dress of injuries, and the action is the vehicle or means of administering it. What that remedy may be, is indeed the result of deliberation and study to point out; and therefore the style of the judgment is, not that it is decreed or resolved by the court,-for then the judgment might appear to be their own; but "it is considered," consideratum est per curiam, that the plaintiff do recover his damages, his debt, his possession, or that he do have his injunction, and the like; which implies that the judgment is none of their own, but the act of law or equity, pronounced and declared by the court after due deliberation and inquiry (h).

Of

Judgments are either interlocutory or final. An interlocutory judgment is such as is given upon some defence, proceeding, or default, which is only intermediate, and does not finally determine or complete the action. this nature is the judgment for the plaintiff, which is given on a demurrer to a plea in abatement; for thereby it is considered by the court that the defendant do answer over, respondeat ouster; that is, put in a more substantial plea. It is easy to observe that the judgment here given is not final, but merely interlocutory; for there are afterwards further proceedings to be had, when the defendant hath put in a better defence.

But the interlocutory judgments most usually spoken of are those incomplete judgments whereby the right of the plaintiff is indeed established, but the quantum of damages sustained by him is not ascertained; a matter which (as the general rule) requires the intervention of a jury. This happens where the defendant suffers judgment to go against him by confession, or for default of plea, in any action brought for recovery of damages. In such a case as this, the entry of the judgment has been, that the plaintiff ought to recover his damages (indefinitely); but because the court know not what damages (h) 3 Bl. Com. 396.

the said plaintiff hath sustained, therefore let the sheriff, by the oaths of twelve honest and lawful men, inquire into the said damages, and let the said inquisition be returned into court. This process is called a writ of inquiry (i); in the execution of which the sheriff, by his under-sheriff, sits as judge, and tries by a jury,-subject to nearly the same law and conditions as apply to 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 in an action wherein damages are claimed, the judgment is entered in the same interlocutory form, and is followed by a like writ of inquiry. But in many cases though the action is brought in point of form for damages, (or sounds in damages, according to the technical term,) yet the amount recoverable by the plaintiff is substantially a matter of mere calculation, and one therefore upon which a jury would have no discretion to exercise. And in all such cases-whether the judgment be by confession, default or on demurrer-the course (as it was laid down by the Common Law Procedure Act, 1852) is not to issue any writ of inquiry, but to apply for an order of the court or a judge, that the amount which the plaintiff is entitled to recover be ascertained by one of the masters of the court (k).

(i) It was provided by 3 & 4 Will. 4, c. 42, s. 18, that judgment after a writ of inquiry might be signed and execution issue forthwith, unless the sheriff certified that judgment ought not to be signed until defendant had an opportunity to apply to the court to

set aside the execution of the writ; or unless a judge should think fit to stay the judgment.

(k) 15 & 16 Vict. c. 76, s. 94. No mention of writs of inquiry is made in the rules of procedure annexed to the Judicature Act, 1873.

A final judgment is that which is awarded at the end of the action, whether it be determined on a demurrer raised by the defendant, or on verdict, confession, default of appearance or of defence, nonsuit, or nolle prosequi. But this distinction is always to be understood, with respect to cases where there has been no verdict,—that if the action be for recovery of damages, the final judgment is preceded by an interlocutory judgment and writ of inquiry, or reference to the master thereon, to ascertain the amount of those damages; but if the action be for recovery of a debt or liquidated sum of money, then the judgment is final in the first instance (7). And we may remark here, that final judgments in the first instance, as upon confession or default of any statement of defence, have been often agreed upon before an action is brought, and constitute a very usual form of security for money; the course being for the debtor to execute a warrant to some solicitor named by the creditor, empowering him to sign judgment against the debtor in an action of debt for the specific sum due; though this practice is subject to several restrictive regulations for the prevention of fraud or oppression (m).

(7) See 15 & 16 Vict. c. 76, 8. 93.

(m) 3 Bl. Com. 397. The instrument given, is either a warrant of attorney, a cognovit actionem or a consent to a judge's order for judgment against the defendant. The chief difference between them is, that the two latter are given in the course of an action already commenced. The regulations referred to in the text, are now set forth in the Debtors Act, 1869 (32 & 33 Vict. c. 62), ss. 24-28, in substitution for the previous provisions on the same subject chiefly contained in 1 & 2 Vict. c. 110, ss. 9, 10, repealed by 32 & 33 Vict. c. 83.

