nature of the contract, the amount must of necessity be uncertain, then, though the action be in debt, there must be a writ of inquiry to reduce it to a certainty (z). Thus, in an action of debt for use and occupation on a quantum meruit, after judgment by default, a writ of inquiry would, perhaps, be necessary before signing final judgment (y); and in an action on the stat. 2 & 3 Ed. 6, c. 13, for not setting out tithes, there must, it seems, be a writ of inquiry to ascertain the value of the tithes; so, in an action of debt for foreign money, a jury must find the value of the money (z). And it seems, that in any case where the plaintiff is uncertain as to the amount of his demand, there is no objection to his signing interlocutory judgment, and executing a writ of inquiry, instead of signing final judgment in the first instance (a). CHAP. IV. SECT. 1. 8 & 9 W. 3, In debt on bond, conditioned for the payment of an annuity, In Debt on or of money by instalments, or for the performance of cove- Bond, within nants, or of an award, or of any other specific act, although e. 11. judgment by default be entered up for the amount of the penalty, yet a writ of inquiry must afterwards be executed, in order to ascertain what damages the plaintiff may have actually sustained by the breach of covenant, &c., complained of (b). This, however, does not extend to bail-bonds, replevin-bonds, bonds of petitioning creditors, or bonds for the payment of a sum of money in gross, or other bonds named post, 723. assess Da And, lastly, where the jury, on a trial at Nisi Prius, or Where the before the sheriff under the 3 & 4 W. 4, c. 42, or at bar, act Jury omit to as an inquest-as, where they are to assess contingent da- mages. mages on a demurrer, or where they are to assess damages on a judgment by default, as to some of the counts of the declaration (c), or where a demurrer to evidence is put in at the trial (d), and the jury omit to assess the contingent damages on the demurrer, or the damages on the judgment by default; or where, in trespass or replevin against an overseer of the poor, the plaintiff is nonsuit, or the defendant has a verdict, and the jury omit to inquire of the treble damages given to the defendant in such a case by stat. 43 Eliz. c. 2, 8. 19 (e); or where, in quare impedit, the jury, after finding for the plaintiff, omit to inquire of the value of the living, &c. (f);-in all these cases, the omission of the jury to assess the damages may afterwards, upon application to the court, be supplied by a writ of inquiry; and the same in all other cases where an attaint would not lie (g). But whenever an attaint (now abolished by the stat. 6 G. 4, c. 50, s. 60) would have lain, if the jury had assessed the damages,—as in an ordinary personal action, and the jury find a verdict for the mon v. Sheridan, 8 T. R. 395: see ante, 709. (2) See per Bayley, J., Weald v. Brown, 2 C. & J. 673. () Arden v. Connell, 5 B. & Ald. 885. (2) Arien v. Connell, 5 B. &. Ald. 885; 1 D. & R. 529, S. C.: Brill v. Neele, 1 Chit. Rep. 627; 3 B. & Ald. 208, S. C., not S. P.: Bale v. Hodgetts, 1 Bing. 182; 7 Moore, 602. 8. C.: M Kenzie v. Gayford, 5 Dowl. 403: ante, 709. (a) M'Kenie v. Gayford, 5 Dowl. 403. (b) 8 & 9 W. 3, c. 11, s. 8. (c) See ante, 700, 710: and Townshend (d) Darrose v. Newbott, Cro. Car. 143. (f) 10 Co. 118: 1 Tidd, 9th ed. 575. BOOK II. In case of Judgment non obstarte plaintiff, but omit to assess the damages (h); or where issue is joined upon a plea in abatement, and the jury, upon finding for the plaintiff, omit to assess the damages (i)-the omission cannot be supplied by a writ of inquiry (). Also, in a replevin for a distress for rent, if the jury find for the defendant, but omit to inquire of the arrears of rent, in pursuance of stat. 17 C. 2, c. 7, this omission cannot be remedied by a writ of inquiry; because the statute requires that the inquiry be made by the same jury who try the issue (1). And in this last class of cases the proper course is to award a venire de novo, as to which, see post, Book IV. Part I. Ch. 27, title, "New Trial." Therefore, where, in an action for a libel, the defendant pleaded the general issue, and nine special