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§ 309. Of Judgments.

When a verdict is accepted, and no motion in arrest is interposed, it is followed by the judgment. A judgment is the sentence of the law, awarded and pronounced by the judge upon some question legally submitted to him. Judgments are of two kinds: Interlocutory and Final. An interlocutory judgment is a sentence pronounced by the judge, upon some question arising during the proceedings in an action. A final judgment is the sentence which determines the action itself. Final judgments may be rendered in several cases: (1) Upon nonsuit; i. e. where the plaintiff, having commenced an action, abandons it, and the defendant enters and takes a judgment for his costs; (2) Upon default; i. e. when the defendant does not appear to defend, and the plaintiff takes judgment against him for the debt, or damages, and costs; (3) Upon confession; i. e. where the defendant, in an action of debt, acknowledges the indebtedness in court, and the plaintiff takes judgment against him for the amount and costs; (4) Upon nihil dicit; i. e. where the defendant appears but refuses to plead according to the due course of law, and the plaintiff takes judgment against him for the debt, or damages, and costs; (5) Upon demurrer; i. e. where an issue of law, which is decisive of the action, is presented to the judge, and the prevailing party, if he be the plaintiff, takes judgment for the debt, or damages, and costs; but, if he be the defendant, for the costs only; (6) Upon verdict rendered by the jury. In all cases of judgment where debt or damages may be awarded, except upon the verdict of a jury, the amount must be determined by a writ of inquiry, or a hearing in damages, either before the judge or before some other person or persons appointed for the purpose. In judgments rendered upon verdict, the amount named in the verdict must be followed in the judgment, unless this amount be greater than the one claimed in the declaration. In such

a case, the prevailing party must enter a remittitur for the surplus, and take judgment only for the amount claimed, or the judgment will be erroneous. The recovery of costs, both as to the right thereto and the amount thereof, is generally regulated by statute.

Read 3 Bl. Comm., pp. 296, 297, 303, 324, 395–399.
Bac. Abr., Nonsuit.

Com. Dig., Pleader M, X, Y, Z.

Stephen Pl., pp. 104–116.

1 Tidd Prac., pp. 606, 609-631.

2 Tidd Prac., pp. 794-799, 917-927, 962-964.

§ 310. Of Audita Querela.

The process, by which a final judgment is enforced against the person or property of the defeated party, is called an execution. This issues, as a matter of course, out of the court, on the rendition of the judgment, unless stayed by the court on account of some proceeding on the part of the defeated party, which may render it unnecessary. The proceedings, of which the defeated party may avail himself for this purpose, are two: (1) An Audita Querela; (2) A Writ of Error. An audita querela is a proceeding, in which the defeated party claims that, since the rendition of the judgment, he has been legally released or discharged from the same, and prays that it may not be enforced against him. The question thus raised being examined by the court, in which the judgment was rendered, execution will be granted or withheld as justice may require.

Read 3 Bl. Comm., pp. 401, 405, 406.

Bac. Abr., Audita Querela, Supersedeas D 1.
Com. Dig., Audita Querela, Supersedeas.

§ 311. Of Writs of Error.

ment.

A writ of error is a proceeding in which the defeated party claims that the judgment is invalid, either on account of errors in law apparent on the face of the record, or on account of his own legal incapacity or want of opportunity to appear, or on account of a want of authority, on the part of the court, to render such a judgment. The record regularly consists of the process, pleadings, verdict, and judgWhen questions of law arise in the course of the proceedings, (as upon the admission or rejection of evidence and the like,) they can be made part of the record by a written statement, called a bill of exceptions. If the defeated party prevails in this proceeding, the judgment will be reversed and a new trial ordered, or such further proceedings had as will, if possible, correct the error. he be also here defeated, the original judgment will be affirmed, and execution issued. A writ of error may be brought even after execution has been levied, and, if then successful, not only will the judgment be reversed, but the execution-creditor will be compelled to pay back the sum collected on the execution. In some of the States, motions, in the nature of writs of error, are permitted to be made, within a certain time after judgment has been rendered, and a correction of errors, or other desired relief, is thus secured as a part of the proceedings in the original action.

Read 3 Bl. Comm., pp. 406-411.

If

Bac. Abr., Bill of Exceptions, Error, Supersedeas
D, E, F.

Com. Dig., Error, Pleader 3 B.

Stephen Pl., pp. 88, 89, 117-122.

2 Tidd Prac., pp. 910-914, 1188-1246.
1 Starkie Ev., pp. 790–797.

§ 312. Of the Nature, Kinds, and Service of Executions.

An execution is a process, directed to the sheriff or other proper officer, commanding him to satisfy the judgment upon the body, or the personal property, or the real property, of the defeated party. An execution, issued against the body of the defeated party, is called a capias ad satisfaciendum. It is served by arresting him and committing him to prison, there to be detained until discharged by due course of law. An execution, issued against the personal property of the defeated party, is called a fieri facias. It is served by seizing and selling so much of his goods and chattels, as may be needed for the payment of the judgment-debt. An execution, issued against the real property of the defeated party, is called sometimes a levari facias, sometimes an elegit, according to the method by which the lands themselves, or the profits thereof, are appropriated to the payment of the judgment-debt. In some States, the real property may be sold and the proceeds applied in payment; in other States, the property is deeded by the sheriff to the judgment-creditor; in still others, the possession of the property may be delivered to the creditor to hold until the income pays the debt. Certain special forms of action have also their peculiar forms of execution. In ejectment, the execution is called an habere facias, and is served by dispossessing the defendant and putting the plaintiff into peaceable possession of the lands. In the action of replevin, an execution sometimes issues to secure the restoration, to the defendant, of the property wrongfully replevied by the plaintiff. And in detinue, the execution may command the goods, for which, or for the price of which, the plaintiff sues, to be seized and restored to him. When the execution has been served according to its nature, it must be returned to court, with an account of the doings of the sheriff endorsed thereon. If the judgment is satisfied,

proceedings are at an end. If it is unsatisfied, other executions may be issued, at any time within such period as the statute permits, until satisfaction of the judgment be obtained.

Read 3 Bl. Comm., pp. 412-425.
Bac. Abr., Execution.

Com. Dig., Execution.
Stephen Pl., p. 116.

2 Tidd Prac., pp. 1030–1086.

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