As to some of fendants. So, where there are several defendants, if some let judgment CHAP. III. go by default, and others plead to issue, a similar special venire should be awarded, and the jury who try the issue should assess several Dethe damages against all the defendants (d). But in actions where the plea of one defendant enures to the benefit of all, as in actions upon contracts (e), if the plaintiff fail of obtaining a verdict against those who have pleaded, he cannot have damages assessed against the others who let judgment go by default; for the contract being entire, the plaintiff must succeed against all the defendants or none (ƒ). In actions ex delicto, on the contrary, if the plaintiff do not succeed against the defendants who plead, he may still have his damages assessed against those who allowed judgment to go by default (g), (unless the plea of those who pleaded prove that the plaintiff could have no cause of action against any of them (h)), for the tort is several, as well as joint (i). interlocutory Judgment by default is interlocutory in assumpsit, covenant, The Judg. trespass, case, and replevin, where the sole object of the action ment, when is damages; but in debt and ejectment, damages not being the or final. principal object of the action, and those usually recoverable not being of sufficient consequence to warrant the expense of executing a writ of inquiry, the plaintiff usually signs final judgment in the first instance. But even in debt the plaintiff must, as we shall hereafter see, in some instances in actions on bonds, execute an inquiry; and sometimes, though not necessary, it may be advisable for him to execute it (4). When Signed.] Judgment for want of a plea cannot be When Signed. signed until the defendant is fully before the court. And if it be signed without an appearance entered, it is a nullity, and cannot be cured, even by laches of the defendant (1). Therefore, in bailable actions, before the passing of the act for abolishing arrest on mesne process, &c. (1 & 2 V. c. 110), if the defendant had not perfected bail, the plaintiff could only proceed against the sheriff, or upon the bail-bond, to compel an appearance by perfecting bail; but in non-bailable actions, if the defendant had not entered an appearance within the time limited for that purpose by the rules of the court, the plaintiff might do it for him in pursuance of the statute, and afterwards sign judgment by nil dicit, if the defendant had not pleaded within the time allowed him for that purpose (m); and as all personal actions must now be commenced by writ of summons (n), except in case of proceeding against insolvents under the 85th section of the 1&2 V. c. 110 (o), the plaintiff may now, it seems, in all cases, enter an appearance for the defendant, and sign judgment as in non-bailable actions before the act 1 & 2 V. c. 110. It may be as well here to refer to the preceding volume of this Work, (d) 11 Co. 5: Dicker v. Adams, 2 B. & P. 163. See the form of the award of the tenire. Chit Forms, 44. (e) Purter v. Harris, 1 Lev, 63: Bouter v. Ford, 1 Sid. 76: Ca. Pr. C. B. 107: Pr. Reg. 102: Hannay v. Smith, 3 T. R. 662. (f) Aliter in some cases, as in another action after plea in abatement for nonjoinder, (ante, 651), or in action against executors or administrators (post). See a form of judgment in such a case, Chit. Forms, 333. (g) Jones v. Harris, 2 Str. 1101: Cressy (h) Biggs v. Benger, 2 Ld. Raym. 1372; (k) See post, 710. (1) Robarts v. Spurr, 3 Dowl. 551. (n) 1 & 2 V c. 110, s. 2. (o) Turnor v. Darnell, 7 Dowl. 346; 5 M. & W. 25, S. C. BOOK II. PART IV. How Signed. Entry of, nunc pro tunc. Continuances pp. 165, 197, 198, as to when the plaintiff may sign judgment. He cannot, in general, do so for want of a plea before the time for pleading is out. The judgment may be signed in vacation (p), but not on a dies non (q). If How Signed.] After entering an appearance for the defendant, (if none has been already entered (r)), then, if your judgment is to be interlocutory merely (s), make an incipitur of your declaration on plain paper, and an incipitur on a roll, which you may get at the master's office; take them to one of the masters, and he will sign the judgment (t). Having signed interlocutory judgment, you may proceed to sue out and execute your writ of inquiry, or obtain a rule to compute, (as the case may be), as directed in the next Chapter. your judgment is to be final (ante, 701), make an incipitur of your declaration on plain paper, and an incipitur on the roll; take the judgment paper and roll to one of the masters, and he will sign judgment, and tax the costs, and mark them on the judgment paper (u). If the defendant has appeared by himself or his attorney, give the usual one day's notice before taxing the costs, as directed post, Book IV. Part I. Ch. 31, title, "Costs." No rule for judgment is necessary in this case. If judgment is to be signed for want of a rejoinder or rebutter, &c., to a replication, or surrejoinder to a plea to the whole cause of action, this being deemed an abandonment of the plea, the plaintiff strikes out all the previous pleadings, and signs judgment as for want of a plea (x). By R. H., 4 W. 4, r. 3, “all judgments, whether interlocutory or final, shall be entered of record of the month and year, whether in term or vacation, when signed, and shall not have relation to any other day; provided that it shall be competent for the court or a judge to order a judgment to be entered nunc pro tunc" (y). Formerly, in the Queen's Bench, after judgment by default, unnecessary. and a writ of inquiry awarded, subsequent continuances, if any, were required to be entered on the roll (z), but not so in the Common Pleas (a); and now by rule of all the courts of H. T., 2 W. 4, r. 105, “after judgment by default, the entry of any subsequent continuances shall not be required." Costs. Costs.] The plaintiff is entitled to his full costs, upon judgment by default, in all cases where he would be entitled to damages if he obtained a verdict, by the stat. Gloucester (b); and this, although the damages given by the inquest upon the writ of inquiry be less than 40s.; for the statutes upon that subject extend to damages given by a jury only, and not to those given by an inquest. (See post, Book IV. Part I. Ch. 31, title, "Costs"). If there be two counts on distinct causes (p) R. T., 29 Car. 2, r. 5. (q) Harrison v. Smith, 9 B. & Cres. 243. (r) See Chit. Forms. 17. An appearance is so absolutely requisite that an interlocutory judgment signed without it would be a nullity. (Roberts v. Spurr, 3 Dowl. 551). (s) Ante, 701. (t) See the various forms of the entries of judgment by default, Chit. Forms, 328 to 333. And see the form of the jury process in these latter cases, where judg ment by default is only as to part or by one defendant. (Chit. Forms, 69, 70). (u) See the form of the entry of judg ment in debt, &c., Chit. Forms, 329. (x) Petre v Fitzroy, 5 T. R. 152. (y) See this rule noticed ante, Vol. I. 341. (2) Heydon's case, 11 Coke, Rep. 6 b. (a) Tidd, 9th ed. 678. (b) Post, Book IV. Part. I. Ch. 3. of action, and the defendant lets judgment go by default as to one, and obtains a verdict on the other, the plaintiff is entitled to costs on the former, and the defendant on the latter (c). If there be two defendants, however, one of whom pleads, and the other suffers judgment by default, if the plea pleaded be a complete bar to the action as against both defendants, it seems the plaintiff cannot have his costs against the defendant who suffered judgment by default (d). Therefore, where two of the three joint covenantors suffer judgment by default on counts on several deeds, and the third defends and succeeds on some counts, the plaintiff cannot hold his judgment on those counts against the other two; and, in such case, it has been held, that neither party is entitled to his costs on the counts on which the plaintiff fails (e). But where, in an action of assumpsit, one defendant suffered judgment by default, and the other obtained a verdict, it was held, that he who obtained the verdict was entitled to his costs (ƒ). And, in actions ex delicto, the plaintiff may retain his judgment against the defendant who suffered judgment by default (g), but the defendant who succeeds is entitled to his easts (h). (See further, post, Book IV. Part I. Ch. 31, title, Costs."). СНАР. 111. Execution.] The execution on a judgment by default is, in general, the same as in ordinary cases (i). In the case of bankruptcy, however, sometimes the plaintiff, on a judgment by default, cannot avail himself of it to the prejudice of other creditors (4). In actions of debt, within the statute 8 & 9 W. 3, c. 11, 8. 