Inquiry,

which is a fpecies of judgment by default. If these, or any of them, happen in actions where the fpecific thing fued for is recovered, as in actions of debt for a fum certain, the judgment is abfolutely complete; and therefore it is very ufual, in order to strengthen a creditor's fecurity, for the debtor to execute a warrant of attorney to fome nominee of the creditor, empowering him to confeís a judgment by either of the ways jutt now mentioned (by nihil dicit, cognovit actionem, or non fum informatus), in an action of debt to be brought by the creditor against the debtor for the fpecific fum due: which judgment, when confefied, is abfolutely complete and binding; provided the fame (as is alfo required in all other judg ments) be regularly docqueted, that is, abstracted and entered in a book, according to the directions of the statute of 4 and 5 W. & M. c. 20. But where damages are to be recovered," a jury must be called in to affefs them; unless the defendant, to fave charges, will confefs the whole damages laid in the declaration; otherwife the entry of the judgment is, "that the plaintiff ought to recover his damages (indefinitely); but because the court know not what "damages the faid plaintiff hath fuftained, therefore "the Sheriff is commanded, that by the oaths of twelve "boneft and lawful men, he inquire into the faid da"mages, and return fuch inquifition into court." This process is called a writ of inqu ry; in the execution of which the fheriff fits as judge, and tries by a jury, fubject to nearly the fame law and conditions as the trial by jury at nifi prius, what damages the plaintiff hath nearly fuftained; and when their verdict is given, which muft affefs fome damages, the sheriff returns the inquifition, which is entered upon the roll in the manner of a poftea; " and thereupon it is "confidered, that the plaintiff recover the exact fum of "the damages fo affeffed." In like manner, when a demurrer is determined for the plaintiff, upon an action wherein damages are recovered, the judgment is alfo incomplete, without the aid of a writ of inquiry.

66

Final judgments are fuch as at once put an end to Final judgments, the action, by declaring that the plaintiff has either the definition of entitled himself, or has not, to recover the remedy he fues for. In which cafe, if the judgment be for the plaintiff," it is alfo confidered that the defendant "be either amerced, for his wilful delay of juftice, in "not immediately obeying the king's writ, by rendering "the plaintiff his due," 5 Rep. 49. " or be taken up, to pay a fine to the king, in cafe of any forcible injury." Though now, by Stat. 5 and 6 W. & M. c. 12. "no writ of capias fhall iffue for this fine, but the "plaintiff shall pay 6s. 8d. and be allowed it against "the defendant among his other cofts." And therefore in judgments in this court, they enter that the fine is remitted, and in the king's bench they take no notice of any fine, or capias at all, Salk. 54. Carth. 390.; but if judgment be for the defendant, "then it is confidered, that the plaintiff, and his "pledges of profecuting, be (nominally) amerced for "bis falje fuit; and that the defendant may go "without a day, eat fine die; that is, without any "farther continuance or adjournment; the king's "writ, commanding his attendance, being now "fully fatisfied, and his innocence publicly "cleared."

ment.

After judgment is entered, execution will imme. Execution fol diately follow, unless the party condemned thinks lows the judghimself unjustly aggrieved by any of the proceedings; and then he has his remedy to reverfe them by feveral writs in the nature of appeals, viz. audita quærela, or writ of error. That of attaint, being (fince the practice of granting new trials) fufpended, and there has not been an inftance of one in our books for many years. Vide Cro. Eliz. 309. Cro. Fac. 90.

