INQUIRY. GENERALLY it is laid down, where damages are to be recovered, a jury must be called 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, but because the court know not what damages the plaintiff hath sustained, therefore the sheriff "is commanded, by the oaths of twelve honest and lawful men, to inquire into the said damages, and return "such inquisition into court." (a) This process is called a writ of inquiry, whicis a judicial writ directed to the sheriff of the county where the action is laid; in the execution of which the sheriff sits as judge, and tries by a jury, subject to nearly the same law and conditions as the trial by jury at nisi prius, what damages the plaintiff hath really sustained, who must assess some damages; the sheriff (on the fourth day after the return of the writ) delivers to the plaintiff's attorney his return, with the inquisition annexed; previous to which, viz. on the return day of the inquiry, there should be a rule for judgment given with the clerk of the rules, as hereafter. In like manner when a demurrer is determined for Demurrer, the plaintiff upon an action wherein damages are recovered, the judgment is also incomplete without the aid of a writ of inquiry, (except actions on bills of exchange and promissory notes, &c.) In debt, the judgment is commonly said to be final, When plainbut when an action is brought on a judgment, the plaintiff a writ of intiff may have may have a writ of inquiry, after judgment by default, quiry in debt, to recover interest by way of damages for the detention of the debt. 7 Term Rep. 446. Blackman v. Fleming. Where there is no necessity for this Writ. A writ of inquiry of damages, is a mere inquest of 3 Wils. 61. office, to inform the conscience of the court: who, if they please, may themselves assess the damages, or direct them (a) If the award of the writ of inquiry on the roll be right, and the teste of the writ wrong, it shall be amended by it. Johnson v. Toulmin, 4 East, 173. Bruce v. 2 Wils. 372. In actions on &c, to be assessed by the master. It does not follow, because a writ of inquiry has been awarded, that the amount of the demand is uncertain. Thelluson v. Fletcher, Doug. 314. In actions upon a bill of exchange, or a promissory note, nothing but the instrument is to be proved before the jury, the sum being thereby ascertained. Though even in cases where there is no necessity for a writ of inquiry, that proceeding is of use, when the plaintiff goes for interest, which the jury assesses in the name of damages. Buller, J. ibid, 316. It is now the practice in both courts, in actions on pronotes, bills, missory notes, and bills of exchange, in actions on covenant for payment of a sum certain, Doug. 316. or on an award, or in other actions wherein the quantum of damages depends on figures, and may be as well ascertained by the master as before a jury, in covenant for mortgage money, 8 Term Rep. 326. Berthen v. Street, for nonpayment of rent. Byron v. Johnson, 8 Term Rep. 410. Also where judgment is obtained in debt upon a judgment. 1 Sid. 442. 3 Leon. 213. See 1 Saund. 106. Holdipp v. Otway, if the plaintiff will assent to it instead of execu ting a writ of inquiry, to apply to the court in term time, or to a judge in vacation for a rule, or summons, to shew cause," why it should not be referred, to see what is due "for principal and interest, and why final judgment "should not be signed for that sum," without executing a writ of inquiry; upon which the court, or judge, will make an absolute rule, or order, unless good cause be shewn to the contrary. 4 Term Rep. 275. Shepherd v. Charter. How the rule is obtained. When to be moved for. The rule is obtained on an affidavit" that the decla"ration in the cause is on a promissory note, or bill of "exchange, bearing date, &c. whereby the defendant "promised to pay, &c." (Here state the fact contained in the declaration shortly; and that interlocutory judgment is signed for want of a plea. Counsel's fee is 10s. 6d. for the rule to shew cause, 11. 1s.; to make the rule absolute.) It seems, in 3 Smith's Rep. 179. that this application. cannot be made on the same day the judgment is signed; it being usual to sign the judgment one day, and move the court at a subsequent day. The court have decided that notice of taxing on a rule to compute though very proper and convenient in practice, is not absolutely necessary, the defendant has notice of the proceeding by the service of the rule nisi to be present if he pleases. Sellers v. Dufton, Hil. Term 1813. tions court But where the defendant had suffered judgment by de- In what acfault in an action of assumpsit on a foreign judgment, will not grant 4 Term Rep. 493. Messin v. Ld. Massarene and ux.; and the rule, in action on a bill of exchange for foreign money, 5 Term Rep. 87. Maunsell v. Ld. Massarene, and in assumpsit for a sum certain, due upon an agreement, Tidd, 504. or in an action on a bottomry bond, ibid. Palin v. Nicholson, E. 38 Geo. 3. or to ascertain the damages sustained by the plaintiff, in an action of debt on a judgment recovered on a bill of exchange, 8 Term Rep. 395. Nelson v. Sheridan, the court will not grant such a rule. But where But where there is a demurrer to one count, on a bill of exchange, there is a deand judgment for the plaintiff, and a plea to other counts, count on a on which issue was joined, the court referred it to the bill of exch. master, to see what was due to the plaintiff on the for- and plea to mer. 7 Term Rep. 473. Duperoy v. Johnson. In such other count. case, however, a nolle prosequi must be first entered on first other counts. 