process is called a writ of inquiry: in the execution of which the sheriff sits as judge, and tries by a jury, subject to nearly the same law and conditions as the trial by jury at nisi prius, what damages the plaintiff hath really sustained; and when their verdict is given, which must assess some damages, the sheriff returns the inquisition, which is entered upon the roll in manner of a postea; and thereupon it is considered, that the plaintiff do recover the exact sum of the damages so assessed. In like manner, when a demurrer is determined for the plaintiff upon an action wherein damages are recovered, the judgment is also incomplete, without the aid of a writ of inquiry.5 5 †Final judgments are such as at once put an end to the action, by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. In which case if the judgment be for the plaintiff, it is also considered that the defendant be either amerced, for his wilful delay of justice in not immediately obeying the king's writ by rendering the plaintiff his due; or 5 to be taken up, capiatur, to pay a fine to the king, in case of any forcible injury. Though now by statute 5 & 6 W. & M. c. 12. no writ of capias shall issue for this fine, but the plaintiff shall pay 68. 8d., and be allowed it against the defendant among his other costs. And therefore in judgments in the court of common pleas they enter that the fine is remitted, and in the court of king's bench they now take no notice of any fine or capias at all. [399] But h 5 Rep. 40. k Salk, 54. Carth. 390. 5 Prior editions have, "(but to what amount they please.)" 5 Prior editions have, "into court." 5 Previously, "till a writ of inquiry is awarded to assess damages and returned; after which the judgment is completely entered." *-* Quoted, 41 Ga. 79; partly, 3 Colo. 277. Cited, 28 Conn. 91; 43 Conn. 598. +-+ Quoted, 7 Conn. 446; 40 Ga. 320; 18 Mon. B. 827; 7 Bush, 625; partly, 41 Mass. 300; 8 Ohio, 141. Cited, 3 Ala. 226; 7 Conn. 441; 17 Conn. 72; as to judgment for costs, 3 Neb. 255. if judgment be for the defendant, then it is considered, that the plaintiff and his pledges of prosecuting be (nominally) amerced for his false suit, and that the defendant may go without a day, eat sine die, that is, without any farther continuance or adjournment; the king's writ, commanding his attendance, being now fully satisfied, and his innocence publicly cleared. Thus much for judgments; to which costs are a necessary appendage; it being now as well the maxim of ours as of the civil law, that "victus victori in expensis condemnandus est." m *Though the common law did not professedly allow any, the amercement of the vanquished party being his only punishment. The first statute which gave costs, eo nomine, to the demandant in a real action was the statute of Gloucester, 6 Edw. I. c. 1. as did the statute of Marlbridge, 52 Hen. III. c. 6. to the defendant in one particular case, relative to wardship in chivalry: though in reality costs were always considered and included in the quantum of damages, in such actions where damages are given; and, even now, costs for the plaintiff are always entered on the roll as increase of damages by the court. But, because those damages were frequently inadequate to the plaintiff's expences, the statute of Gloucester orders costs to be also added; and farther directs, that the same rule shall hold place in all cases where the party is to recover damages. And therefore in such actions where no damages were then recoverable (as in quare impedit, in which damages were not given till the statute of Westm. 2. 13 Edw. I.) no costs are now allowed;" unless they have been expressly given by some subsequent statute. The statute 3 Hen. VII. c. 10. was the first which allowed any costs on a writ of error. But no costs were allowed the defendant in any shape, till the statutes 23 Hen. VIII. c. 15. 4 Jac. I. c. 3. 8 & 9 W. m Cod. 3, 1, 13. o 10 Rep. 116. **Quoted, with an omission, 4 Binn. 18; partly, 48 N. H. 372, Cited, 11 Ohio St. 4638; 106 Pa. St. 348; 2 Munf. 48; 2 Wood. & M. 69. III. c. 11. and 4 & 5 Ann. c. 16. which very equitably gave the defendant, if he prevailed, the same costs as the plaintiff would have had, in case he had recovered.* These costs on both sides are taxed and moderated by the prothonotary, or other proper officer of the court. [400] †The king (and any person suing to his use?) shall neither pay, nor receive costs; for, besides that he is not included under the general words of these statutes, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them.