QUALITIES in her name and that of her husband."57 "If a female plainINCIDENTS. tiff marry after final judgment, but before execution issued, a AND like suggestion of the fact shall be entered on the record, and an award of execution shall be made in her name and that of her husband.”58 "In the cases mentioned in the two last sections, an order of a judge of the court in which such action shall be pending, shall be necessary to enter the suggestions and award execution, as therein provided."59 "Such order shall be granted upon the application of the husband of such female plaintiff, on due proof of the marriage, and after reasonable notice to the defendant, and to the female plaintiff, to show cause against granting the same."60 SECTION II. OF JUDGMENT RECORDS. Nature and object of the We will now proceed to the consideration of the judgment entries on record, which in many of its parts is the same in almost all the roll. cases. The entries on the record are supposed to be made from time to time in term, at certain different periods, or stages, in the progress of the suit. When the pleadings are brought to a close, so that the court can proceed upon them as their nature may require, they are then supposed to be engrossed, or enrolled, by order of the court, with connecting statements, showing the history and progress of the cause, and concluding, if the case be such as in that state to admit of final judgment, with its rendition; but if something remains to be done in order 57 2 R. St. 387. s. 8. 59 Ib. 388. s. 10. 60 lb. s. 11. RECORDS. to enable the court to pronounce judgment, or the court are JUDGMENT not prepared to render it, then concluding with a suitable award or order for the requisite proceedings, or that the parties have a future day in court. 63 caption, term. As the entries supposed to be made at this time always form the first portion of the record, and as the making of them is the first act of the kind which appears upon the record, the term of the court when this act is performed, is placed at the head of the record, and is called its caption.62 It is also called Placita or the placita, from the word pleas, with which it commences. From these obervations it will be perceived that where an of what issue is joined upon the record, the placita should be entitled of the term of the issue; or where the cause of action is admitted by confession or default, of the term when the confession is made, or interlocutory judgment entered upon the default : And if either the issue or confession happen in vacation, they relate to the preceding term. The default, if entered in vacation, has no such relation, as regards the record, but is of the time when the interlocutory judgment is entered, which must necessarily be in term. 64 dum, what it Formerly the warrants of attorney followed the placita ; but Memoranas they are now abolished, the next entry on the record is the memorandum, by which is stated, historically, the term of should state; which the plaintiff declared, the manner in which the defendant was then in court, and the furnishing of pledges of prosecution by the plaintiff, the last of which is now quite superfluous. The memorandum is only necessary where the proceedings are by bill. And as the theory of the law will probably continue to be, that all actions not commenced by original writ are commenced by bill, the memorandum should, probably in all cases, still state that the defendant is in custody, &c. If, however, the action is against joint debtors, some of whom have not been taken, the memorandum should state that those who have been taken were in custody, and the rest returned not found; and in this respect should in all cases correspond with JUDGMENT the declaration. RECORDS. when it varies. It would seem that it is now no longer necessary to mention, as formerly, the officer who has the defendant in actual custody.65 In stating the time of exhibiting the bill the memorandum varies in five cases 101 1. Where the plea or default is of the same term as that mentioned in the caption of the declaration. 2. Where it is within any of the three subsequent terms. 3. Where it is of above four terms, or a year after. 4. Where the declaration is entitled of a particular day in the term of which it is filed, in consequence of the cause of action accruing after the first day of that term. 5. Where the suit was commenced in vacation, by bill against attornies, &c., or by declaration, and the cause of action accrued after the preceding term. Next to the memorandum by which it is introduced upon the record, follows the entire declaration, excepting the capDelaration. tion and attorney's signature." fault. And now, that is, of the term of the declaration, if the defendant pleads, or judgment against him by default is taken of Plea or de- such term, the court, by its officers, is supposed to make up the roll to this period; and the record accordingly states, in the present tense, that the defendant comes into court, in person or by attorney, according to the fact, and that he either puts in his plea, which is thereupon