may issue (u); or in an action of dower unde nihil habet (x). In replevin, where the plaintiff is nonsuited or has verdict Replevin. against him, the defendant cannot have judgment under 17 Car. II. c. 7, for the arrear of rent, or the value of the distress, unless the jury empannelled to try the issue shall have inquired into the amount (y). But in every other case of replevin, the omission of the jury to find damages for the defendant, whether under statutes 7 H. VIII. c. 4, and 21 H. VIII. c. 10, or under 43 Eliz. c. 2, sect. 19, may be remedied by a writ of inquiry (z). Of course where an act, authorising a distress for local purposes, gives the avowant no damages in case of success, no inquiry is required, or can take place (a).

Where the plaintiff has a verdict in detinue, the jury should Detinue. assess the value of each article separately (b), and if they do not, a writ of inquiry cannot supply the defect (c). But it would appear that the rule may be otherwise where there is a judgment by default. The latter point arose in a recent case. In an action of detinue, judgment had gone by default. The plaintiff sued out a writ of inquiry, and the jury taxed damages for the detention, but not the value of the goods. Final judgment was issued for a restitution of the goods, or their value (not stating any), and for damages and costs. On error it was held, first, that the judgment, though imperfect, was still final, and consequently a remittitur could not be entered. Secondly, that though probably the Court below might have awarded a fresh writ of inquiry, the Court of Error could not do so, as they had no authority to amend the judgment against the plaintiff in error in favour of the defendant in error (d). Thirdly, that the Court of Error could

(u) Darrose v. Newbott, Cro. Car. 43; Sir James Harbert's case, Skinn. 595.

(x) Say. Dam. 126.

(y) See ante, p. 320.

(z) Gilb. Distress, 193; Harcourt v. Weeks, 5 Mod. 77; Herbert v. Waters, Carth. 362; Dewell v. Marshall, 3 Wils. 442; Valentine v. Fawcett,

2 Stra. 1021; and see Wright v. Lewis, 9 Dowl. 183.

(a) Gotobed v. Wool, 6 M. & S. 128.

(b) Pawly v. Holly, 2 W. Bl. 853.

(c) 10 Rep. 119, b; Herbert v. Waters, 1 Salk. 205.

(d) But now Courts of Error have in all cases power to give such judgment, and award such process, as the Court from which error is brought ought to

not divide the judgment, so as to allow the plaintiff below to take out execution for his damages and costs alone. sequently judgment was reversed (e).

Con

have done, without regard to the party alleging error, Common Law Procedure Act, 1852, s. 157.

(e) Phillips v. Jones, 15 Q. B. 869,

CHAPTER XIX.

POWERS OF THE COURT OR JUDGE ÎN REGARD TO DAMAGES.

1. Right to Begin.

2. Directing the Jury.

3. Amending the Postea.

4. Increasing or Abridging Da

mages.

5. New Trial.

THE last subject we have to consider is the part which may be taken by the Court or a judge in respect to damages; their duties and their powers. It will be found that very important functions of this sort may be exercised, both during and after trial.

1. A matter of very considerable importance to the plaintiff Right to begin. in many cases, is the right to begin. Many of the principles upon this point are quite unconnected with the topics discussed in this treatise. There is one, however, directly relevant, viz., the rule, that no matter on whom the proof of the issue may be thrown by the pleadings, the plaintiff must begin whenever he proceeds for unascertained damages (a). When, however, the affirmative issue rests in other respects upon the defendant, if the plaintiff's counsel will not undertake to offer proof of substantial damages, the right to commence then passes to the defendant (b). But, even where the judge has ruled wrongly upon this point, a new trial will not be granted, unless manifest injury has been done to the party against whom he decided (c).

2. Another imperative duty resting upon the judge at Nisi Directing the Prius is to direct the jury as to any rule of law by which they

(a) Mercer v. Whall, 5 Q. B. 447; Edge v. Hillary, 3 C. & K. 43.

(b) Chapman v. Rawson, 8 Q. B. 673.

(c) Edvards v. Matthews, 4 D. & L. 721; Brandford v. Freeman, 5 Exch. 734.

jury.

Powers of amendment.

Application
must be made to
the judge who
tried the cause.

ought to be governed in their assessment of damages. Any omission, mistake, or indefiniteness in this respect, in conse quence of which the jury have gone astray, will be set right by a new trial (d), and this whether the point has been taken at the time of trial by counsel or not (e).

