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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 pro*But if the thing omitted be essential to the action or de
ceedings. manner, but sets forth a title that is totally defective in itself,(z) or if to an ac tion of debt the defendant pleads not guilty instead of nil debet, (a) these cannot be cured by a verdict for the plaintiff in the first case, or for the defendant in the Becond.
*395] fence, as if the plaintiff does not merely state his title in a defective
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 partes 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 *396] and the facts disputed; as in case of judgment on a verdict: thirdly, where *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
that fact therefore was not the omission of a circumstance necessary in the proof: in other words, the verdict in neither case raises a presumption that the fact omitted was proved to the jury. But an instance in point may be put thus: if a man states the grant of a reversion, which can only be conveyed by deed, without alleging it to have been by deed, here if the fact of the grant be put in issue and found by the jury, the verdict covers the omission; for without proof of the deed the presumption is that it could not have been so found.-COLERIDGE.
The following rules have been laid down on this subject. A repleader ought never to be allowed till trial, because the fault of the issue may be helped after the verdict by the statute of jeofails. 2dly. If a repleader be denied where it should be granted, or granted where it should be denied, it is error. 3dly. The judgment of repleader is gene ral, and the parties must begin again at the first fault which occasioned the immaterial issue. 1 Lord Raym. 169. Thus, if the declaration be ill, and the bar and replication are also ill, the parties must begin de novo; but if the bar be good and the replication ill, at the replication. 3 Keb. 664. 4thly. No costs are allowed on either side. 6 T. R. 131. 2 B. & P. 376. 5thly. That a repleader cannot be awarded after a default at nisi prius; to which may be added, that it can never be awarded after a demurrer or writ of error, but only after issue joined, (3 Salk. 306,) nor where the court can give judgment on the whole record, (Willes, 532;) and it is not grantable in favour of the person who made the Erst fault in pleading. Doug. 396. See 2 Saund. 319, b.-CHITTY.
If a verdict is taken generally, with entire damages, judgment may be arrested if any one count in the declaration is bad; but if there is a general verdict of guilty upon & ndictment consisting of several counts, and any one count is good, that is held to be ufficient. Doug. 730.—CHITTY.
to support his action, and therefore abandons or withdraws his prosecution; which is the case in judgments upon a non-suit 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 de murrer 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. 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 [*397 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 further 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. 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, &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 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
(5)2 Saund. 30.
(✔) Stiernhook, de jure Goth. l. 1, c. 4.
For the purpose of preventing frauds upon creditors by secret warrants of attorney to confess judgment, it is enacted, by statute 3 Geo. IV. c. 39, enlarged by 6 & 7 Vict. c. 66, that the clerk of the dockets of the court of Queen's Bench shall cause a book in which the particulars of every warrant of attorney and cognovit actionem shall be entered; and also a book or index shall be kept of names of persons to whom warrants of attorney are given, which shall be open to inspection. And by the Bankrupt-Law Consolidation Act, 1849, s. 137, every judge's order given by a trader defendant, whereby the plaintiff
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 directions
of statute 4 & 5 W. and M. c. 20.10 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."
is authorized to sign judgment or issue execution, (or a copy of this order,) must be filed with the clerk of the docquets in the Queen's Bench within twenty-one days after the making of such order: otherwise judgment signed thereon, or execution issued, shall be null and void. And by stat.1 & 2 Vict., c. 110, a more important alteration has been made in the same respecting warrants of attorney and cognovits. By s. 9, after reciting that it is expedient that provision should be made for giving every person executing such instruments due information of the nature thereof, it is enacted that no warrant of attorney or cognovit shall be of any force unless an attorney of one of the superior courts shall be present on behalf of the person executing it and shall subscribe his name as a witness. And by s. 10, a warrant of attorney or cognovit not formally executed shall be invalid. STEWART.
10 The judgment must be re-registered every five years, in order to remain in force and preserve its priority of subsequent judgment-creditors. 1 & 2 Vict. c. 110. 3 & 4 Vict. c. 82, s. 2. 2 Vict. c. 11, s. 1. 18 & 19 Vict. c. 15, s. 4. Freer vs. Hesse, 22 L. F.
"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 master 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. Bla. 541. And this practice is now adopted by the court of exchequer. 4 Price, 134. See, further, Tidd, 8th ed. 817, 818, 819. 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 court 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.-CHRISTIAN. 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 payment of them, execution upon the judgment entered up is stayed, the judgment itself remaining as a security against further breaches. See Tidd, 8th 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 Anne, c. 16, s. 13. 1 Saund. 58,) nor u warrant of attorney payable by instalments, (3 Taunt. 74. 5 Taunt. 264,) though a bond he also given, (2 Taunt. 195,) nor bail-bond, (2 B. & P. 446,) nor a petitioning
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 con sidered 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 misdemea nour 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. and M. c. 12, *that no writ of capias shall issue for this fine, nor any fine be paid; but [*399 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 judg ments 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 tho 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 further continuance or adjournment; the king's writ, commanding his attendance, being now fully satisfied, and his innocence publicly cleared.(0)12
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 pro
(A) 8 Rep. 40, 61.
(8 Rep. 59. 11 Rep. 43. 5 Mod. 285. See Append. No. II.
(*) F. N. B. 121. Co. Litt. 131. 8 Rep. 60. 1 Roll. Abr. 219. Lill. Entr. 379, C. B. Hil. 4 Ann. rot. 430.
(1) 8 Rep. 60.
(m) Salk. 54. Carth. 390.
() Append. No. III. 2 6.
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.
12 At common law the death of a sole plaintiff or sole defendant at any time before finu. judgment abated the suit; but now, by 17 Car. II. 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 facias 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 representative 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 judg ment, though the delay thus occasioned by the court may exceed two terms after verdict. See Tidd, 8th ed. 966, 967, 1168, 1169. 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, 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 when 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 Chitt. R. 432.-CHITTY.
fessedly 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 Marlberge, 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.(g) But because those damages were frequently inadequate to the plaintiff's expenses, the statute of Gloucester orders costs to be also added; and further 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 *400] 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 & 9 W. III. c. 11, 4 & 5 Anne, 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 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." 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 the 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 plaintiffs, by the statute 23 Hen. VIII. c. 15, but shall
(9) Append. No. II. 24.
Stat. 24 Hen. VIII. c. 8.
() F. N. B. 101. Co. Litt. 133.
13 Wherever a party has sustained damage, and a new act gives another than the com mon-law remedy, such party may recover costs as well as damages; for the statute of Gloucester 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.—CHITTY.
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 25 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 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.
15 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, 8th 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 non-pros. 6 T. R. 654. See, in general, Tidd, 8th ed. 1014.-CHRISTIAN.