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prescribing for a right of common for his cattle, and does not plead that his cattle were levant and couchant on the land ; though either of these defects might be good cause to demur to the declaration or plea, yet if the adverse party omit to take advantage of such omission in due time, but takes issue and has a verdict against him, these exceptions can not after verdict be moved in arrest of judgment.
Cured by Verdict. For the verdict ascertains these 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 the judge, would find a verdict for either party, unless he had proved those circumstances, without which his general allegation is defective.
Defects must be Material. 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.
When not Cured by Verdict. But if the thing omitted be essential to the action or defence, as if the plaintiff does not merely state his title in a defective manner, but sets forth a title that is 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.
Defect in the Pleadings. If by the inadvertence of the pleader, 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 should be given, the court will after verdict award a repleader, unless it appear from the whole record, that nothing material can possibly be pleaded in any shape whatever, and then a repleader will be fruitless. And whenever a repleader is granted, the pleadings must begin de novo at that stage, whether it be the plea, replication or rejoinder, wherein there appears to be a deviation from the regular course.
Judgment Entered. 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 of record.
Kinds of Judgment. Judgments are the sentence of the law, pronounced by the court upon the matter contained in the record. They are of four kinds :
1. Where the facts are confessed by the parties, and the law determined by the court, as in the case of judgment upon demurrer.
2. Where the law is admitted by the parties, and the facts disputed, as in the case of a judgment on a verdict.
3. Where both the fact and the law arising thereon are admitted by the defendant, which is the case of judgments by confession or default.
4. Where the plaintif is convinced, that either the fact or law, or both, are insufficient to support his action, and therefore abandons or withdraws his prosecution, which is the case in judgments on a non-suit or retraxit.
Natural Conclusion. The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but that of the law. It is the conclusion that regularly follows from the premises of law and fact, which stand thus: against him who has ridden over my corn, I may recover damages by law, but A has done so, therefore I shall recover damages against A.
Logical Proposition. If the major proposition be denied, this is a demurrer in law; if the minor, then it is an issue of fact, but if both be confessed or determined to be right, the conclusion or judgment of the court must follow, which judgment depends therefore not on the arbitrary caprice of the judge, but on the settled and invariable principles of justice.
Style or Wording of the Judgment. The judgment, in short, is the remedy prescribed by law for the redress of injuries, and the suit or action is the vehicle or means of administering it. What that remedy may be, is indeed the result of deliberation, and therefore the style of the judgment is, not that it is decreed or resolved by the court, for then the judgment might appear its own, but “it is considered,” 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. All these species of judgments are either interlocutory
Interlocutory Judgments. These are such as are given in the middle of a cause, upon some plea, proceeding or default; which judgment 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 the court orders the defendant to answer over, respondeat ouster, that is put in a more substantial plea. When he shall have done so, further proceedings may be had.
Damages not Ascertained. The more usual interlocutory judgments 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 can only be done by a jury. This can only happen, when the plaintiff recovers; but when judgment is given for the defendant, it is always complete, as well as final.
Where an Interlocutory Judgment Happens. This happens in the first place, where the defendant allows judgment to go against him by default, or nihil dicit, as if he files no plea to the plaintiff's declaration; also by confession, or cognovit actionem, where he acknowledges the plaintiff's demand to be just; or by non sum in formatus, 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. If these or any of them happen in actions, where the specific thing sued for is recovered, as in actions for a debt for a sum certain, the judgment is absolutely complete.
Warrant of Attorney. Judgments Confessed. Therefore it is 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 nihil dicit, cognovit actionem or non sum informatus in an action of debt, to be brought by the creditor against the debtor for the specific sum due, which judgment, when confessed, is complete and binding, providing it be docketed, that is entered in a book, according to statute.
Writ of Inquiry. But 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 said plaintiff hath 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 the 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, upon an aetion, wherein damages are recovered, the judgment is also incomplete without a writ of inquiry.
Final Judgments. These put an end to the action, by declaring, that the plaintiff himself is entitled or is not entitled to recover the remedy for which he sues. In which case, if the judgment be for the plaintiff, it is also considered, 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 misdemeanor which is coupled with the private injury, in all cases of force, of falsehood in denying his own deed, or unjustly claiming property in replevin, or of contempt, by disobeying the command of the king's writ or the express prohibition of any statute.
Fines Imposed upon Defendant. But now in cases of trespass, ejectment, assault and false imprisonment, the statute provides, that no writ of capias shall issue for this fine, nor any fine be paid, but the plaintiff shall pay the fee to the proper officer, and be allowed it against the defendant with 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.
Fines Imposed upon Plaintiff. But if judgment be for the defendant, then in case of fraud and deceit to the court, or in malicious 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, and that the defendant may go thereof without a day, that is without further continuance or adjournment; the king's writ, commanding his attendance, being now fully satisfied, and his innocence shown. COSTS.
Under the Common Law. Costs are a necessary appendage to judgments. The common law did not professedly allow costs, the amercement of the vanquished party being his only punishment, though in reality costs were always considered and included in the quantum of damages, in actions where damages were given, and even now, costs for the plaintiff are always entered on the roll, as increase of damages by the court. ente
Allowed by Statute. But because these damages were frequently inadequate to the plaintiff's expenses, the statute ordered costs to be added, and further directed, that the same rule should hold in all cases, where the party is to recover damages. And therefore in such actions, where no damages were then recoverable, as at one time in quare impedit, no costs are allowed, unless expressly given by statute. The costs on both sides are taxed by the prothonotary.
Exemption from Costs. The king, and any one suing in his name, shall neither pay nor receive costs. As it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them. In two other cases an exemption lies from paying costs. Executors and administrators, while suing in the right of the deceased, shall pay none, for the statute does not give costs to defendants, unless where the action supposes the contract to be made with, or the wrong to be done to the plaintiff himself.
Poverty an Excuse. And paupers, who will swear they are not worth five pounds, are by statute to have original writs and subpoenas gratis, and counsel assigned them without fee, and are excused from paying costs, when plaintiffs, but shall suffer other punishment at the discretion of the judges. An old law, which bas fallen into entire disuse, gave paupers the option, if nonsuited, to pay the costs, or be whipped. It seems, however, that a pauper may recover his actual costs, though if defeated, he pay none, for the counsel and clerks are bound to give their labor to him, but not to his antagonist.
No Costs Allowed, where Small Damages. To prevent trifling and malicious actions for words, for assault and battery, and for trespass, it is enacted, that where the jury award less damages than forty shillings, the plaintiff shall be allowed no
Not the case at present in civil actions.-Cooley.
2 Altered by statute, and now they are liable, unless the judge orders otherwise.-Cooley.