PART IV. OF JUDGMENT, EXECUTION, JAIL LIBERTIES, DISCHARGE OF INSOL- CHAPTER I. OF JUDGMENTS. what it is. The proceedings in the action having by some of the Judgment, modes of which we have been treating, been brought to the proper period, one of the parties, or possibly both, is entitled to judgment; which is the sentence of the law pronounced upon the matters contained in the record. The extensive va- Subject riety of those matters calling in every case for the pronunciation of an appropriate and suitable judgment, and the serious consequences of a wrong judgment, render the subject of judgments a highly important one, and require a familiar acquaintance with their different kinds, and the modes of entering them. And as in judgment records, form is more important than in any other part of the proceedings, we shall depart from the plan we have hitherto observed, and in treating of the different varieties of judgments, give the form also in which they are to be entered. In treating of this subject we shall consider, 1. The nature arranged. and different kinds of judgments, and their qualities and incidents. 2. Judgment records. 3. Entering and docketing judgments, and their priority and lien. 4. Amending and setting off judgments; the satisfaction and cancelling of judgments; and audita querela. SECTION I. OF THE NATURE AND DIFFERENT KINDS OF JUDGMENTS, AND OF Kinds of The most general division of judgments, is into interlocujudgment. tory and final. As we have already had occasion to treat of the different kinds of interlocutory judgments, final judgments will alone be considered in this place; the former being noticed only so far as is necessary to show the difference between them and the latter. Interlocutory judgments, eas ouster, quod compu tet, Interlocutory judgments are such as are given in the middle of a cause upon some plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the suit. Of this nature are all judgments for the plaintif upon pleas in abatement of the action; in which it is considered of respond by the court that the defendant do answer over, respondeat ouster. The judgment also in account, that the defendant account, quod computet, is interlocutory. But the interlocutory judgments most usually spoken of, are those incomplete judgments, whereby the right of the plaintiff is established, but the amount of damage sustained by him is not ascertained; which is a matter that cannot be done without the intervention of a jury, or of the clerk of the court.' 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 it happens either where the defendant suffers judgment to go against him by default, or nihil dicit; as if he puts in no plea to the plaintiff's declaration; or by confession, or cognovit actionem, where the defendant acknowledges the plaintiff's demand to be just, without acknowledging the specific amount by default, by confes sion 1 See 2 R. St. 356. s. 1. et seq. Ib. 358. s. 11. KINDS. non sum due, or as much as the plaintiff claims: or by non sum infor- NATURE AND matus where the defendant's attorney declares that he has no instructions to say any thing in answer to the plaintiff, or in de- informatug fence of his client; or lastly, when a demurrer, or issue of nul on demurrer: tiel record, is determined in favour of the plaintiff : if these, or any of them happen in actions where the specific thing sued for is recovered, as in actions of debt for a sum certain, the judgment is absolutely complete: but where damages are to be recovered, a jury must be called in to assess them, or as the case may be, the assessment may be made by the clerk.2 ments. Final judgments are such as at once put an end to the action, Final judgby declaring that the plaintiff has either entitled himself, or has not, or has only partly entitled himself to recover the remedy he sues for; and in cases where he has not entitled himself to recover, by declaring in addition, that the defendant recover his costs, and sometimes also the debt or damages which he has pleaded by way of set-off. . The first distinction which we shall notice between the dif-Kinds. ferent kinds of final judgment, is one which is merely technical, and as respects the record, or validity of the judgment, of no importance; but is often to be met with in the books, and may still be seen in the common practice of making up records; and is merely this: in all actions, vi et armis, or where the de- Capiatur, fendant, in his pleading, had falsely denied his own deed, the judgment anciently directed, that the defendant be taken up till he paid a fine, capiatur pro fine, and was from this circumstance called a capiatur; in all other cases the defendant was adjudged to be amerced, sit in misericordia, and the judgment was Miseritor called a misericordia. The judgment for the defendant was also sometimes a capiatur, and sometimes a misericordia. The capiatur and misericordia are now only matters of form, and may be omitted, or entered improperly, without affecting the judgment.3 All judgments are comprehended within the following four General digeneral descriptions: 1. Where the facts are confessed by the judgments. * 2 B.Com. 398. 