3. It sometimes becomes most important to procure an amendment of the postea; as, for instance, where the officer of the Court had entered nominal damages by mistake, where substantial had been given (ƒ), or where the declaration laid the damages at 1007., and in the Nisi Prius record they were stated to be 100s. (g), or where the jury have not assessed the value of the articles separately in detinue (h), or where general damages have been assessed upon a declaration in which some counts are bad (i). The rule upon this latter point has been laid down as follows. "If there is only evidence at the trial upon such of the counts as were good and consistent, a general verdict might be altered from the notes of the judge, and entered only on those counts. But if there is any evidence which applies to the other bad or inconsistent counts (as, for instance, in an action for words, where some actionable words are laid, and some not actionable, and evidence given of both sets of words, and a general verdict); there the postea cannot be amended, because it would be impossible for the judge to say on which of the counts the jury had found the damages, or how they had apportioned them. In such a case the only remedy is by awarding a venire de novo" (k).

Formerly it seems that the practice was to apply to the Court in which the record was, to make the required amend

(d) Blake v. Midland Ry. Co., 18 Q. B. 93; Hadley v. Baxendale, 9 Exch. 341.

(e) Knight v. Egerton, 7 Exch. 407.

(f) Newcombe v. Green, 2 Stra. 1197.

(g) 8 Rep. 157, a.

(h) Sandford v. Alcock, 10 M. & W. 689.

(i) Eddowes v. Hopkins, 1 Dougl. 377.

(k) Per Buller, J., ubi sup. In Williams v. Breedon, 1 B. & P. 399, 1 was held, that where damages were assessed generally on several counts, est of which was bad, the postea might be amended from the judge's notes, ent though evidence applicable to the bad counts had been given, if it appeared in fact, that the jury had calculated damages on evidence only applicable t the good counts. But this decision must be considered as overruled, Spencer v. Goter, 1 H. Bl. 78; Empson v. Griffin, 11 A. & E. 186; Reg. v. Virrir, 12 A. & E. 331.

Court has no

final.

ment (7). The modern practice, however, has long established that the proper course is to apply to the judge who tried the cause, in order that he may amend such entry by making it conformable with what took place at the trial (m). And his His decision is determination cannot be reviewed, because the power to compel a production of his notes (n). And for the same reason, the Court cannot amend a postea by the notes of an arbitrator (0). The only remedy in a case where such an amendment has been wrongly made, is to induce the judge who tried the cause to rescind his own order (p).

Perhaps, however, this rule may extend no further than the reason given for it. In one case, where by consent at trial the plaintiff had entered his verdict on two counts, and then applied to the judge to confine it to one, he refused, but referred the case to the Court, to which he transmitted his notes. The Court made the proposed amendment. Tindal, C. J., said, "If, indeed, damages could have been given on the second count which could not have been given on the first, we should not do what is requested without the concurrence of the judge who tried the cause; but looking at the two counts we perceive that the cause of action in both is the same; the charters set out are the same; and the damages given must have been on the same account. The two counts are merely different modes of stating the same cause of action" (q). Here it is plain that their decision did not rest upon the judge's notes, and could not have been impeded had those notes been withheld.

The application may, however, be made to the judge in Court, that he may have the assistance of the other judges (r);

(1) Eliot v. Skypp, Cro. Car. 338; Hankey v. Smith, Barnes, 449; Mayo v. Archer, 1 Stra. 513; Newcombe v. Green, 2 Stra. 1197; Spencer v. Goter, ubi sup.; Eddowes v. Hopkins, ubi sup. ; Petrie v. Hannay, 3 T. R. 659; Williams v. Breedon, ubi sup.

(m) Newton v. Harland, 1 M. & Gr. 958; Ernest v. Brown, 4 Bingh. N. C. 162; Scougull v. Campbell, 1 Chitt. 283.

(n) Sandford v. Alcock, 10 M. & W. 689; Graham v. Bowham, 1 Chitt. 284, n.; Blair v. Street, 2 Ad. & Ell. 329; Newton v. Harland, ubi sup. ; Daintry v. Brocklehurst, 3 Exch. 691. Contra, Empson v. Griffin, 11

A. & E. 186.

(0) Scougull v. Campbell, ubi sup.

(p) Kilner v. Bailey, 5 M. & W. 385.

(q) Henley v. Mayor of Lyme Regis, 6 Bingh. 100. (r) Harrison v. King, 1 B. & A. 163.