enrolled, or, that he says nothing in bar or preclusion of the plaintiff's demand, that is, that he makes default; or in the latter case it may be stated, that although solemnly demanded, he comes not, but makes default.67 The presence of the plaintiff in court, appears from the memorandum. All subsequent plead same term as the plea. All pleadings subsequent to the plea are supposed to be ings of the put in of the same term with that, although many terms may intervene; and the issue is therefore, in supposition of law, always of the same term with the plea, no notice being taken in the record, of the term when such subsequent pleadings are actually put in.68 65 Ante, Vol. 1. p. 423. n. 101 Appendix, ii. 67 Appendix, iv. v. vi. 68 Appendix, iv. 66 Appendix, iii. RECORDS. Imparlance. But if the plea or judgment by default is not until a term JUDGMENT subsequent to the declaration, the roll is not supposed to be made up until then; and it then, in stating that the parties come into court, and that the defendant pleads or says nothing in bar of the plaintiff's demand, also assigns the reason why the defendant did not plead, or why judgment by default was not rendered of the term of the declaration, as should regularly have been done; viz., that the defendant had leave to imparle until the present term, and then plead. The term, until which the defendant has leave to imparle, may be either the next or any subsequent term after the declaration, no notice being taken of the intermediate terms. This entry, which is called an imparlance, and is in the nature of a continuance, immediately follows the declaration. The plea having been thus entered on the roll with the imparlance, the other pleadings follow it in the manner we have mentioned where there is no imparlance. order upon ings. And here the pleadings being in such a state as to enable Judgment or the court either to pronounce upon the rights of the parties or the pleadto direct them to be suitably ascertained, they proceed to render judgment or to make such order as the case may require; and this terminates the entries supposed to be made at this time; the next period of making entries on the record, if final judgment has not been given, being supposed to be, when the court, again in term, proceed to take order upon the matters contained in it, or to give the parties a future day for trial or judgment; and so on until final judgment. verdicts. trial of an The pleadings having been brought to a point, forming an Records on issue of fact, it is necessary that a jury should be called to try order for the such issue; and the entry of the pleadings on the roll, accord- issue, ingly, formerly concluded in such cases, with an order that a jury should be called for the purpose. But the revised statutes, in abolishing the venire, except in case of a foreign jury, have also made a corresponding alteration in the record, directing 69 Appendix, vii. viii. ix. RECORDS. and continuance if not tried. 73 JUDGMENT that the entry70 should be, that the issue is ordered by the court to be tried at the circuit court, or sittings, at which the same may be triable, without any thing more;71 and that if a cause be not then tried, it shall be a sufficient continuance12 to state the fact that such cause was not tried, and that the process between the parties is continued until the circuit when such issue shall be tried, or until the term when some judgment of the court shall be given, or some order be made concerning the suit. In making up the record, the proper course would seem to be, in all cases, at the term of the issue, to order the issue to be tried at the next circuit, giving the parties a day in court at the next term after the circuit, and if not tried at such circuit, at the next term thereafter, to enter the general continuance until the circuit at which it shall be tried, giving the parties a day in court at the next term thereafter.74 The effect of these entries is, of course, the same as by the former mode of vicecomes non misit breve. Order for the assessment Sometimes it is necessary that the jury who try the issue of damages, should also assess the damages upon a count in the declarathe trial of tion, as to which the defendant has not pleaded, but has suf as well as an issue. fered judgment by default;75 or that they should assess the damages where there is another defendant who has suffered judgment by default;76 or should assess the damages where there is an issue of law," or an issue to be tried by the record" as well as the issue of fact. In these cases the order for the trial of the issue must also contain an appropriate order that the jury assess the damages. In making up the record in these cases, the order for the trial of the issue, and the continuance thereof,should be entered in the usual manner, except that the order for the trial of the issue also contains an order for the assessment of dama 70 Appendix, x. 71 2 R. St. 410. s. 5. 72 Appendix, x. 73 2 R. St. 423. s. 83. * Appendix, x. 75 Appendix, xi. 76 Appendix, xii. 77 Appendix, xiii. xiv. 78 Appendix, xv. xvi. |