaining after the trial by inquest or jury, in the old Norman or feudal actions *prosecuted by writ of entry. [*403] Nor did any attaint lie in trespass, debt, or other action personal, by the old common law: because those were always determined by common inquests or juries. (d) At length the statute of Westm. 1, 3 Edw. I, c. 38, allowed an attaint to be sued upon inquests, as well as assizes, which were taken upon any plea of land or of freehold. But this was at the king's discretion, and is so understood by the author of Fleta, (e) a writer contemporary with the statute; though Sir Edward Coke (f) seems to hold a different opinion. Other subsequent statutes (g) introduced the same remedy in all pleas of trespass, and the statute 34 Edw. III, c. 7, extended it to all pleas whatsoever, personal as well as real; except only the writ of right, in such cases where the mise or issue is joined on the mere right, and not on any collateral question. For though the attaint seems to have been generally allowed in the reign of Henry the Second, (h) at the first introduction of the grand assize (which at that time might consist of only twelve recognitors, in case they were all unanmous), yet subsequent authorities have holden, that no attaint lies on a false verdict given upon the mere right, either at common law or by statute; because that is determined by the grand assize, appealed to by the party himself, and now consisting of sixteen jurors. (i) The jury who are to try this false verdict must be twenty-four, and are called the grand jury; for the law wills, not that the oath of one jury of twelve should be attainted or set aside by an equal number, nor by less indeed than double the former. (k) If the matter in dispute be of forty pounds value in personals, or of forty shillings a year in lands and tenements, then, by statute 15 Hen. VI, c. 5, each grand juror must have freehold to the annual value of twenty pounds. And he that brings the attaint can give no other evidence to the grand jury than what was originally given to the petit. For, as their verdict is now trying, and the question is, whether or no they did right upon the evidence that appeared to them, the law adjudged it the highest absurdity to [ *404] produce any subsequent proof upon such trial, and to *condemn the prior jurisdiction for not believing evidence which they never knew. But those against whom it is brought are allowed, in affirmance of the first verdict, to produce new matter: (7) because the petit jury may have formed their verdict upon evidence of their own knowledge, which never appeared in court. It the grand jury found the verdict a false one, the judgment by the common law was, that the jurors should lose their liberam legem and become forever infamous; should forfeit their goods and the profits of their lands; should themselves be imprisoned, and their wives and children thrown out of doors; should have their houses razed, their trees extirpated, and their meadows ploughed; and that the plaintiff should be restored to all that he lost by reason of the unjust verdict. But as the severity of this punishment had its usual effect, in preventing the law from being executed, therefore by the statute 11 Hen. VII, c. 24, revived by 23 Hen. VIII, c. 3, and made perpetual by 13 Eliz. c. 25, an attaint is allowed to be brought after the death of the party, and a more moderate punishment was inflicted upon attainted jurors; viz., perpetual infamy, and, if the cause of action were above 401. value, a forfeiture of 20l. apiece by the jurors, or, if under 401., then 57. apiece: to be divided between the king and the party injured. So that a man may now bring an attaint either upon the statute or at common law, at his election; (m) and in both of them reverse the former judgment. But the practice of setting aside verdicts upon motion, and grant(b) Bract. l. 4, tr. 1, c. 34, §§ 2, 3, 4; tr. 3, c. 17; tr. 5. c. 4, §§ 1, 2. Flet. l. 5, c. 22, § 8. Co. Entr. 61, b. Booth. 213. (c) Bract. 4, 1. 34. 2. Flet. ibid. (d) Year-book, 28 Edw III, 15, 17. Ass. pl. 15. Flet. 5, 22, 16. (e) L. 5, ^. 22, ƒƒ S. 16. (f) 2 Inst, 130, 237. (g) Stat. 1 Edw. III, st. 1, c. 6. 5 Edw. III. c. 7. 28 Edw. III, c. 8. (h) See page 389. (i) Bract. . 4, tr. 5, c, 4, 42. Flet. 5. 22. 7. Britt. 242, b. Year-book, 12 Hen. VI. 6 Bro. Abr. tit. atteint, 42, 1 Roll. A br. 289. (k) Bract. l. 4, tr. 5, c. 4, § 2. Flet. 5, c. 22, § 7. (1) Finch, L. 486. (m) 3 Inst. 164. |