SECT. II. JUDGMENT UPON NONSUIT.

The only mode in our practice, in which judgment can be obtained against a plaintiff, for costs, in case he fails to prosecute his action, is by causing him to be nonsuited.1 If he do not appear, that is, if he do not enter his action, the defendant, on complaint to the court, may enter it, and have the plaintiff nonsuited; but if having entered, he fail, in any way, to prosecute it, the defendant may procure a nonsuit on motion.

And the plaintiff may voluntarily become nonsuit, at any time before the jury deliver their verdict, unless by so doing, injustice be done to the defendant.1

The mode of nonsuiting, is by the crier, in open court, calling upon the plaintiff, to come in and prosecute his suit against the defendant. If he do not, he is marked on the docket by the clerk, as nonsuited.

It should be observed, however, that a nonsuit

us, the court would commit the matter, to one of the regular juries, in attendance upon the court, by whom it would be tried, in the same manner as common cases, with the exception, that the trial and verdict would be confined merely to the amount of damages.

1

1 The various modes, by which a plaintiff may abandon his action, in the English practice, as by discontinuance, nolle prosequi,- stet processus, — retraxit,— and cassetur billa vel breve, are not known here. They are merged in the nonsuit, stated above.

It should be remarked, that although in our practice, discontinuance, and nolle prosequi, are thus merged in nonsuit, when they go to the whole of the plaintiff's action, yet that a plaintiff may discontinue as to a part of his cause of action, and enter a nolle prosequi, as to some of the defendants, without being nonsuited.

2 Vide ante page 202.

33 Black. Comm. 376.

↑ Haskell v. Whitney, 12 Mass. Rep. 47.

is not regarded as a confession by the plaintiff, that he has no cause of action; for the judgment for the defendant is no bar to a second action for the same

cause.

When the plaintiff has thus been nonsuited, the defendant may take judgment against him for costs, on any day of the term, upon motion, or he will have judgment therefor, on the last day of the term, as a matter of course. Nothing then remains but to tax his costs, which will be considered hereafter.'

SECT. III. JUDGMENT UPON DEMURRER.

1. For plaintiff. Judgment for the plaintiff, on demurrer to a plea in abatement, or to a replication to a plea in abatement, is merely respondeas ouster. In this case, there are no damages to be assessed, or costs taxed, but the defendant must plead anew; and the case is then tried upon such new pleadings.

In all other cases of demurrer, though the judgment, if for the plaintiff, is, strictly speaking, interlocutory merely, until the damages have been assessed, yet, in our practice, it is governed by the same rules, as in the case of default, that is, judgment is rendered generally for the plaintiff, that he recover his debt or damages; and the subsequent assessment of these damages, however made, refers back to, and becomes part of the original judgment.2

And the assessment of the damages is made in the same manner as has been stated, in the case of default.

1 Vide supra Chapter on Costs.

2 Vide ante Sect. I. of this Chapter.

3 Ibid.

3

2. For defendant. Judgment for the defendant, in all cases upon demurrer, is final, and that he recover his costs.

If in the same case, there should be issues in law upon demurrer, and also issues in fact to be tried by the jury, though the former should be first tried, according to the rules that have been stated,' yet final judgment will not be rendered in the case until the issues in fact have been disposed of. If the demurrer be determined in favor of the plaintiff, he may either strike out the counts upon which there are issues in fact, and take judgment upon the others, as in case of demurrer, or he may go to trial upon those counts, and the jury, if they find a verdict in his favor, will assess damages upon the whole declaration. But if the demurrer be determined in favor of the defendant, then the issues in fact must, of course, be tried, before the plaintiff can have any judgment: and if the verdict be against him, or he become nonsuit, before going to trial, the defendant will have judgment, for his costs.

On agreed statement of facts. Where the facts are agreed, it is usually a part of the agreement, that the plaintiff shall be nonsuited, or the defendant defaulted, according to the opinion of the court. If, therefore, the judgment be for the plaintiff, the proceedings, as to the judgment and the assessment of damages, unless they are agreed, as they may be, -are the same as in case of default: if for the defendant, the same as in case of nonsuit.

1 Vide ante page 220.

2 Fleming v. Langton, 1 Strange. 532. Duperoy v. Johnson, 7 Term. Rep. 473.

SECT. IV. JUDGMENT UPON VERDICT.

If the verdict of the jury be in favor of the plaintiff, the judgment is for the amount of the verdict and costs; but if the jury find for the defendant, the judgment is for costs only, except in some cases of

set-off.

Though the judgment for the plaintiff is generally for the amount of the verdict only, yet if the court, for any cause, delay entering up the judgment, when the plaintiff is not in fault, they will add interest to the amount of the verdict from the time it was given, to that of rendering the judgment, and make such further order, as that neither party shall suffer by the delay.'

There may be two distinct judgments in the same action as where the plaintiff appeals from the Court of Common Pleas, and recovers less than one hundred dollars, he is entitled to his judgment for the amount of damages given, and the defendant has another judgment for costs.2

Form of judgment. In all the preceding cases, the judgment, if for the plaintiff, follows the nature of the action. In actions of assumpsit, covenant, trespass, case, and the like, in which damages only are demanded, the judgment for the plaintiff is, that he recover his damages, as found by the verdict, or, in case of demurrer or default, to be duly assessed, together with his costs, if any be allowable:- in actions of debt, that he recover his debt, and damages, if

1 Perry v. Wilson, 7 Mass. Rep. 393. Brown v. Penobscot Bank, 8 Mass. Rep. 445.

2 Vide supra Chapter XXVII.

any, and costs:-in real actions, that he recover the premises demanded in his writ, and costs. In all these cases, if the defendant prevail, the judgment is, that he recover his costs merely, except in those cases, where he has filed and proved in set-off, a demand larger than that found due to the plaintiff, in which case, the defendant is entitled to judgment for the excess, as well as for his costs.1

In replevin, the judgment for the plaintiff is, for his damages, which are usually nominal, as the goods demanded were delivered to him on the writ, and for his costs; for the defendant, the judgment is, for a return of the goods replevied, together with six per cent. on the amount of the replevin bond given by the plaintiff, as damages,2 and also for his costs.

On the acceptance of a report of referees, the judgment of the court must conform to their award.3

Day of entering up judgment. A judgment may be entered on any day of the term, upon the motion of either party; in which case, the time of entering it must be minuted by the clerk upon the docket.1

But if no special award of judgment have been made upon motion, during the term, then, upon the last day of the term, judgment is rendered, as of that day, for the prevailing party, in all cases that have in any way, been finally determined, as a matter of

course.5

1 Stat. 1784. ch. 28. s. 12.

3

2 Stat. 1789. ch. 26. s. 4. Bruce v. Learned, 4 Mass. Rep. 614.

Nelson v. Andrews, 2 Mass. Rep. 164. Commonwealth v. The Pejepscut Proprietors, 7 Mass. Rep. 399.

* Herring et al. v. Polley, 8 Mass. Rep. 113. Reg. Gen. S. J. C. 32. Appendix A.

5

Reg. Gen. S. J. C. 32. Appendix A. 35th Rule C. C. Pleas, and fourteenth rule referred to therein. Appendix B.