CHAPTER TWENTY-SECOND. OF JUDGMENT AND NEW TRIALS. JUDGMENT UDGMENTS are either interlocutory or final. Interlocutory judgments, are given in fome middle ftage of the caufe, and final judgments, are rendered in the termination of the fuit. Judgment is the fentence of the law, awarded and pronounced by the judges, after due enquiry, deliberation, and confideration, according to the eflablished rules of law and the invariable principles of justice. Judgments, may be rendered upon demurrer, verdict, default, Confeffion, nihil dicit, and nonfuit. 1. In demurrers, the facts are confeffed and the law controverted, and the court on determining the principle of the law muft render judgment in his favour, who has the law on his fide. 2. The verdict of the jury, afcertains the facts in dispute, and the court must render judgment for him in whofe favour the facts are found. 3. When the defendant makes default of appearance, he acknowledges the law as well as the facts, to be against him, and judgment must be rendered by the court accordingly. 4. In cafes of debt, and in fuch cafes only, the party may not only confefs a judgment against himself before an affistant or justice of the peace, but he may do the fame in court. 5. Where the defendant appears, and refufes to plead, or to make any answer, judgment may be rendered against him upon nihil dicit, because he fays nothing. 6. When a plaintiff withdraws his action, or becomes nonfuit, judgment may be rendered against him in favour of the defendant for his coft, which is no bar to a future action. It is painful to obferve the great number of judgments rendered by juftices of the peace, which are reverfed by the fuperior court, merely on account of the informality, and irregularity of the entry and record of the judgments; when a very little legal fkill is fufficient to avoid fuch errors, and prevent much needless litigation and expenfe. I fhall therefore lay down a few general rules, which are calculated for courts of that defeription, and which would otherwife be unneceffary. Juftices of the peace ought to require the pleadings to be regularly clofed; but if the parties have not fufficient skill, the juftice fhould make an entry of their pleas, whether it be a demurrer or the general iffue, fo that they may know the queftion to be tried. When the pleadings clofe in a demurrer, either to the decla ration, the plea, replication, or rejoinder, the court must always give their opinion, as to the fufficiency or infufficiency of that Part of the pleadings to which a demurrer is taken: for instance, if the demurrer is taken to the declaration, they muft fay, that the declaration is fufficient, or infufficient, according to their opini on. If they find the ifue in law, or demurrer in favour of the plaintiff, they muft after deciding that point, proceed to confider and give judgment, that the plaintiff recover fuch fum of debt, or damages, as they may think juft with his coft. If determined in favour of the defendant, then judgment must be renderd for his coft. As for inftance in a demurrer to a declaration, "This court is of opinion that the plaintiff's declaration is fufficient and therefore confider and give judgment, that the plaintiff recover of the defendant, fuch fum in debt or damages with his coft," or otherwife, "This court is of opinion, that the plaintiff's declaration is infufficient, and confider, and give judgment, that the defendant recover his coft," and in like manner, to the plea, replication, or rejoinder. Where an iffue in fact is clofed, the court must always exprefsly find or negate all the facts put in iflue. If it be the general iffue of owe nothing, did not affume and promife, or not guilty, in all these cafes, the court must say, that this court is of opinion, that the defendant, does or does not owe; did, or did not affume and promife; is, or is not guilty in mammer and form, as the plaintiff in his declaration has alledged, and therefore confider and give judg ment, that the plaintiff recover of the defendant, fuch fum in debɩ or damages with his cofl; or if the iffue be for the defendant, then for for him to recover his coft. So if there be special pleadings and a traverfe of fome particular facts, then the court must find or negate every fact put in iffue, and proceed to render judgment according to their finding of the facts: but they may in no cafe generally give judgment for one party or the other, as is often the cafe; but they must always answer the pleas, and give judgment accordingly. When judgment is rendered upon a verdict, it must be for the precife fum in damages found by the jury, when on confeffion, the parties agree on the fum; but when judgment is rendered on demurrer, default or nihil dicit, the court muft affefs the damages. Where the action is founded on a contract, and is for a fum certain, without any dispute respecting the fum due, the judgment is a matter of courfe; but if there have been payments, or if either party difpute the fum, for which judgment ought to be rendered, the regular method is to move the court, to be heard in damages, in which case, they may make all proper enquiries of witnesses, respecting the true and juft amount of the debt, and render judgment for fuch fum as they fhall find to be due. But if there be no motion to be heard in damages, the court ought not to render judgment for the whole fum demanded, if that is more than appears to be due from the declaration. As where in an action of affumpfit