8, such as on a bond for the performance of covenants, for the payment of money by instalments, or of an annuity, or the like(), if the defendant suffer judgment to go by default, although in strictness this is a final judgment, and entered up for the entire penalty of the bond, yet the plaintiff cannot sue Execution. out execution for the sum recovered by the judgment, but he must suggest breaches upon the roll, from time to time, as they occur, and execute a writ of inquiry, in order to assess damages on them (m). Setting aside or wairing irregular Judgment.] If the judgment setting aside itself be irregularly signed, or if any of the previous proceedings or waiving Judgment. upon the part of the plaintiff be irregular, and the irregularity be not waived by any act of the defendant, or if judgment be signed when, in fact, the defendant has not been guilty of any default, the court on motion, or a judge on summons, will set it aside, or stay the proceedings, so as to give the defendant an opportunity to move the court for that purpose (n). (m) See Ibid. The ap (n) It has been doubted whether a judge at Chambers has power to set aside a judgment. (Rutty v. Arbur, 2 Dowl. 36: 5 Tyr. 591, S. C.) But the object is sufficiently obtained by an order to stay the proceedings, which affords an opportunity for a subsequent application to the court before execution can be sued out. (11 Petersdorff's Ab. 653: Tidd, 511: Bagley's Prac. 327). And, in practice, it is every day's occurrence for a judge at Chambers to set aside a judgment. BOOK IT. PART IV. Plaintiff may waive the Judgment. plication should be made within a reasonable time, and, at all events, not after the defendant has taken any fresh step after the knowledge of the irregularity (o). If the irregularity be in the delivery, filing, or notice of declaration, then an application, if possible, must be made at least two days before inquiry executed (p). Or if the writ of inquiry be executed in vacation, and the defendant intend applying to the court, notice of the motion should be given two days previously to the plaintiff's attorney or agent (7). And, in general, the time for making the application to set aside an interlocutory judgment for irregularity begins to run from the time that notice was received of judgment being signed, and the defendant cannot as of course delay the application until a rule to compute is served (r). It has been lately holden, that an interlocutory judgment cannot be set aside because the notice of declaration is irregular, as the defendant is bound to move to set aside the notice, and not wait until judgment has been signed (s). At all events, the application should be made before execution executed; and where the defendant had attended and cross-examined witnesses on executing a writ of inquiry, the court held it too late to move to set aside such judgment (t). Taxing costs, and signing final judgment, are considered as contemporaneous acts; and therefore the attendance of the defendant or his attorney before the master on taxing costs, is, in general, an admission that the judgment was properly signed, and it cannot afterwards be objected to as having been signed too soon (u). If the judgment be a nullity, and not merely irregular, the defendant will not waive it by any delay (x); an interlocutory judgment signed without an appearance entered, is a nullity (x). In setting aside a judgment and execution for irregularity, the rule will, in general, be absolute with costs, provided the defendant consents to the terms of bringing no action; but if the defendant will not consent to those terms, the court will not give costs, unless a strong case for damages be shewn (y), or the judgment and execution were against good faith (~). If the terms of bringing no action be not imposed by the court at the time of disposing of the rule, the defendant cannot afterwards be restrained from bringing an action (a). A defendant, on whose application a judgment has been set aside for irregularity in practice, without costs, cannot recover such costs as damages in an action of trespass, for taking his goods under colour of the judgment (b). The plaintiff, also, if he finds that he has signed judgment irregularly, may waive the judgment, by getting the master (0) R. H., 2 W. 4, г. 33: post, Book IV. Part I. Ch. 17. (p) 1 Sellon, 345: Minster v. Coles, 2 Chit. Rep. 237: Moses v. Richardson, 8 B. & C. 421: Scott v. Cogger, 3 Dowl. 212: Smith v. Clark, 2 Id. 218: Firley v. Rallett, Id. 708: Cox v. Tullock, Id. 478: vide Hill v. Mills, Id. 696. (q) Tidd, 513, 567: Gaire v. Goodman, (r) Grant v. Flower, 5 Dowl. 419. (u) Tidd, 9th ed. 930: Blackburn v. Kymer, 5 Taunt. 