pleas, and a verdict was found for the plaintiff on the first issue, and on two of the special pleas, without any damages, and for the defendant on the remaining seven pleas, and the court, upon motion, awarded a writ of inquiry to assess the plaintiff's damages, on which judgment was entered up for the damages found on the inquisition; a writ of error being afterwards brought in the Exchequer Chamber to reverse the judgment as to the award of the writ of inquiry, that court, holding the verdict on these issues to be void, no damages having been assessed, ordered a venire de novo to be awarded to try the first issue, and also the last, so far as related to the two pleas on which the verdict for the plaintiff had been found (m). It has been holden, that where a verdict for the plaintiff is void, but the defendant's plea amounts to a confession, the veredicto, &c. court will give judgment upon this confession, and award a writ of inquiry to ascertain the plaintiff's damages (n). Where the plaintiff obtains judgment non obstante veredicto, he may execute a writ of inquiry, as of course, without applying to the court (o). Award of. Award of.] Where a writ of inquiry is allowable and necessary, an award of it follows immediately after the entry of the interlocutory judgment, thus:-But because it is unknown to the court here what damages the plaintiff hath sustained by means of the premises," [or where the inquiry is to extend only to some of several counts, they must be particularized, as thus: by means of the not performing the said promises in the said first and second counts mentioned" (p)], "the sheriff is commanded, that, by the oath of twelve good and lawful men of his bailiwick, he diligently inquire," &c. (g). If the award of the writ of inquiry on the roll be right, the teste of the writ, if wrong, may be amended by it(). Where a writ of error is brought in the House of Lords upon a judgment for the defendant, and the judgment is reversed, a writ of inquiry is awarded by the court in which the original judgment (h) Clement v. Lewis, 3 B. & B. 297; 7 (k) See Eichorn v. Le Maitre, 2 Wils. (1) Herbert v. Waters, 1 Salk, 205: 1 L. Raym. 59, S. C.: see Freeman v. Archer, 2 W. Bl. 763. (m) Lexis v. Clement, 3 B. & Ald. 702: and see Clement v. Lewis, 3 B. & B. 297; 7 Moore, 200, S. C. (n) Lacy v. Reynolds, Cro. EL 214: Jones v. Bodinner, Carth. 370. (0) Shephard v. Halls, 2 Dowl. 339. (r) See Johnson v. Toulmin, 4 East, 173: Pippet v. Hearne, 1 D. & Ry. 266, 271: per Bayley. J., 5 B. & Ald. 634, S. C.: post, Book IV. Part I. Ch. 28. remains to ascertain the plaintiff's damages, the House of CHAP. IV. Lords having no power to award a writ of inquiry (8). SECT 1. and left with How Sued out and left with the Sheriff.] Engross the writ How sued out on plain parchment; get it sealed by the sealer of the writs. the Sheriff. It need not be signed in the Court of Queen's Bench, but it should be so in the Common Pleas or Exchequer; therefore, in either of those courts, get it also signed by one of the masters (t). Indorse on it a memorandum of the day on which it is to be executed; and leave it at the sheriff's office the day before, at latest (u); the sheriff will thereupon summon a jury for the execution of it. cuted. Before whom to be Executed.] The writ is usually executed Before whom before the sheriff or his deputy (x). It may, however, under to be exespecial circumstances, by leave of the court, be executed before the chief justice, if the venue have been laid in Middlesex or London; or by leave of the court or a judge, before a judge of assize as an assistant to the sheriff, if the venue were laid in any other county (y). It is only, however, where some difficult point of law is likely to arise in the course of the inquiry, or where the facts are important, that the court or a judge will grant this indulgence; and the mere importance of the facts will not, it seems, induce the court to grant it, when the venue is laid in Middlesex or London (2); for the under-sheriff of Middlesex, and the secondary in London, are generally men of experience, and fully competent to conduct a business of this kind. By the 3 & 4 W. 4, c. 42, s. 22, the court or