for fixteen fhillings, and demanding thirty fhillings damages, the justice of peace rendered judgment on default, for thirty fhillings, but the judgment was reverfed, because it was apparently for more than was due In the cafe of an absent debtor, execution was granted without the creditor's lodging a bond, as required by ftatute; on writ of error the judgment was reverfed, because it ought to have been, that execution be granted upon the plaintiff's lodging a bond agreeable to the statute. Where the action is founded on a tort, as trespass, affault and battery, or flander, if on demurrer, judgment be rendered against the defendant, or if he refufes to plead, or makes default of appearance, then judgment may be rendered against him, for the fum demanded by the plaintiff, unless he moves for a hearing in damages, in which cafe, the court may go into an enquiry of witnesses with respect to all facts which are neceffary and proper, to enable them to afcertain Lewis vs. Lawson, S. C. 1791. Strong vs. Meacham, S. C. 1792. afcertain the damages, and then they will render judgment for fuch fum as they shall judge to be just and reasonable. Our courts poffefs the fame power to affefs damages, as a jury in England, upon a writ of enquiry, iflied to the fheriff for that purpofe. There, in thefe cafes, the court must iffie a writ to the sheriff, commanding him by twelve men to enquire into the damages and make return to the court; which procefs is called a writ of enquiry, the fheriff fits as judge, and there is a regular trial by twelve jurors, to affefs the damages. This mode of proceeding must be productive of expence and delay, and the practice of this flate, introduced by our courts, without the authority of a ftatute, of affeffing the damages themfelves, without the intervention of a jury, is one of the many inftances in which we have improved up. on the common law of England. It is a general rule, that the party in whofe favour judgment is rendered, is entitled to coft: but to this there are fome exceptions. When judgment is arrefted for the infufficiency of the declaration, the defendant fhall not be allowed coft, becaufe he might have demurred in the first instance, and faved the expence of a trial by the jury. a It is also enacted by statute, that in actions of trefpafs, affault and battery, and trefpafs upon the cafe, in the fuperior and county courts, (except only where the title, or inheritance, or intereft of Jand, or freehold eftate, be the principal matter in queftion,) if the court or jury find damages under forty fhillings, the plaintiff fall recover no more cost than damages, unless the action be removed by the appeal of the defendant, from an affistant or justice of the peace, to the county court, or from the county, to the fuperior court, when the plaintiff shall recover full cost, if he recovers any damages. It is evident that the legislature at the time of paffing this law had no idea of the extent of the words trefpafs on the cafe; for it will comprehend all actions founded on torts, without force, and all actions founded on contracts, excepting the original specific actions of debt, covenant and account. Our courts have never ex Kirb. 218. d Statutes, 7. tended tended it fo far, and it is uncertain to what actions they would. apply it. It has been determined, that an action brought by a parent, for expences incurred in taking care of a child, wounded by the defendant, comes within this ftatute, and that no more coft than damages fhall be allowed. f In an action of trover for an execution, the cafe was, that after the bringing the action, and before trial, the fame came into the hands of the plaintiff, and the jury found a verdict for the plaintiff with twelve fhillings damage only, and the question was, as the execution was for a much larger fum than forty fhillings, whether the plaintiff fhould recover more coft than damage. The court allowed full cost, on the idea that tho he recovered but twelve fhillings, which was the fpecial damage, yet as the difpute refpected an execution for a large fum, which he might be confidered as recovering by the fuit, he ought to be allowed full coft. Tho this decifion is equitable, yet it is clearly against the letter of the ftatute, and points out the expedients to which courts must refort, to evade the injuftice of that ftatute. The legiflature ought therefore to repeal it, and by ftatute explicitly defignate the actions in which no more coft than damages ought to be allowed, and to confine the ftatute to fuch actions, where the public good may be promoted, and needlefs litigation prevented before the higher courts, by fubjecting the party to a lofs of his coft, who will profecute a trifling and frivolous action: but fuch a regulation, ought not to comprehend thofe actions, where matters of large value may be in conteft, tho the fpecial circumstances of the cafe may be fuch, that finall damages only ought to be allowed. When the defendant appeals on a judgment given on a plea in abatement, and fhall not make good his plea by the judgment of that court to which he appeals, coft fhall be awarded, and execution iffued against him, however the cafe may finally iflue. b It has been determined, that on final judgment in favour of the plaintiff, after abatement and amendment of the writ, he fhall recover no cost antecedent to the amendment, excepting, writ, duty, and officer's fees. New Kirb. f Brick, &c. vs. Reed, S. C. 1989. g Statutes, 2. Kirb. 89. |