† And it seems reasonable to suppose, that the queen-consort participates of the same privilege; for, in actions brought by her, she was not at the common law obliged to find pledges of prosecution, nor could be amerced in case there was judgment against her. In two other cases an exemption also lies from paying costs. Executors and administrators, when suing in the right of the deceased, shall pay none:+ for the statute 23 Hen. VIII. c. 15. doth not give costs to defendants, unless where the action supposeth the contract to be made with, or the wrong to be done to, the plaintiff himself.5 And paupers, that is such as will swear themselves not worth five pounds, are, by statute 11 Hen. VII. c. 12. to have original writs and subpanas gratis, and counsel and attorney assigned them without fee; and are excused from paying costs, when plaintiffs, by the statute 23 Hen. VIII. c. 15. but shall suffer other punishment at the discretion of the judges. And it was formerly usual to give such paupers, if nonsuited, their election either to be whipped or pay the costs: though that practice is now disused. It seems however agreed, that a p Stat. 24 Hen. VIII. c. 8. r Cro. Jac. 229. 1 Vent. 92. s 1 Sid. 261. 7 Mod. 114. t Salk. 506. *Cited, 10 Minn. 430; 48 N. H. 373; 106 Pa. St. 348; and costs said to be creature of statute, 16 Minn. 259. +-+ Quoted, 21 Ind. 33; 48 Mo. 352. + Cited, 3 Blackf, 60. ? Cited, 11 Ohio St. 469. pauper may recover costs, though he pays none; for the counsel and clerks are bound to give their labour to him, but not to his antagonists."* To prevent also trifling and malicious actions, for words, for assault and battery, and for trespass, it is enacted by statutes 43 Eliz. c. 6. 21 Jac. I. c. 16. and 22 & 23 Car. II. c. 9. § 136. that, where the jury who try any of these actions shall give less damages than 40s. the plaintiff shall be allowed no more costs than damages, unless the judge before whom the cause is tried shall certify under his hand on the back of the record, that an actual battery (and not an assault only) was proved, or that in trespass the freehold or title of the land came chiefly in question. Also by statute 4 and 5 W. & M. [401] c. 23. and 8 & 9 W. III. c. 11. if the trespass were committed in hunting or sporting by an inferior tradesman, or if it appear to be wilfully and maliciously committed, the plaintiff shall have full costs, though his damages as assessed by the jury amount to less than 40s. After judgment is entered, execution will immediately follow, unless the party condemned thinks himself unjustly aggrieved by any of these proceedings; and then he has his remedy to reverse them by several writs in the nature of appeals, which we shall consider in the succeeding chapter. NOTE OF THE AMERICAN EDITOR TO CHAPTER XXIV. (69) The judgment is none of their own, but the act of law, pronounced and declared by the court after due deliberation and inquiry, page 396. How are we to reconcile this doctrine with the obvious truth that the law is of historical growth, and is even now constantly undergoing changes, partly, indeed, by legislation, but chiefly through the judgments so pronounced? Because the law as a whole, never having been reu 1 Equ. Cas. abr. 125. 1- Quoted, 85 N. C. 92. w See pag. 214, 215. duced to an authoritative text, exists only in the popular consciousness, that is in the knowledge of those who have made a study of it, and especially "in the breasts of the judges" (text, page 380), who are empowered by the constitution to speak with authority upon it. This is not peculiar to the law, but common to it with all sciences; with chemistry, with astronomy, with mathematics even. To deny the binding force of the law in the decisions of an honest judge, because he can state it only as he knows it, is as absurd as to assert that the author of an arithmetic constructs a new rule when he states the old-fashioned "rule of three" in a modern form; or that the chemist creates the effects that he produces by a new combination. So, too, of the effect of an error in all cases: the decision of a judge who mistakes the law is no more law than the misstatement of the chemist or mathematician. (See Introd. page *69, and note 30, page 213.) That the changes of the law are so much more rapid and noticeable than those of the other sciences mentioned is chiefly due to two causes: first, to the vast number and complexity of the facts with which it deals, and their dependence on the constantly changing circumstances of social life; and then to the manifold changes constantly going on as the effect, direct or indirect, of legislation. It must be remembered that Blackstone is speaking here of the judgments pronounced by the courts; not of the opinions, oral or written, in which such judgments are usually announced. Except so far as these set forth and explain the judgment actually rendered, they are mere dicta, private opinions of no binding force. Their object usually is to show the litigants the conformity of the judgment with previous decisions, or to show why their arguments have been rejected. They may thus serve a useful purpose in condensing the result of earlier judgments. But many causes have been at work to increase their number and bulk, and to diminish their value. |