672; 1 Marsh, 278, S. C: Butler v. Bulkeley, 1 Bing. 233; 8 Moore, 104, S. C. (r) Roberts v. Spurr, 3 Dowl. 551. (y) Lorimer v. Lule, I Chit. Rep. 134, 238: Wentworth v. Bullen, 9 B. & C. 840, 849. (z) Cash v. Wells, 1 B. & Adol. 375: Abbott v. Greenwood, 7 Dowl. 534, per Patteson, J. (a) Abbott v. Greenwood, 7 Dowl. 534. (b) Loton v. Devereux, 3 B. & Adol. 343. In the case of a discharge of a defendant from arrest, the judge refused to give him costs, unless he would forego the action. (Ritchet v. Brevey, 1 C. & M. 755). to strike it out; and he may give notice thereof to the defendant's attorney, in order to prevent the expense of an application to the court (c); and he may, it seems, do this, even after application made to set aside the judgment, provided he pay the costs incurred by the defendant in consequence of the irregularity (d). Where the plaintiff gives notice to the defendant of abandoning a judgment by default irregularly signed, but does not actually strike it out, the defendant need not, it seems, apply to the court to set it aside; and, where it appeared that the defendant had not asked the plaintiff to strike out the judgment, Littledale, J., discharged a rule for that purpose, but without costs (e). CHAP. III. Judgment on Setting aside regular Judgment on Terms.] The court, Setting also, in some cases, on the defendant's application, will aside regular set aside a regular judgment, upon an affidavit of merits, Terins. if the plaintiff has not lost a trial (f). As it is wholly discretionary, however, in the court to do this or not, they will not set aside a regular judgment in order to give the defendant an advantage of any nicety of pleading (g), or of any matter which does not go to the merits of the cause (h): for instance, in an action on an attorney's bill, that no signed bill was delivered (i), or a special plea of questionable matter, designed to draw the plaintiff to demur (k). And the Court of Common Pleas have refused to set aside a regular judgment, where it appeared that the defendant had refused to accede to equitable terms of compromise (1). But a plea of the Statute of Limitations is now considered a plea to the merits; and therefore, in the Common Pleas, an interlocutory judgment was allowed to be set aside without restraining the defendant from pleading it (m). So the defendant may plead bankruptcy (n), or infancy (o). When the court set aside a regular judgment, it is usually on what upon the terms of the defendant's paying the costs of the Terms. application (p), pleading issuably instanter, (which means on the same day at all events) (7), taking short notice of trial (r), and giving judgment of the term (s), or of a particular day, when necessary; thereby placing the plaintiff in the same situation as though the judgment had not been set aside (t); and in some cases, also, they will order the defendant to bring the money into court (u); and in all cases of regular judgment will restrain him from bringing an action. "Merits" The affidavit of merits must, in terms, state that the defendant has "a good defence to this action upon the merits" (x); must be sworn and must be made, either by the defendant himself or his (e) Imp. B. R. 494, n. (d) See post, Book IV. Part I. Ch. 17: and see Beeston v. Beckett, 4 M. & R. 100: Ca. Prac. C. B. 124. (e) Robinson v. Studdart, 5 Dowl. 266. (f) Wood v. Cleveland, 2 Salk. 518: Sisted v. Lee, 1 Salk 402. g) Fortes v. Middleton, 2 Str. 1242. (h) Willet v. Atterton, 1 W. Bla. 35: but see as to Statute of Limitations, Maddocks v. Holmes, infra. (1) Beck v. Mordaunt, 2 Bing. N. C. 140; 4 Dowl. 112, S. C. (k) Wood v. Cleveland, 2 Salk. 318. Anon, 4 Taunt. 885. (0) Delafield v. Tanner, 5 Taunt. 856; (p) Sisted v. Lee, 1 Salk. 402: see Prud- (r) Matthews v. Stone, Barnes, 242. (t) See Smith v. Blundell, 1 Chit. Rep. to. |