a judge may, in a local action, order the inquiry to be executed in another county than that in which the venue is laid, and for that purpose may order a suggestion to be entered on the record, that the inquiry may be more conveniently executed in the other county. cuted before An application to have a writ of inquiry executed before Motion to the chief justice must, it seems, be made to the court in term have it exe. time. For this purpose, make an affidavit of the circumstances, the Chief and give it to counsel with a motion paper, to move for a rule Justice. nisi; draw up the rule with one of the masters, and serve a copy of it on the opposite attorney; and afterwards move to make it absolute upon an affidavit of service (a). Draw up the rule with one of the masters, prepare the writ of inquiry as in ordinary cases, annex the rule to it, and leave it at the sheriff's office. You then enter the cause with the marshal, in the same manner as if it were a record, and pay him the same fees (b). The sheriff afterwards returns the inquisition as in other cases. size. If the inquiry is to be before a judge of assize, application Before a may be either to the court in term time, or to a judge in Judge of Asvacation: if to the court, it is made in the manner above directed; if to a judge in vacation, get a motion paper signed by counsel, and take it, together with the affidavit above mentioned, to the judge's chambers, and the judge will grant his fiat to one of (a) Vicare v. Haydon, Cowp. 843. See nell, 2 Wils. 378. y) See Anon., 12 Mod. 610. (a) 1 Sellon, 344. (a) Sce the forms, Chit. Forms, 337. BOOK II. the masters to draw up the rule (c). Take the motion paper PART IV. and fiat to one of the masters, and draw up the rule, and proceed as is above directed. Order for a good Jury. Notice of executing the Inquiry. To whom given. How long. Order for a good Jury.] When the writ of inquiry is to be executed before the chief justice or a judge of assize, it is not unusual, and in general it is better, to obtain a judge's order (d) for the sheriff to return a "good jury," which is a better sort of jury taken from the special jury book (e). The costs of this good jury are now usually allowed to the. plaintiff (f). Notice of Executing the Inquiry.] The plaintiff must give a written notice of executing the writ of inquiry to the defendant himself, if he have no attorney in the cause, or otherwise to the defendant's attorney (g). But if the attorney be not known, it may be given to the defendant himself. By R. H., 2 W. 4, r. 57, “notice of trial and inquiry, and of continuance of inquiry, shall be given in town; but countermand of notice of trial or inquiry may be given either in town or country, unless otherwise ordered by the court or a judge”(h). It must, it seems, be given to all the defendants, if there be more than one (?), or left at their last or most usual place of abode (j). Notice of inquiry has been allowed to be served by sticking it up in the office, and leaving it at the defendant's last place of abode; though neither the process nor notice of declaration had been personally served (Z). If the writ is to be executed in London or Middlesex, and the defendant lives within forty computed miles of London, eight days' notice must be given, which must be computed exclusive of the day of giving the notice, and inclusive of the day of executing the inquiry (7). But fourteen days' notice is required if the defendant resides at a greater distance, the same as a notice of trial (m). If the writ is to be executed in any other county, eight days' notice is sufficient (n). In replerin there should be fifteen days' notice of inquiry under 17 C. 2, c. 7, s. 2(o). Sunday, Christmas-day, Good Friday, or a day appointed for a public fast or thanksgiving, is reckoned as one of the days, unless it be the last day (p). And the intervening days between Thursday next before and Wednesday next after Easter-day are reckoned in notices of inquiry, although not in other proceedings (q). A defendant residing at an hotel in London, from the time of his arrest (e) See the forms, Chit. Forms, 337. (e) See Price v. Williams, 5 Dowl. 160. (g) Ante, 208: Moseley v. Sanford, Barnes, 311: Pr. Reg. 276: Harding v. Stafford, Say. 133: Knibbs v. Hopcraft, 10 Price, 147: Brooks v. Till, 2 Y. & J. 276. See the form, Chit. Forms, 338. (h) See Hodges v. Perkins, 3 East, 568; Barnes, 306: and see this rule commented on, ante, Vol. 1. 