ALL thefe fpecies of judgments are either interlocutory or final. Interlocutory judgments are fuch as are given in the middle of a caufe, upon fome plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the fuit. Of this nature are all judgments for the plaintiff upon pleas in abatement of the fuit or action: in which it is confidered by the court, that the defendant do [397] anfwer over, refpondeat oufter; that is, put in a more fubstantial plea f. It is easy to obferve, that the judgment here given is not final, but merely interlocutory; for there are afterwards farther proceedings to be had, when the defendant hath put in a better answer. BUT the interlocutory judgments, most usually spoken of, are thofe 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 conftitution the caufe was not completely finished, till the nembda or jurors were called in " ad executio"nem decretorum judicii, ad aeftimationem pretii, damni, lucri, "&c." 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 confeffion or cognovit actionem, where he acknowleges the plaintiff's demand to be just: or by non fum informatus, when the defendant's attorney declares he has no inftructions to fay any thing in answer to the plaintiff, or in defence of his client: 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 ftrengthen a creditor's fecurity, for the debtor to execute a warrant of f 2 Saund. 30. 8 Stiernhook, de jure Goth. l. 1. c. 4. Ff3 attorney BOOK III. attorney to fome attorney named by the creditor, empowering him to confefs a judgment by either of the ways just 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 specific fum due: which judgment, when confeffed, is abfolutely complete and binding (3); provided the fame (as is alfo 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 affefs them; unlefs the defendant, to fave charges, will confefs 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 faid plaintiff hath fuftained, (3) The perfon to whom this warrant of attorney is given, has all the benefit of a judgment and execution against the debtor's perfon and property, without being delayed by any intermediate procefs, as in the cafe of a regular fuit. It is frequently given by a person arrested upon condition of his difcharge, and that longer time shall be allowed him for the payment of the debt, or that fome other indulgence fhall be fhewn him. But to prevent perfons in this fituation from being impofed upon, no warrant of attorney to confefs a judgment, given by a perfon arrested upon mefne procefs, fhall be of any force, unless fome attorney be prefent on behalf of the perfon in cuftody, who fhall explain the nature of the warrant, and fubfcribe his name as a witness to it, 1 Cremp. Prac. 316. If a warrant of attorney to confefs a judgment is given unconditionally, or without delay of execution, judgment may be figned and execution may be taken out upon the fame day it is given; and thus a debtor may give one creditor a preference to another, who has obtained judgment after a long litigation. 5 T. R. 235. But if judgment is not entered within a year, the plaintiff must move the court for leave to enter up judgment upon an affidavit, tating, that the warrant has been daly executed, that the debt is unfatisfied, and that the party was living a fhort time before. Cromp. Prac. 316. "therefore 398 "therefore the sheriff is commanded, that by the oaths of "twelve honeft and lawful men he inquire into the faid da"mages, and return fuch inquifition into court." This process is called a writ of inquiry: in the execution of which the fheriff fits as judge, and tries by a jury, subject to nearly the fame law and conditions as the trial by jury at nifi prius, what damages the plaintiff hath really fuftained; and when their verdict is given, which muft affefs fome damages, the sheriff returns the inquifition, which is entered upon the roll in manner of a poftea; and thereupon it is confidered, that the plaintiff do 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 also incomplete, without the aid of a writ of inquiry (4). FINAL judgments are fuch 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 fues for. In 66 (4) It has been faid, by C. J. Wilmot, that "this is an inqueft of office to inform the conscience of the court, who, if they pleafe, may themfeives affefs the damages." 3 Wilj. 62. Hence a practice is now established 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 mafter or prothonotary to afcertain what is due for principal, intereft, and cofts, whofe report fuperfedes the neceffity of a writ of inquiry. 4 T. R. 275. H. Bl. 541. In cafes of difficulty and importance, the court will give leave to have the writ of inquiry executed before a judge at fittings or nifi prius; and then the judge acts only as an aftant to the fheriff. The number of the jurors fworn upon this inqueft 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 fcandalum magnatum, brought by the duke of York (afterwards James the fecond) against Titus Oates, who had called him a traitor; fifteen were fworn upon the jury, who gave all the damages laid in the declaration, viz. 100,000. In that cafe the fheriffs of Middlesex fat in court covered at the table below the judges. 3 St. Tr. 987. which cafe, 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 ; or be taken up, capiatur, till he pays a fine to the king for the public mifdemefnor which is coupled with the private injury, in all cafes of force, of falfhood in denying his own deed k or unjustly claiming property in replevin, or of contempt by disobeying the command of the king's writ or the exprefs prohibition of any ftatute. But now in cafe of trefpafs, ejectment, affault, and falfe imprisonment, it is provided by the statute 5 & 6 W. & [399] M. c. 12. that no writ of capias fhall iffue for this fine, nor any fine be paid; but the plaintiff fhall pay 6s. 8 d. to the proper officer, and be allowed it against the defendant among his other cofts. And therefore upon fuch 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. 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 cafes it is only confidered, that he and his pledges of profecuting be (nominally) amerced for his false claim, pro falfa clamore fuo, and that the defendant may go thereof without a day, eat inde 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. THUS much for judgments; to which cofts are a necessary appendage; it being now as well the maxim of ours as of the civil law, that "victus victori in expenfis condemnandus eft?:" though the common law did not profeffedly allow any, the h 8 Rep. 40. 61. 8 Rep. 59. 11 Rep. 43. 5 Mod. 285. See append. No II. § 4. k F. N. B. 121. Co. Litt. 131. 8 Rep. 60. 1 Roil. Abr. 219. Lill. Entr. 379. C. E. Hil. 4 Ann. ret. 430. 18 Rep. 60. m Saik. 54. Carth. 390. • Appendix, N° III. § 6. amercement 399 amercement of the vanquished party being his only punishment. The first ftatute which gave costs, eo nomine, to the demandant in a real action was the ftatute of Gloucefter 6 Edw. I. c. I. as did the ftatute of Marlbridge 52 Hen. III. c. 6. to the defendant in one particular cafe, relative to wardfhip in chivalry; though in reality cofts were always confidered 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. But, because thofe damages were frequently inadequate to the plaintiff's expenfes, the ftatute of Gloucester orders cofts to be alfo added; and farther directs, that the fame rule fhall hold place in all cafes where the party is to recover damages. And therefore in fuch actions where no damages were then recoverable (as in quare impedit, in which damages were not given till the ftatute of Weftm. 2. 13 Edw.I.) [400] no costs are now allowed'; unless they have been exprefsly given by fome fubfequent ftatute. The ftatute 3 Hen. VII. c. 10. was the first which allowed any cofts on a writ of error. But no costs were allowed the defendant in any fhape, till the ftatutes 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 fame cofts as the plaintiff would have had, in cafe he had recovered. These cofts on both fides are taxed and moderated by the prothonotary, or other proper officer of the court. THE king (and any perfon fuing to his ufe ) fhall neither pay nor receive cofts; for, befides that he is not included under the general words of these ftatutes, as it is his prerogative not to pay them to a fubject, fo it is beneath his dignity to receive them. And it seems reasonable to suppose, that the queen-confort participates of the fame privilege; for, in actions brought by her, fhe was not at the common law obliged to find pledges of profecution, nor could be amerced in cafe there was judgment against her. In two other cafes Append. No II. § 4. 10 Rep. 116. Stat. 24 Hen. VIII. c. 8. t F. N. B. 101. Co. Litt. 133. an |