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order that judgment or execution shall be stayed till a day to be named in such order.


I hereby certify that judgment ought not to be signed until the

day of

A.D. 18-in order that the within named defendant may have an opportunity to apply to the Court for a new trial herein.a

A. B. Sheriff.

The record being thus remitted to the Superior Court, execution issues as in other cases. The writs, &c., will be found hereafter.



In this Court the Sheriff acts, at times, in a judicial, at times, in a ministerial capacity. A writ of inquiry is an inquest of office, to


352. The Sheriff's notes need not be filed; Mansfield v. Brearey, suprà. When an Under-sheriff refused to produce his notes, after the Court had required their production, the Court made him pay the costs consequent on such refusal? Metcalfe v. Parry, 3 Dowl. 93; but he is not answerable for his agent's conduct in withholding them, unless it is shown that the latter acted under his direction; ibid. In Flower v. Adams, 8 Dowl. 292, Patteson J. said to counsel on moving for a rule nisi, as you were at the trial I will take a statement of the facts from you without the production of the Recorder's notes on applying for the rule nisi;" see Lawlor v. Clement, ibid. 680. The affidavit verifying the Under-sheriff's notes need only state that the paper annexed contains the notes sent by the Under-sheriff to the Court; Hellings v. Stevens, 4 Tyr. 1001. Affidavits are admissible on the other side of evidence given at the trial which does not appear in the notes; Lilley v. Johnson, 2 M. & W. 386; Mangell v. Cowley, 2 Sc. N. R. 583; but when a rule for a new trial is moved for on the Under-sheriff's notes on the ground of the absence of evidence to warrant the verdict of the jury, it is not competent for the other party to use

affidavits; Jones v. Howell, 4 Dowl. 176; the Court will not compel the Under-sheriff to make an affidavit of circumstances which occurred at the trial; Power v. Horton, 3 Hodg. 14. Where a new trial is moved for as against evidence it is not necessary there should be an affidavit stating the ground of motion; Heming v. Ackerman, 2 D. & L. 733. The circumstance of the Under-sheriff having refused to certify does not preclude a party from applying for a new trial within the proper time, and on such application the Court will judicially notice the record; Angell v. Iler, 5 M. & W. 600; 7 Dowl. 846. So without a certificate to stay proceedings defendant may after execution apply to enter a suggestion to deprive the plaintiff of costs; Johnson v. Veal, 5 M. & W. 276; Badby v. Oliver, 7 Dowl. 487. The Under-sheriff should state in what way he left the case to the jury; Ralph v. Harvey, 1 Q. B. 843. The Court will not permit the judgment to be entered without costs; 2 Sc. N. C. 444.

a The forms of postea and judgment are to be found in Reg. Gen. Hil. T. 1853, Sch.

b See Carrett v. Smallpage, 9 East, 333.




inform the conscience of the Court. The Court itself may assess
the damages. After judgment by default, or on demurrer, or nul
tiel record, where the judgment was interlocutory, which was
always the case in assumpsit, covenant, case, trespass, and replevin
(in debt and ejectment being final) the amount of damages was,
before The Common Law Procedure Act, 1852, ascertained by a
writ of inquiry; but that Act, after abolishing rules to compute,
makes every judgment of default final, in actions brought to re-
cover a debt or liquidated demand in money, and enacts that "in
actions in which it shall appear to the Court or a judge that the
amount of damages sought to be recovered by the plaintiff is sub-
stantially a matter of calculation, it shall not be necessary to issue
a writ of inquiry;" but that it may be referred to one of the
masters. In actions, therefore, other than for a debt or liquidated
demand in money, the mode of proceeding is just as it was before
the Act; that is to say, the judgment is interlocutory, and the
damages are adjudged by the Court itself, or by a writ of inquiry.
In actions of the kind described in the Act, the plaintiff, after
signing final judgment, may issue a writ of inquiry, or he may
apply to the Court, or to a judge, to refer the amount to one of
the masters.

Writ of Inquiry.

Victoria, &c. To the Sheriff of W. greeting: Whereas A. B. lately in our Court before us [C. P. "before our justices" or in Exch. "before our barons of our Exchequer"] at Westminster, by his attorney sued C. D. for [as in declaration]. And such proceedings were thereupon had in our said Court that the said A. B. ought to [do] recover against the said C. D. his claims on occasion of the premises. But because it is unknown to our said Court what claims the said A. B. hath by means of the premises aforesaid; therefore we command you that by the oath of twelve good and lawful men of your bailiwick you inquire what claim the said A. B. hath as well by means of the premises aforesaid as for his costs and charges by him about his suit in this behalf expended and that you send to us [C. P. "to our justices" or "to our barons"] at W. &c. on the inquisition which you shall thereupon take under your seal and the seals of those by whose oath you shall take that inquisition together with this writ. Witness &c.d

a Bruce v. Rawlins, 3 Wils. 61; Goodwin v. Wilsher, Yell. 151; 1 Roll. Abr. Damages, L. P. 573; Gould v. Hammersley, 4 Taunt. 148; Bridport v. Jones, 3 M. & Gr. 637 n. (a); and see Holdiss v. Otway, 2 Saund. 107, n. 2; and Price v. Green, 16 M. & W. 350.

b 15 & 16 Vict. c. 73, ss. 92, 93, 94.

