for a review of the former verdict. They must be satisfied that there are strong probable grounds to suppose that the merits have not been fairly and fully discussed, and that the decision is not agreeable to the justice and truth of the case. A new trial is not granted where the value is too inconsiderable to merit a second examination. It is not granted upon nice and formal objections, which do not go to the real merits. It is not granted in cases of strict right or summum jus, where the rigorous exaction of extreme legal justice is hardly reconcilable to conscience. Nor is it granted where the scales of evidence hang nearly equal; that which leans against the former verdict ought always very strongly to preponderate.

In granting such further trial (which is matter of sound discretion) the court has also an opportunity, which it seldom fails to improve, of supplying those defects in this mode of trial which were stated in the preceding chapter; by laying the party applying under all such equitable terms as his antagonist shall desire and mutually offer to comply with: such as the discovery of some facts upon oath; the admission of others not intended to be litigated; the production of deeds, books, and papers; the examination of witnesses, infirm or going beyond sea; and the like. And the delay and expense of this proceeding are so small and trifling, that it seldom can be moved for to gain time or gratify humour. The motion must be made within the first four days of the next succeeding term, within which term it is usually heard and decided.

Arrest of Judgment.

2. Arrests of judgment arise from intrinsic causes, appearing upon the face of the record. Of this kind are, first, where the declaration varies totally from the original writ; as where the writ is in debt or detinue, and the plaintiff declares in an action. on the case for an assumpsit; for, the original writ out of chancery being the foundation and warrant of the whole proceedings in the common pleas, if the declaration does not pursue the nature of the writ, the court's authority totally fails. Also, secondly, where the verdict materially differs from the pleadings and issue thereon; as if, in an action for words, it is laid in the declaration that the defendant said, "the plaintiff is a bankrupt;" and the verdict finds specially that he said "the plaintiff will be a bankrupt." Or, thirdly, if the case laid in the declaration is not sufficient in point of law to found an action upon. And this is an invariable rule with regard to arrests of judgment upon matter of law, "that whatever is alleged in arrest of judgment must be such matter as would upon demurrer have been sufficient to over

converso,

turn the action or plea." But the rule will not hold "that everything that may be alleged as cause of demurrer will be good in arrest of judgment;" for if a declaration or plea omits to state some particular circumstance without proving of which at the trial it is impossible to support the action or defense, this omission shall be aided by a verdict. For the verdict ascertains those facts, which before from the inaccuracy of the pleadings might be dubious; since the law will not suppose, that a jury, under the inspection of a judge, would find a verdict for the plaintiff or defendant, unless he had proved those circumstances, without which his general allegation is defective. Exceptions therefore that 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 proceedings. But if the thing omitted be essential to the action or defense, as if the plaintiff does not merely state his title in a defective manner, but sets forth a title that is totally defective in itself, or if to an action of debt the defendant pleads not guilty instead of nil debet, 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, 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; or if, in an action of debt on bond condition to pay money on or before a certain day, the defendant pleads payment on the day (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. 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, etc., wherein there appears to have been the first defect or deviation from the regular course.

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.

Judgment.

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 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 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. 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.

Interlocutory and Final Judgment.

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 the court, that the defendant do answer over, respondeat ouster; that is, put in a more substantial plea.

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. 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 instructions to say anything in answer to the plaintiff, or in defence of his client; which is a species of judgment by default. these, or any of them, happen in actions where the specific thing

If

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 a 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 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 has 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 has 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 and upon action wherein damages are recovered, the judgment is also incomplete, without the aid of a writ of inquiry.

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.

Costs.

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:" though the common law did not professedly allow any, the amercement of the vanquished party being his only punishment. These costs, on both sides, are taxed and moderated by the prothonotary, or other proper officer of the court.

Execution.

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. 402-412.

Writs of Attaint and Deceit.

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: which lieth to inquire whether a jury of twelve men gave a false verdict; that so the judgment following thereupon may be reversed.

II. The writ of deceit, or action on the case in nature of it, may be brought in the court of common pleas, to reverse a judgment there had by fraud or collusion in a real action, whereby lands and tenements have been recovered to the prejudice of him that hath right. But of this enough hath been observed in a former chapter.

Audita Querela.

III. An audita querela is where a defendant, against whom judgment is recovered, and who is therefore in danger of execution, or perhaps actually in execution, may be relieved upon good matter of discharge which has happened since the judgment: as if the plaintiff hath given him a general release; or if the defendant hath paid the debt to the plaintiff without procuring satisfaction to be entered on the record. In these and the like cases, wherein the defendant hath good matter to plead, but hath had no opportunity of pleading it (either at the beginning of the suit, or puis darrein continuance, which, as was shown in a former chapter, must always be before judgment), an audita querela lies, in the nature of a bill in equity, to be relieved against the oppression of the plaintiff. It is a writ directed to the court stating that the complaint of the defendant hath been heard, audita querela defendantis, and then setting out the matter of the complaint, it at length enjoins the court to call the parties before them, and, having heard their allegations and proofs, to cause justice to be done between them. It also lies for bail, when judgment is obtained against them by scire facias to answer the debt of their principal, and it happens afterwards that the original judgment against their principal is reversed: for here the bail, after judgment had against