31 Arch. Pract. 225. dia vision of NATURE AND KINDS. Nature of the recovery actions. parties, and the law determined by the court; as in case of judgment upon demurrer: 2. Where the law is admitted by the parties, and the facts are disputed; as in case of judgment on a verdict, or the issue of nul tiel record; judgments of either of which descriptions may be for the plaintiff or defendant: 3. For the plaintiff, where both the facts and the law arising thereon are admitted by the defendant; which is the case in judgments by confession, non sum informatus, and nihil dicit: or, 4. For the defendant, where the plaintiff for some reason abandons or withdraws his prosecution; as in judgments of nonpros, discontinuance, nolle prosequi, cassetur processus, cassetur billa vel breve, retraxit, nonsuit, and as in case of nonsuit. 4 In assumpsit, covenant, trespass, and trespass on the case, in different the judgment for the plaintiff is, that he recover his damages and costs against the defendant. In debt, the judgment is, that he recover his debt, together with his damages and costs. The judgment for the defendant in these actions is for his costs, where he is entitled to recover them, and where he is entitled to recover a set-off, for that also. We have already sufficiently considered in what cases either party is entitled to a judgment for costs.5 To be in dol lars. Distinct judgments on one re cord in some cases, The revised statutes provide, that "in all judgments or decrees rendered by any court of justice, for any debt, damages, or costs, and in all executions issued thereon, the amount shall be computed, as near as may be, in dollars and cents, rejecting lesser fractions; and no judgment, or other proceeding, shall be considered erroneous for such omissions." There are instances in which there may be distinct judgments on the same record. If the court see two separate causes of action on the same record, on one of which the plaintiff succeeds, and the other is found for the defendant, they are bound 4 2 Tidd. Pract. 963. 5 Ante, 570. 677. 61 R. St. 612. s. 2. AND to give distinct judgments. And in many cases where several QUALITIES persons are made defendants, and one or more of them obtains INCIDENTS. a verdict, or a plea in abatement or demurrer is determined in their favour, or the plaintiff discontinues as to them, but succeeds as to the other defendants, there must be distinct judgments on the record. plaintiff recovers damages, but defendant costs. There may be also distinct judgments on the same record and where where the plaintiff recovers judgment, but to so small an amount that the defendant is entitled to recover costs. And in this instance the court have lately prescribed the form in which the record is to be made up. The court observed, that "in England, where a plaintiff recovers a sum not carrying costs, and the defendant in consequence is entitled to costs, the practice is, to move the court for leave to enter a suggestion to that effect upon the record, to have the costs taxed and marked upon the postea and issue roll. Here, where it appears upon the face of the postea that the defendant is entitled to costs, it is not necessary to make such motion. By our statute, in a case like this, if the plaintiff does not recover above the sum of fifty dollars besides costs, he does not recover costs, but pays costs to the defendant; and it is provided, that 'the defendant shall have judgment and execution for the same in like manner as if a verdict had been given for him.210 From the phraseology of the act, it would seem that a defendant was authorized to make up a record of judgment for his costs; but this cannot be the true construction, for the plaintiff has an unquestionable right to make up the record for the amount of his recovery, and should he do so, and the defendant also make up a record, there would be two records of judgment in one cause, which is not in harmony with the orderly conduct of legal proceedings. Whatever may have been the practice 73 Term. Rep. 658. 2 Caines' Rep. 218. As to distinct judgments for costs in these cases, see 2 R. St. 617. s. 26, 27, 28. 19 Johns. Rep. 266. VOL. II. 8 And as to costs in such cases, see 2 R. St. 616. s. 18, 19, 20. and see 3 T. R. 656. 30 22 R. St. 615. s. 16. |