2 Smith's Rep. 46, in (n.) a murrer to one Where the demand is not certain upon the record, When a writ writ of inquiry must issue, as in trespass, Yel. 152. So So of inquiry in trespass on the case, replevin, assault, &c. 3 Lev. 213. must issue, Lut. 211, 213. If one defendant pleads to issue, and the other makes When it need default, a writ of inquiry is awarded on the roll, to prenot issue, vent a discontinuance, but does not issue; for the jury which tries the issue, must assess the damages. 1 Lev. 141. 11 Co. 6. a. Heydon's case. In debt upon a replevin-bond, assigning for breach the In replevin. not making a return of the goods distrained for rent, the plaintiff may after signing judgment against the defendant for not returning the demurrer-book, tax costs and issue execution for the costs, and the amount of the goods distrained as indorsed on the replevin-bond without executing a writ of inquiry. Middleton v. Bryan, 3 Maule and Selw. 155. The want of a writ of inquiry is aided by the statute of jeofails. Str. 878. Malleroy v. Jennings. See 1077. where it was lost, and a new one supplied. this writ. 43 El. c. 2. Where damages are omitted to be given to an overseer When defendefendant, on a verdict for him, a writ of inquiry shall dant may have issue. Str. 1021. . And a suggestion shall be entered on the roll for that purpose, Rep. Temp. Hard. 138. Sayer, 214. which must be moved for. K k To whom the notice is to be given if de fendant has appeared. Of Notice of Inquiry. When the judgment is signed, you may give notice of inquiry, which is to be given in writing, and if the defendant have appeared, and his attorney be known, it should be delivered to such attorney in writing. Say. Rep. 133. Or if an agent be employed in country causes it is now determined that the notice is to be delivered to the agent in town, by whom the subpoenas are issued; and the court declared that should be understood to be the rule in future. Hayes v. Perkins, 3 East, 568. E. 43 Geo. 3. To whom, if defendant has not appeared. How many days notice is to be given, Sunday when is to be ac But if the defendant have not appeared, or his attorney be not known, the notice must be delivered to the defendant himself, or at his last place of abode. Say. Rep. 133. If the venue be laid in London or Middlesex, and the defendant live within forty computed miles from London, there must be eight days notice of executing the inquiry given, exclusive of the day it is given, which notice is also sufficient in country causes. Sty. Pract. Reg. 421. title Notice. See N. on R. Mich. 4 Ann. (c) For the stat. 14 Geo. 2. c. 17. s. 4. which requires ten days notice of trial at the assizes, does not extend to notice of inquiry. But where the venue is laid in London or Middlesex, and the defendant lives above forty computed miles from London, there must be fourteen days notice of inquiry exclusive of the day it is given. N. on R. M. 4 Ann. (c) 8 Mod. 21. And Sunday is to be accounted a day in these notices, unless it be the day on which the notice is given, ib. but counted a day. such notice cannot be served on a Sunday. When a term's cessary. Where no proceedings have been had within four terms, notice is ne- then a term's notice must be given; for where a term's notice of trial is required, there must at the same distance of time be the like notice of executing a writ of inquiry. Peyton v. Bardus, 2 Stra. 1100. (a) When not necessary. But if the proceedings have been staid by injunction (a) And it may be notice of a general 3 Smith's Rep. 101. given at once, without any previous intention to proceed in the cause, Smith v. Paul. for four terms, a term's notice is not necessary. See N. on R. M. 4 Ann. (c) Notice may be given after the essoign day, but be- When the notice may be fore the first day in full term. I have this from the delivered. master. See 1 Stra. 211. dant remove A defendant resided upwards of forty miles from Lon- If the defendon, but pending the action removed his habitation nearer, it was held, that eight days were sufficient. If defendant before and at the time of the commencement of the action, reside in London, eight days notice of executing a writ of inquiry is sufficient, though in the mean time, the defendant has permanently removed above forty miles from London, if defendant did not give plaintiff previous notice of such removal. 12 East, 427. Rochford v. Robertson. pending the suit. hotel. If defendant residing at an hotel in London, be arrested, If defendant is and he continues there till interlocutory judgment signed residing at an and notice of inquiry, eight days are sufficient, although he have a house at Abergavenny. Lloyd v. Hooper, 7 East, 624. (a) There must be the same notice of executing a scire fieri As to the nowrit of inquiry, as a common writ of inquiry. Str. 235, 623. tice of exe cuting a sci. fi. writ of in quiry. If a writ of inquiry be set aside for irregularity, there must be a new writ ingrossed. Hil. 13 Geo. 1. Cole v. When a new Vaughan, MSS. Rep. If the jury mistake in point of law, or give too small damages, the court will, on payment of costs, order a new writ. Str. 425, 1259. But this must be on a special application. writ will be ordered. An inquiry executed on the day of the return is good. If inquiry exe 2 Ld. Raym. 1449. Dyke v. Blackston. cuted on return day. may go on, Plaintiff became bankrupt between the interlocutory The plaintiff and final judgment, and sued out the execution in his own name. Rule to discharge defendant. The court said, although he the bankruptcy of the plaintiff did not abate the suit; and be a bankthat they had in several instances permitted the assignees rupt. to continue a suit commenced by the bankrupt in his name. Rule discharged. Waugh v. Austen, 3 Term Rep. 437. (a) It cannot be executed on a Sunday. 1 Str. 387. Hoyle v. Lord Cornwallis. |