208. (i) Pr. Reg. 443: sed vide Figgins v. Ward, 2 Dowl. 364. (j) See R. T., 1 G. 2: and ante, 208. (k) Watson v. Delcroia, 2 Dowl. 396. () R. M., 4 A. c: R. H., 2 W. 4, r. 8, ante, 93. (m) Ante, 205, 207: see Stevens v. Pell, 2 Dowl. 355. (n) R. M., 4 A. c: R. H., 39 G. 3, Exch. (0) Burton v. Hickey, 6 Taunt. 57; 1 Marsh, 444, S. C. (p) R. M., 4 A. c: R. H., 2 W. 4, r. 8, ante, 93, 207. (9) R. E., 2 W. 4, r. 1, ante, 93. till he was served with notice of inquiry, was holden not entitled to more than eight days' notice in a town cause, though his general residence was above forty computed miles from London (r). Also, where the defendant resides within forty miles of London before and at the commencement of the action, eight days' notice of executing the writ of inquiry is sufficient, though the defendant has, in the intermediate time, removed permanently to a distance of above forty miles from London, provided he has not given the plaintiff notice of his removal, in which case he would be entitled to fourteen days' notice(s). If he reside above forty miles from London, he will be entitled to fourteen days' notice, although he may be in London when the notice is served (t). Where a defendant is master of a vessel, and resides on board, and has no home on shore, he is considered to reside where his ship is registered ; and if more than forty miles from London, is entitled to fourteen days' notice of executing a writ of inquiry (u). And, in general, the same rules that are applicable to notices of trial are equally applicable to notices of inquiry (r). If the defendant be under terms to take "short notice" of inquiry, this is the same as short notice of trial, namely, four days in country causes, and two days in town causes(x). But being under terms to take short notice of trial does not bind the defendant to take short notice of inquiry (y). CHAP. IV. SECT. 1. cessary. A term's notice of inquiry is also necessary in cases where Term's Noa term's notice of trial would be required if the cause had pro- tice, when neceeded to trial (z). By R. H., 2 W. 4, r. 52, (ante, 210), "such notice may be given at any time before the first day of term." It is usual to give the notice on a separate piece of paper: Notice, how but by the rule of H. T., 2 W. 4, r. 59, "in all cases where the given. plaintiff in pleading concludes to the country, the plaintiff's attorney may give notice of trial at the time of delivering his replication or other subsequent pleading; and, in case issue shall afterwards be joined, such notice shall be available; but if issue be not joined on such replication or other subsequent pleading, and the plaintiff shall sign judgment for want thereof, and forthwith give notice of executing a writ of inquiry, such notice will operate from the time that notice of trial was given, as aforesaid; and in all cases where the defendant demurs to the plaintiff's declaration, replication, or other subsequent pleading, the defendant's attorney, or the defendant, if he plead in person, shall be obliged to accept notice of executing a writ of inquiry, on the back of the joinder in demurrer; and in case the defendant pleads a plea in bar or rejoinder, &c., and the plaintiff demurs, the defendant's attorney, or the defendant, if he plead in person, shall be obliged to accept notice of executing a writ of inquiry on the back of such demurrer” (a). (r) Lloyd v. Hoo er, 7 East, 624. (Rochfurt v. Robertson, 12 East, 427: Spencer v. Hall, 1 East, 688: Brind v. Torris, 2 W. BL. 1205. (t) Blaaw v. Chaters, 6 Taunt. 445; 2 Marsh. 151, S. C. (u) See Blaaw v. Chaters. 6 Taunt. 453; 2 Marsh, 151, S. C.. and Vol. I. 205. (c) MS., H. 1820. (z) See Vol. I. 205: Blaaw v. Chaters, 6 Taunt 458; 2 Marsh, 151, S. C. (y) Stevens v. Pell, 2 Dowl. 355; 2 C. & M. 421, S C (2) Peyton v. Burdus, 2 Str. 1100: see Smith v. Paull, 3 Smith, 101: and see ante, 210. See the form, Chit. Forms, 52. (a) See ante, 197, 661. |