Where the judgment is final.

d The writ is engrossed on parchment, sealed and signed (except in Q. B. Tidd, 9th edit. 574), the day on which it is to be executed should be indorsed upon it, and if left at the Sheriff's office, (which should be the day before at latest), the Sheriff will summon a jury accordingly. It is tested on the day on which it issued, in actions within the

Uniformity of Process Act, and made returnable on any day certain in term or vacation (1 Will. 4, c. 7, s. 1). It is so returnable when issued out of the Court of C. P. at Durham, 2 & 3 Vict. c. 11, s. 17. A Court of Error may now award it, 15 & 16 Vict. c. 76, s. 157. When issued under s. 208, after same act it is tested on the day it issues, and is made returnable immediately after the execution thereof. As to the time of giving notice of inquiry, &c., short notice, continuance, &c., see ante, p. 69, and 15 & 16 Vict. c. 73, s. 97, Reg. Gen. Hil. T. 1853. The Court has allowed the notice to be served at the last place of abode of the defendant, and by putting it up in the master's office; Probum v. Locock, 1

Reg. Gen. Hil. T. 1853, r. 46, says, "There shall be no rule for the Sheriff to return a good jury upon a writ of inquiry, but an order shall be made by a judge upon summons for that purpose."


It is usually executed before the Sheriff or his deputy. Where, Before however, some difficult point of law is likely to arise, or where whom exthe facts are important, it may, by leave of the Court, or a judge, be executed before a judge, at sittings or Nisi Prius. He there acts ministerially in aid of the Sheriff. If the venue be laid in Middlesex or London, it may be executed before the Ch. Justice, or Ch. Baron.a

It is usually executed where the venue is laid; but under special circumstances, it might be executed elsewhere. Also, in local actions, the writ may be executed (by order of the Court in which such action shall be depending, or any judge of any of the superior Courts of law at Westminster,) in any other county, or place, than that in which the venue is laid; and the Court may order a suggestion to be entered on the record to that effect. It may be executed the same day that it is made returnable.©


To execute this writ, he must, at once, enter all liberties or franchises. The Court will not stay the execution of this writ, at the instance of any person, unless such person be a party to the suit: for instance, on the motion of the Sheriff; although he could show that, in executing it, his personal liberty was in danger, from the warrant of the Speaker of the House of Commons, or the like.* The number of the jurymen may exceed twelve. Where a writ of When, the kind was executed at the bar of the Court of K. B. in an where, and action of Scand. Mag. brought by the Duke of York (afterwards how exeJames II.) against Titus Oates, fifteen were sworn upon the jury, and gave all the damages laid in the declaration, viz. 100,000l. În that case, the Sheriff of Middlesex sat in Court covered, at the table below the judges.f


It was, before The Common Law Procedure Act, 1853, the universal practice, whenever the damages were mere matters of calculation, to have them assessed by one of the masters, without any writ of inquiry at all; thus, in actions on bills of exchange and promissory notes; in covenant for non-payment of rent;h of money lent on mortgage; or in an action on award;k or the like. But the rule was in practice confined to those cases where it appeared on the declaration that the action was brought on the instruments themselves. Where the damages were not mere matters of calculation, the Court would not so refer it; and a writ of inquiry was necessary. Thus on a covenant to

Dowl. N. C. 179; or, when his residence is unknown, by leave of the Court or a judge it may be stuck up in the office.

a See 1 Sellon, 344. See also Green v. Price, 13 M. & W. 700; 16 ib. 350. b 3 & 4 Will. 4, c. 42, s. 22.

c Gawen v. Ludlow, Cro. Eliz. 1040. d Hob. 83; ante, 28.

e Stockdale v. Hansard, 9 Ad. &

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E. 1.

f 3 State Trials, 987.

Shepherd v. Charter, 4 T. R. 275;
Napier v. Schneider, 12 East, 420;
Holdip v. Otway, 2 Saund. 107; Nel-
son v. Sherridan, 8 T. R. 395.

h Byron v. Johnson, 8 T. R. 410.
i Berther v. Street, 8 T. R. 326.
See Tidd, 571.

