he ought to have recommended the plaintiff to submit to a nonsuit, the court above will direct a nonsuit. But, if no point have at the time of trial been reserved by the judge, then the court in banc has no such authority, and can do no more than refer the case to a fresh jury, by making a rule for a new trial absolute. A motion for a venire de novo, is a proceeding very similar to that for a new trial, and its effect, if granted, is identical; for, when a venire de novo is awarded, another trial of the cause is had, as if a rule for a new trial had been made absolute: and, indeed, the very name of the proceeding itself so signifies, for the words venire de novo mean no more than that a new venire (which is the first of the two writs constituting the jury process) is to be directed to the sheriff. Still there are several distinctions between a motion for a venire de novo, and for a new trial. The new trial is grantable for any reason which renders it right, fit, and just, that the first verdict should undergo revision. And, though, in some cases, for instance those of misdirection, or the improper admission or exclusion of evidence, a new trial is a matter of right; still there are also many cases in which it lies in the absolute discretion of the court to grant or refuse it; or, if they grant it, to modify the rule by which they do so, by introducing such conditions as they deem proper. But it is otherwise with the award of a venire de novo, which is a proceeding far more ancient than the motion for a new trial. In cases where it is grantable, the court is bound to grant it, and can exercise no dis cretion on the subject. But then those cases are comparatively few in number, and the grounds for awarding it are not, as in many of the instances in which a new trial is granted, of an equitable description, but are of a more technical sort-such as the wrongful disallowance of a challenge, or some defect in the wording of the verdict, which renders it uncertain and ambiguous. Nor can the court, as in the case of a new trial, impose any condition on the party claiming the venire de novo, or exercise any discretion as to costs. (1) A motion for judgment non obstante veredicto, is one which, it is said in the late case of Rand v. Vaughan, 1 Bing. N. C. 767, can only be made by a plaintiff. The lord chief justice there states that there is no instance to be found in any of the books of such a judgment having awarded at the instance of a defendant. It is given when, upon an examination of the whole pleadings, it appears to the court that the defendant has admitted himself to be in the wrong, and has taken issue on some point which, though decided in his favour by the jury, still does not at all better his case. A motion in arrest of judgment is the exact reverse of that for judgment non obstante veredicto. The applicant in the one case insists that the plaintiff is entitled to the judgment of the court, although a verdict has been found against him. In the other case, that he is not entitled to the judgment of the (1) See Edwards v. Burn, 1 Tyrwh. 281. 132 ARREST OF JUDGMENT-REPLEADER. court, although a verdict has been delivered in his favour. Like the motion for judgment non obstante veredicto, that in arrest of judgment must always be grounded upon something apparent on the face of the pleadings; for instance, if in an action against the indorser of a bill of exchange, the plaintiff were to omit to allege in his declaration that the defendant had notice of dishonour, judgment would be arrested even after a verdict in his favour. (1) A motion for a repleader becomes necessary where it appears that, in the course of pleading, the parties have so mistaken the true question in the case, that they have raised an issue, which for whomever it may be found, will not decide the cause either one way or the other. In such case as the verdict leaves it totally in dubio which party will ultimately prove entitled to recover, the only course by which the true state of the merits can be ascertained, is to award a repleader, that is, to direct that the parties shall begin again at that part of the pleadings in which the mistake which led to the immaterial issue was committed, and replead till they have arrived at one more fitted to decide the cause. When it becomes necessary to take this course, as both parties are in fault, neither is entitled to the costs of the proceedings which have turned out useless. (2) If no one of the above applications be successfully (1) See Rushton v. Aspinall, Dougl. 679, which was in error, but a fortiori judgment would have been arrested. (2) See Plummer v. Lee, 2 Mee. & W. 495. JUDGMENT-FINAL-INTERLOCUTORY. 133 made, the next occurrence in the suit is Judgment. This is the sentence of the law upon the matter appearing from the previous proceedings in the suit; and, unless the court be equally divided in opinion, in which case no judgment can be given, it is for the plaintiff, by the defendant's confession (1) or default; (2) for the defendant upon nonsuit, or, as in case of nonsuit, (3) non pros., (4) retraxit, nolle prosequi, (5) discontinuance, (6) or stet processus; (7) and for either party upon demurrer, issue of nul tiel record (8) or verdict. Judgments are either interlocutory or final. Interlocutory judgments are occasionally given upon some plea, proceeding, or default occurring in the course of the action, and which does not terminate the suit. Of (1) See ante, p. 73. (5) A retraxit, or nolle prosequi, is where the plaintiff of his own accord declines to follow up his action. The difference between them is, that a retraxit is a bar to any future action for the same cause; whereas a nolle prosequi is not, unless made after judgment. Bowden v. Horne, 7 Bing. 716; 1 Wms. Saund. 207, n. (6) A plaintiff sometimes, when he finds that he has misconceived his action, obtains leave from the court to discontinue, on which there is a judgment against him, and he has to pay costs; but he may commence a new action for the same cause. (7) A stet processus is entered, where it is agreed, by leave of the court, that all further proceedings shall be stayed; though in form a judgment for the defendant, it is generally, like discontinuance, in point of fact for the benefit of the plaintiff, and entered on his application, as for instance, where the defendant has become insolvent, it does not carry costs. (8) Ante, p. 88. this nature are judgments on demurrer to certain dilatory pleas called Pleas in Abatement. But the most common kind of interlocutory judgments are those which are given when the right of the plaintiff is indeed established, but the quantum of damages sustained by him is not ascertained, which is a matter that cannot be done without the intervention of a jury: this happens when the defendant suffers judgment by default, or confession, or upon a demurrer; in any of which cases, if a specific ascertained demand be sued for, the judgment is final, because then there can be no doubt as to what the plaintiff ought to recover; but, if the demand be of damages, unless the defendant will admit that they amount to the whole sum laid in the declaration, a jury must be called on to assess them; therefore the judgment given by the court, and entered on the record in such a case, is, that the plaintiff ought to recover his damages; but because the court knows not what damages he has sustained, the sheriff is commanded to inquire by a jury, and return the inquisition into court. The process directed to the sheriff for this purpose is called a Writ of Inquiry, in the execution of which the sheriff sits as judge, and tries the amount of damages by a jury; and, when he has returned his inquisition to the court, final judgment is given that the plaintiff do recover the amount assessed. In some cases, indeed, where, though the form of action be for damages, yet it is easy to compute precisely what those damages must amount to, as where the action is brought on a bill of exchange, the court will order |