Imágenes de páginas


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),! 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 fór 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 b.fore 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 repleuder 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 (2) Salk. 305.

(c) Stra. 904 (a) Cro. Eliz. 778.

(d) 4 Burr. 301, 302. (0) 2 Ventr. 190.

(e) Raym. 458. Salk. 579. (6) The following rules have been laid down Sihly. 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 cum 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 pied, 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 replcader 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 Saund. 319. b, which occasioned the immaterial issue. I 17) Mi a verdict is taken generally, with en Lord 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 coont in the declaration is bad; but it Darties must begin de novo : but if the bar be there is a general verdict of guilty upon an in. food 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 beld to be suffic'ent either side. 6 T. R. 131. 2 B. & P. 376. Doug. 730.

(81) See Hov, n. (81) at end of the Yni B. III. (82) Ib. (821 B U)



corn; chiefore I shall recover damages against A. If the major propos sition 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 judgmeni, 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 18, 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. Interlo cutory 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 hnally determine or complete the suit. or this nature are judginents

Tor 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, respondeal ouster ; that is, put in a more substantial plea (S). 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. 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, sfc. (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 desence of his client; which is a species of judgment by default. It 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 consess a judyment by either of the ways just now mentioned (by nihil dicit, cognovit acAtonem, 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.

(8) Stiornhook, de jure Goth. I. 1, c. 4 (83) See Hov. 0. (83) at the end of tho Vol. B. III. 194) Ib. (84) BIL

actions of statute 4 & 5 W. & M. c. 20. But, where dainages are to it recovered, a jury must be called in to assess them; unless the de endant, to save charges, will confess the whole damages laid in the dec.a ration : otherwise the entry of the judgment is, “ that the plaintiff ough o recover his damages indefinitely), but because the court know now 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, by C. J. Wilmot, ihat 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 hemselves assess the damages." 3 Wils. 62. it is usual to give a copy to the desendant Hence a practice is now established in the with notice of inquiry for the sittings or assi courts of king's bench and common pleas, in 'ses; und the damages are assessed upon the actions where judgment is recovered by de. writ in the usual way by a jury : and upor 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 mnent entered op is stayed, the judgment itselt o ascertain what is due for principal, interest, remaining as a security against further breach and costs, whose report supersedes the neces- es. See Tidd, 8 ed. 632. This statute does sity of a writ of inquiry. 4 T. R. 275. 1H 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 instal. give leave to have ibe writ of inquiry execut. ments, 3 Taunt. 74. 5 Taunt. 264 ; though ed before a judge at sittings or nisi prius ; and bond be also given, 2 Taunt. 195; nor to a :hen the judge acts only as an assistant to the, 2 B. & P. 446; 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. welve ; for when a writ of inquiry was exe- ney by instalınents, or of annuities, or for the guted 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 uy 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 aim a traitor ; fifteen were sworn upon the in a bond agree that the sum mentioned to be inry, who gave all the damages laid in the de. paid on a breach of any of its covenants, shall claration, viz. 100,0001. In that case the che. be taken to be, and be considered as, stipulatriffs of Middlesex sat in couri, covered, ated 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. Il. the penalty payable, according to the terms of the agree. in a bond for the performance of covenants, ment; for, where the precise sum is the ascer became 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. 2225. 2 'B. & P. 346. I Camp. though the plaintiff is permitted to enter up 78. 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 ori 1 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. 356, change, or drast, or for the payment of a sum 01, 2: 358. (10.) For the act corresponding mertain though payable in specific articles, or to 8 & 9 W. lll. c. 11. see 2 R. S. 378, 05. for the delivery of specific articles at a fixed &e


te remedy he sues for. In which case, if the judgment be for the plainif, 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 be pays a fine to tho 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 uninstly 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 (mn). *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 sun, and that the defendant may go thereof without a day, eat inde sine dic, that is, without any farther continuance or adjournment; the king's writ, commanding his attendance, being now fully satisfied, and his innocenco publicly cleared (o) (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, thal“ 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. (A) 8 Rep. 40. 61.

(1) 8 Rep. 60. (1) 8 Rep. 59. 11 Rep. 43. 5 Mod. 285. See Append. No. II. 04.

(R) 8 Rep. 59, 60. (k) F. N. B. 121. Co. Litt. 131. 8 Rep. 60. 1 (0) Append. No. III. 46.

(p) Cod. 3. I. 13.

c. I,

(m) Salk. 54. Carth. 390.

Roll. Abr. 219. Lil. 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 judginent, though the delay thus oc17 Car. II. c. 8. where either party dies be. casioned by the 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 terins after the verdict. 9. It has been held, that if the party die after This statute does not apply v jere either party the assises begin, though before the trial of the dies after interlocutory judg nent, 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 & 9W. 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 de. supplied. It provides that in case of either fendant died the night before trial at the sit. party 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 anthority of the arbitralor. i one or more of the plaintiffs or defendants dy. Marsh, 366. 2 B. & A. 394. 2 Chirty 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 panty not abate by reason thereof, but the death before rerdict actually renderer?, though on : being suggested on the record, the action shall day of the sitting of the court, avoids it go proceed. The death of either party in the in. dict as to such party. (Id. 387 $ 6.1 erval of hearing and deciding upon motions

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 (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 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 auy 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 Bubject, 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). (C) Append. No. II. 6 4.

(1) F. N. B. 101. Co. Litt. 133 is 10 Rep. 116.

1 Ventr. 02. (5) Stat. 34 Hen. VIII. c. 8.

(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 com- Geo. III. c. 99. s. 41. costs may be levied mon law remedy, such párty 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-gecester 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. fendant in respect of legacies giren to charition, by any statute after that parliament. 2 ties, or in respect of the immediate rights of lost. 289. 6 T, R. 355.

the crown in cases of intestacy. And see I (12) As to costs in New York, see 2 RS. & S. 394. S. 613, &c.; the state is liable for costs where (14) If executors sue as executors for mo it is the actual plaintiff; when the suit is in ney paid to their use after the lestator's death, name of the People on behalf of a relator, he they shall pay costs. 5 T.R. 234. Tidd, 1014. 's then liable. (ld. 619. 38, 39.)

When executors and administrators are de. (12, 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 exe. lies made to himself, or to his use, shall have cutor shall pay costs, because it is not neces and reco "er his just debts, costs, and damages, sary to bring the action in the character of nas other common persons used to do. By the executor. 7 T. R. 358. So an executoi oi 25 Geo III. c. 35. if the goods and chattels administrator is liable to pay the rosts of a are insufficient, 3 Price, 46. and the lands are nonpros. 6 T. R. 654. See in general, Tidd, sold towards discharging the debt due to the 8 ed. 1014. erown, in such case, all costs and expenses (15) In New-York, executors and adminis ncurrud by the crown, in enforcing the pay. trators, whether plaintiffs or defendants are VOL. II.

(85) Sce Hov, n. (85) at the end of the Vol. B. III.

(w) Cro. Jac. 229.


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