without affecting those causes of action which are sufficiently set forth, or upon which an action may be maintained.1

But even though entire damages be given upon a general verdict, yet if it appear from the judge's notes, that evidence was given on the good counts only, or that the jury calculated the damages on evidence applicable to the good counts only, the court will amend the verdict, by entering it on those counts.2

The rule of the Court of Common Pleas, allowing the plaintiff, in all cases of a general verdict, to amend, by entering it on one count, was stated in the preceding section; and that rule would necessarily apply, where entire damages were given by the jury.

Where there are several defendants. In actions ex contractu, where there are several defendants, the damages must, of course, be entire, for if the plaintiff do not prove all the defendants jointly liable, he fails in his action altogether.

In actions ex delictu, where the defendants join in pleading, the jury, if they find them jointly guilty, cannot sever the damages; so though the defendants sever in pleading, or one suffer judgment by default, yet if there be but one trespass, and both or all are found guilty of the whole trespass, joint damages must be assessed against all.5

1 Hancock et al. v. Haywood, 3 Term. Rep. 433.

2 Eddowes et al. v. Hopkins et al. 1 Dougl. Rep. 376. Williams v. Breedon, 1 Bos. & Pull. 329. Spicer v. Teasdale, 2 Bos. & Pull. 49. 2 Saund. 171 a. Baker v. Sanderson, 3 Pick. Rep. 348. Cornwall v. Gould, 4 Pick. Rep. 444.

Ante page 259.

* Hill et al. v. Goodchild, 5 Burr. Rep. 2790. Mitchell v. Milbank et al. 6 Term. Rep. 199.

3 Ibid. 1 Saund. 207 a. note 2.

But the jury may find one of them guilty of the trespass, at one time, and the other at another; or one of them guilty of part of the trespass or trover, and the other of another;2 or some guilty of the whole trespass, and the other guilty of part only; in all which cases, they may assess several damages.1

5

If the jury should sever the damages by mistake, the plaintiff may cure the defect, by taking judgment de melioribus damnis, against one, and entering a nolle prosequi as to the other :- or by entering a remittitur as to the lesser damages, he may have judgment for the greater damages, against both. And if the defendants should sever in pleading, the jury who try the first issue, must assess damages against all; there will then be a cesset executio, until the other issues are tried, when the other defendants, if found guilty, shall be contributory to those damages.

6

When the plaintiff has thus obtained judgment against several defendants, he may levy the whole upon any one of them and such defendant, if the action were ex contractu, may, after paying these damages, maintain an action against the other defendants, and oblige them to contribute their respective shares; but if the action were ex delicto, he cannot compel the others to contribute, and is entirely without remedy.7

1 Cro, Car. 54.

2 Heydon's Case, 11 Co. 5.

Cro. Eliz. 860.

4 Proprietors of Kennebeck Purchase v. Boulton et als. 4 Mass. Rep.

419.

5 Sabin v. Long, 1 Wils. Rep. 30. Cro. Car. 192.

CHAPTER XXV.

JUDGMENTS.

Judgments are divided into interlocutory and final. 1. Interlocutory judgments. Interlocutory judgments are such as are given, during the progress of a cause, upon some plea, proceeding, &c. which is only intermediate, and does not finally determine or complete the suit; as in the action of account, that the defendant account; or upon demurrer to a plea in abatement, that the defendant answer further.

2. Final judgments. Final judgments are such as, at once, put an end to the action. They are the award of the court, that the plaintiff recover his damages and costs; or, if for the defendant, that the plaintiff take nothing by his writ, and that the defendant recover his costs, and sometimes also, his debt or damage, as where he has pleaded a set off.

Final judgments are of four kinds.

First. Where the facts, and the law arising upon the action, are admitted by the defendant, as charged by the plaintiff, as in cases of judgments by confession or default.

Second. Where the plaintiff is convinced, that the facts, or the law, or both, are insufficient to support his action, and he therefore abandons his suit, as in cases of nonsuit or retraxit.

Third. Where the facts are confessed by the parties, and the law determined by the court, as in cases of judgment upon demurrer, or on an agreed statement of facts.

Fourth. Where the law is admitted by the parties, and the facts disputed, as in case of judgment upon a verdict.1

SECT. I. JUDGMENT UPON DEFAULT.

When the defendant fails to appear, or having appeared, neglects to take the requisite steps, on his part, in the proceedings of a case, the only mode, in our practice, of procuring a judgment against him, is by causing him to be defaulted. If he do not appear, he is defaulted of course, at the calling of the docket; but if, after having appeared, he do not regularly proceed in the cause, he may be defaulted, on motion of the plaintiff.2

The mode of defaulting is simply by causing the crier of the court, to call upon the defendant, in open court, to come in and answer to the plaintiff. If he do not appear or answer, the clerk minutes the default on the docket.

3

When a defendant, upon whom a writ has been regularly served, is defaulted, judgment will be entered for the plaintiff of course. And this judgment, in our practice, is final, and not interlocutory in its nature, as in England. It is so considered there, be

13 Black. Comm. 396.

2 Note. The various modes of confessing judgment, in use in the English practice, as by cognovit, — warrant of attorney, — non sum informatus, and nil dicit, are not known with us. They are all merged in the simple mode of defaulting, stated above.

Recognizance. It should be observed, however, that there is a mode of confessing a debt, by recognizance before a justice of the peace, prescribed by Stat. 1782. ch. 21. the proceedings in which are regulated, at length, in that statute. But this form of proceeding is but little used.

cause a final judgment is not rendered, until the damages have been assessed. But with us, upon default, judgment is rendered generally for the plaintiff, either on some day in the term, upon motion, or of course, on the last day, and the subsequent assessment of the damages, which, we have seen,' may be made, either by the court, or on motion of the plaintiff, by a jury, relates back to, and forms a part of, the original judgment.

Assessment of damages. As to the assessment of damages upon default, it is not necessary, that it should appear of record, by whom it was made; but unless the contrary appear, it will be presumed to have been made by the court. And in practice here, in most cases, the plaintiff himself assesses the damages. If his writ specify his claim, as by describing a promissory note, or by containing an account annexed, or otherwise, he takes his judgment and execution, as a matter of course, for the amount specified, upon filing with the clerk, the note, account, or document declared on. If his declaration be general, he files a specification of his claim, with the clerk, who will issue execution, as on a judgment for that amount. These proceedings are matters of course; for though a defendant after being defaulted, may be heard as to the assessment of damages, before judgment is entered, yet it would seem, that after judgment, he can only resort to his writ of review, in case there be fraud or error in the assessment of the damages.

3

3 Note. In case the court should direct the damages, after a default, to be assessed by a jury, — as they may do,—we have no practice like the English, as to summoning a special jury, by the sheriff, &c. With