An audita quærela is where the defendant, against Audita quærela whom judgment is recovered, and who is therefore almoft out of practice. in danger of execution, or perhaps actually in execution, may be relieved upon good matter of difcharge, which has happened fince the judgment; as if the plaintiff hath given him a general releafe; F 4

or,

If judgment not arrefled, or no new trial, execution follows.

or, if the defendant hath paid the debt to the plaintiff, without entering fatisfaction on the record. In thefe and the like cafes, wherein the defendant hath good matter to plead, but hath had no opportunity of pleading it, an audita quærela lies, in the nature of a bill in equity, to be relieved against the oppreffion of the plaintiff. It is a writ directed to the court, ftating that the complaint of the defendant hath been heard, audita quarela defendentis, and then fetting out the matter of 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 alfo lies for bail, when judgment is obtained against them by faire facias, to answer the debt of their principal; and it happens afterwards that the original judgment against their principal is reverfed: for here the bail, after judgment had against them, have no opportunity to plead this fpecial matter, and therefore they shall have redress by audita quarela, which is a writ of a moft remedial nature, and feems to have been invented, left in any cafe there should be an oppreffive defect of juftice, where a party has a good defence, but by the ordinary forms of law had no opportunity to make it. 1 Roll. Abridg. 308. Finch 88. F. N. B. 102. But the indulgence now fhewn by the courts, in granting a fummary relief upon motion, in cafes of fuch evident oppreffion, has almoft rendered ufelefs the writ of audita quærela, and driven it quite out of practice. L. Raym. 439.

But if the judgment cannot be arrested, or the party obtain a new trial, execution will follow; unlefs the party condemned thinks himself unjustly aggrieved by any of the proceedings; and then he has his remedy to reverfe the fame, by bringing a writ of error: but he that brings it muft find fubftantial bail to profecute the fame in many cases, and muft bring it in time fo as to prevent the plaintiff's proceeding, which must be when he is entitled to fign his judgment. Stat. 3 Fac. 1. c. 8. 13 Car. 2. c. 2. 16 and 17 Car. 2. c. 8.

The

7

action.

The execution of the judgment is adapted ac- Execution is cording to the nature of the action; therefore if the adapted to the plaintiff recover in a real or mixed action, wherein the feifin of the land is awarded to him, the writ is an habere facias feifinam, or an habere facias pof feffionem. Finch 470. Co. Lit. 34.

different actions.

Executions in actions where money only is re- Executions in covered, as a debt or damages (and not any fpecific chattel), are of five forts, against the body of the defendant, called a cațias ad fatisfaciendum, or against his goods and chattels, called a fieri facias; or against his goods and profits of his lands, called a levari facias; or agaiaft the goods and the poffeffion of his lands, called an elegit; or against all three, his body, lands, and goods, called an extent, or extendi facias; but only one of these writs can be iffued at one and the fame time. 2 Inft. 143. Co. Lit. 290. L. Raym. 346.

when to be

entered.

When the plaintiff's demand is fatisfied, either Satisfaction by the voluntary payment of the defendant, or by compulsory procefs, or otherwife, fatisfaction ought to be entered on the record, that the defendant may not be liable hereafter to be haraffed a fécond time on the fame account. 2 Lill. Abr. 495.

The king formerly heard

caufes, but de

Of the Judges and Officers of the Court.

T is probable, and almost certain, that in very early times, before our conftitution arrived at legated the power its full perfection, our kings in perfon often heard to the judges for and determined causes between party and party; but many ages back. at prefent, by the long and uniform ufage of many

ages, our kings have delegated their whole judicial power to the judges of the feveral courts, which are the grand depofitory of the fundamental laws of the kingdom, and have gained a known and stated jurifdiction, regulated by certain and established rules, which the crown itself cannot alter but by act of parliament. 2 Haw. Pl. of the Cr. 2.

In this distinct and separate existence of the judicial power, in a peculiar body of men, nominated, indeed, but not removable at pleafure by the crown, confifts one main prefervative of the public liberty, which cannot fubfift long in any ftate, unless the adminiftration of common juftice be, in fome degree, feparated both from the legislative, and alfo from the executive power: were it joined with the legiflative, the life, liberty, and property of the fubject, would be in the hands of arbitrary judges, whofe decifions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legiflators may depart from, yet judges are bound to obferve. Were it joined with the executive, this union might foon be an overbalance for the legislative: for which reafon, by the ftatute of 16 Car. I. c. 10. which abolished the court of ftar-chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council, who, as then was evident from recent inftances, might foon be inclined to pronounce that for law, which was

moft