Osborne v Noad, 8 T. R. 648,




indemnify; on a foreign judgment; and on a bill of exchange
payable in foreign money; and even in assumpsit for a liquidated
sum due upon an agreement; the Court would not refer it.
too, where the damages were not nominal, in debt (when the judg-
ment was final) as well as in any other form of action, a writ of
inquiry was issued; thus, in an action of debt for foreign money,
a jury found the value of the money; so in use and occupation, on
a quantum meruit. What alteration has been made by The Com-
mon Law Procedure Act, 1853, has been fully explained in a former

Where there is judgment by default as to part, and issue joined as to the residue; or, when one of several defendants suffers judgment by default, and the other pleads to issue; or, if there be a demurrer to one count, and an issue of fact raised on the other, a writ of inquiry is not issued; the damages, in such cases, are assessed by the jury, who try the issues, by virtue of the precept issued by the judges of assize. But, if plaintiff have obtained judgment on the demurrer, he may execute a writ of inquiry, as to that count, and enter a nolle prosequi as to the other: provided he do Demurrer to so before final judgment. Where there is a demurrer as to part, part and and judgment by default as to the residue, plaintiff may either judgment await the result of the demurrer, and then execute a writ of by default to residue. inquiry on both judgments, or, execute a writ of inquiry at once on the judgment by default, and assess contingent damages on the demurrer. The writ must be executed against all the defendants who have suffered judgment by default jointly and not separately. If a several final judgment be entered up, in such a case it will be error.i In actions ex contractu, where one suffers judgment by default, and the other pleads, and obtains a verdict, no writ of inquiry can issue against the one who has suffered judgment by default; for it appears, by the verdict, that he had no cause of action against either. In actions ex delicto it is otherwise; for one may be guilty and the other not guilty.

Where one

default and another

What evidence is the Sheriff to admit on the inquest? suffers judg. In order to form a correct notion of this, he must know what ment by admissions are made on the record by a judgment by default. In a former page has been stated the effect of a plea of pleads and payment of money into Court, as an admission of record. The effect of an admission made by such a plea, and of a judgment by default, seem strictly analogous; and the authorities may be mutually brought in aid. Upon the common indebitatus counts the effect of such a judgment is, that the cause of action, as alleged in the declaration, is thereby admitted; and the Evidence. only disputable point is the amount: thus, on a declaration for

has a verdict.

a Dennison v. Mair, 14 East, 622.
b Messin v. Massanere, 4 T. R. 493.
c Maunsell v. Massarene, 5 T. R. 87.
d. Tidd, 571.

e Arden v. Connell, 5 B. & A. 885;
Bale v. Hodgett, 7 Moore, 602.

f 11 Co. 5; Dicker v. Adams, 2 B.

& P. 63.

Duperoy v. Johnson, 7 T. R. 473. h See 2 Chit. Archb. 697, 756, 6th


i Mitchell v. Milbank, 3 T. R. 199; see also 1 Str. Rep. 422.



work and labour, the judgment by default admits the fact of some work and labour having been done for the plaintiff, and therefore that something is due; but defendant (the amount only being in dispute) may cross-examine plaintiff's witnesses as to whether certain portions of the work had been done on the retainer of the defendant; and seemingly put any questions which tend to reduce the amount.a But, he will not be allowed to give evidence of fraud, or of any other matter, which would render a contract void; because the validity of the contract is admitted. Nor will he be allowed to give in evidence, to reduce the amount, any matter which might have been the subject-matter of set-off; or any fact Ex conwhich would be a bar to the action, if pleaded.d Upon a special tractu. count, the judgment by default admits the contract as alleged; and the amount alone can be inquired into. Thus if the action be brought on a bill of exchange, or promissory note, and defendant let judgment go by default, it need neither be proved nor produced. Formerly it was considered necessary to produce the instrument, to satisfy the jury, that nothing had been paid on account of it; and, if not produced, the jury were directed to find nominal damages only. But, this has been altered; and the law now is, as already stated, that the instrument need not be produced, except for the purpose of recovering interest. If, however, the sum be laid under a videlicet, as the judgment by default would not admit that exact sum to be due, the instrument must be produced; and if it require a stamp, properly stamped. In actions ex delicto, or, where the damage actually sustained by the plaintiff is the measure of the damages to be given by the jury, if the plaintiff do not prove the nature of the injury, and the amount of the damage sustained by him, the jury should give nominal damages only. But where the jury are to infer the amount of the damages from the nature of the injury, the jury may give more than the nominal damages, without any evidence of the damage being given: thus, Ex delicto. in an action for words imputing subornation of perjury to the plaintiff, at the execution of the writ of inquiry, the counsel for the plaintiff offered no evidence, but merely addressed the jury, who gave 50%. damages; and the Court held that they had not estimated damages erroneously. In replevin: if the goods have not been delivered on the replevin, damages are recoverable as well for the value of the goods as for their detention: if the goods were delivered, which, in general, is the case, damages for the detention only are recoverable-usually four guineas-the supposed price of the replevin bond. But the avowant, or person making

a Williams v. Cooper, 3 Dowl. 204. b Eadom v. Lutman, 1 Str. Rep. 612.

c Carruthers v. Graham, 14 East, 78. a Leicester v. Walton, 2 Camp. 251; Speck v. Phillips, 5 M. & W. 279; ante, 151.

e Lane v. Mullins, 2 Q. B. 254;

Lawrence v. Clark, 3D. & L. 87; Davis
v. Barker, 3 C. B. 606.

Hutton v. Ward, 15 Q. B. 26.
King v. Beck, 8 Dowl. 735; Cooper
v. Blick, 2 Q. B. 924; Banbury v. Ro-
binson, 1 D. & M. 96.

Tripp v. Thomas, 5 Dowl. & Ry. 276; S. C. 3 B. & C. 427.

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