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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 [ 397 1 answer over, refpondeat oufter; that is, put in a more substantial pleaf. 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 defende ant hath 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 execution nem decretorum judicii, ad aestimationem pretii, damni, lucri, « 6c6.” 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 acknowleges the plaintiff's demand to be juft: or by non fum informatus, when the defendant's attorney de. clares he has no instructions 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 f 2 Saurd, 30,

& Stiernhook, de juro Gusb. l. 1. c.4. Tf3

attorney

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 actionein, or non fum informatus ) in an action of debt to be brought by the creditor against the · debtor for the specific fum due : which judgment, when con

fefred, is absolutely complete and binding (3); provided the fame (as is also required in all other judgments) be regularly

docquetted, that is, abstracted and entered in a book, accord[ 398 ] ing to the directions of statute 4 & 5 W. & 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 re« cover his damages, (indefinitely)*but because the court “ know not what damages the said plaintiff hath sustained,

(3) The person to whom this warrant of attorney is given, has all the benefit of a judgment and execution against the debtor's person and property, without being delayed by any intermediate process, as in the case of a regular suit. It is frequently given by 2 person arrested upon condition of his discharge, and that longer time shall be allowed him for the payment of the debt, or that some other indulgence shall be thewn him. But to prevent persons in this situation from being imposed upon, no warrant of attorney to confess a judgment, given by a person arrested upon merne process, thall be of any force, unless some attorney be present on behalf of the person in custody, who fhall explain the nature of the warrant, and subscribe his name as a witness to it, i Cromp. Prac. 316.

If a warrant of attorney to confess a judgment is given uncon. ditionally, or without delay of execution, judgment may be figned and execution may be taken out upon the same day it is given; and thus a debror may give one creditor a preference to another, who has obtained judgment after a long litigation. 57. R. 23;.

But if judgment is not entered within a year, the plaintiff must move the court for leave to enter up judgment upon an affidavit, dating, that the warrant has been daly executed, that the debt is unsatisfied, and that the party was living a short time before, i Crom. Prac. 316.

" therefore

« therefore the seriff is commanded, that by the oaths of “ twelve honest and lawful men he inquire into the said da“ mages, and return such inquisition into court.” This process is called a writ of inquiry: in the execution of which the sheriff fits as judge, and tries by a jury, subject to nearly the same law and conditions as the trial by jury at nifi prius, what damages the plaintiff hath really sustained ; and when their verdict is given, which must afless fome damages, the Meriff returns the inquisition, which is entered upon the roll in manner of a posten; and thereupon it is considered, that the plaintiff do recover the exact sum of the damages fo aflefied. In like manner, when a denurrer 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 (4).

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

(4) It has been said, by C. J. Wilmot, that “ this is an in. “ quest of office to inform the conscience of the court, who, if they “ please, may themselves assess the damages." 3 Wilj. 62. Hence a practice is now eitablished 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. H. Bl. 541. In cases of difficulty and importance, the court will give leave to have the writ of inquiry executed before a judge at fittings or nisi prius; and then the judge acts only as an allistant 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.100,000 . In that case the sheriffs of Middlesex fat in court covered at the table be. low the judges. 3 St, Tr.987. . Ff 4

which which case, if the judgment be for the plaintiff, it is also confidered 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 b; or be taken up, capiatur, till he pays a fine to the king for the public misdemesnor which is coupled with the private injury, in all cases of force', of falíhood in denying his own deed k or unjustly claiming property in replevin, or of contempt by disobeying the com: mand of the king's writ or the express prohibition of any statute!. But now in case of trespass, ejectment, afsault, and

false imprisonment, it is provided by the statute 5 & 6 W. & [ 399 ) M. c. 12. that no writ of capias shall issue for this fine, nor

any fine be paid; but the plaintiff shall pay 6s. 8 d. 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 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 the court, or malicious or vexatious suits, the plaintiff may also be fined "; but in most cases it is only considered, that he and his pledges of prosecuting be (nominally) amerced for his false claim, pro falsa clamore suo, and that the defendant may go thereof without a day, eat inde fine die, that is, without any farther continų. ance or adjournment; the king's writ, commanding his attendance, being now fully satisfied, and his innocence publicly cleared on .

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 “vistus victori in expenfis condemnandus e/?P:"" though the common law did not professedly allow any, the

h 8 Rep. 40. 61.

i 8 Rep. 59. 11 Rep. 43. 5 Mod. 285. See append. No 11. $ 4.

k F. N. B. 121. Co. Litt. 131. 8 Rep. 60. I Roil, Abr. 219. Lille Intr.379. C. E. Mil. 4 Ang. rot. 430.

18 Rep. 60.
ni Salk. 54. Carth. 390.
1 8 Rep. 59, 6C.
o Appendix, N° III. $ 6.
P Cod. 3. 1, 13.

amercenicnt

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. I. as did the statute of Marlbridge 52 Hen. III. c. 6. to the defendant in one particular cafe, relative to wardship in chivalry; though in reality costs were always confi. dered and included in the quantum of damages, in fuch 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 4. 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 rulc 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.) [ 400 ] no costs are now allowed'; 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. and 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,

The king (and any person suing to his uses) 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-confort participates of the same privilege ; for, in actions brought by her, she was not at the common law obliged to find pledges of profecution, nor could be amerced in case there was judgment against her'. In two other cases 9 Append. NO II. $4.

• Stat. 24 Hen. VIII. c. 8. Iso Rep. 116.

i F. N. B. 101. Ço. Litt. 133.

an

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