Under these no warrant of attor ney or cognovit shall be of any force unless there be present some solicitor on behalf of the person giving it, expressly named by him, and attending at his request to inform him of the nature and effect of the instrument before the same is executed; which solicitor shall subscribe his name as a witness to the due execution, and thereby declare himself to be solicitor for the party, and state that he subscribes as such. In the case of a "judge's order" it must be filed in court within twenty-one days after it is made, or any judgment or execution thereon will be void.

At common law, all judgments had relation to the first day of the Term in which they were signed, though in point of fact not signed till afterwards (n); the Term being considered, for this and some other purposes, as consisting but of one day (o). But by the present practice, all judgments, whether interlocutory or final, are entered of record, of the day of the month and year, whether in Term or Vacation, when they were actually signed, and have no relation to any other day (p); but it has been competent for the court or a judge to order a judgment to be entered nunc pro tunc (q).

Upon final judgment, execution may issue against the goods and chattels of the debtor (r); or against any lands, tenements, and hereditaments, of which he himself, or any person in trust for him, shall have been seised or possessed, or over which he shall have any disposing power, exercisable without the assent of any other person, for his own benefit, at the time when the judgment is entered up,

(n) See Jeffreson v. Morton, 2 Saund, by Wms. 8 k.

(0) Vide sup. p. 482-485.

(p) Even as early as the time of Charles the second it was provided in favour of bona fide purchasers for valuable consideration, that, as against them judgments should bind the lands of the debtor only from such time as they should be signed, and should not relate to the first day of the term. (29 Car. 2, c. 3, ss. 13-15.)

(4) As to judgment nunc pro tunc, see Miles v. Williams, 9 Q. B. 47; Fishmongers' Company v. Robertson, 3 C. B. 970; Freeman v. Tranah, 12 C. B. 406; Heathcote v. Wing, 11 Exch. 355; Moor v. Roberts, 3 C. B. (N. S.) 844.

(2) Until a recent period, execution on a judgment might also, in cases above 201., issue against the person of the debtor; who might

be arrested and imprisoned under the writ of capias ad satisfaciendum; but by the 32 & 33 Vict. c. 62 (the Debtors Act, 1869), it was enacted that no person should thenceforth be arrested or imprisoned for making default in payment of a sum of money (except in a few cases specified in sect. 4 of that Act). But the same statute provides for the commitment to prison of persons who (having the means) refuse or neglect to pay a debt not exceeding 50%. due from them in pursuance of any order or judgment, for a term of six weeks or until payment. (See Hewitson v. Sherwin, Law Rep., 10 Eq. Ca. 53.) Such imprisonment may be awarded either in the superior court or by the county court, according to where the judgment or order was obtained. (Vide sup. p. 289.)

or at any time afterwards (s). But the operation of judgments on lands, as thus generally stated, must be taken in connection with and subject to the following important provisions. First, it is enacted by 23 & 24 Vict. c. 38, s. 1, that, (as regards a bonâ fide purchaser for valuable consideration or a mortgagee,) no judgment to be thereafter entered up shall affect any land unless a writ or other due process of execution thereon shall have been issued and registered with the Senior Master of the Common Pleas (t). And, secondly, by 27 & 28 Vict. c. 112, s. 2, that no judgment entered up after 29th July, 1864, shall affect any land until it shall have been actually delivered in execution under an elegit or other lawful authority (u). By this last statute also, it is provided, that the writ or other process of execution shall be thenceforth registered in the name of the debtor against whom it was obtained, instead of (as previously) in the name of the creditor (x). The provisions of this Act were intended to assimilate the effect of judgments on the land of the debtor to that which before prevailed with regard to their operation on his goods and chattels ; and these have been always

(8) 1 & 2 Vict. c. 110, s. 11. A judgment against a mortgagee would formerly bind the land mortgaged, even though the mortgage was paid off and the land actually conveyed to a purchaser or another mortgagee; but it was provided by 18 & 19 Vict. c. 15, s. 11, that this should no longer be the case as to future transactions.

(t) See also the earlier enactments of 4 & 5 Will. & M. c. 20; 1 & 2 Vict. c. 110, s. 19; 2 & 3 Vict. c. 11; 18 Vict. c. 5: and the following cases, Kemp v. Waddington, Law Rep., 1 Q. B. 355; and Gardner v. London, Chatham and Dover Railway Co., ib. 2 Ch. App. 385.

(u) See Guest v. Cowbridge Rail

way Co., Law Rep., 6 Eq. Ca. 619; Mildred v. Austin, ib. 8 Eq. Ca. 220; In re Duke of Newcastle, ib. 700; Hatton v. Haywood, 29 L. T. Rep. (N. S.) 385. Prior to this enactment (under 1 & 2 Vict. c. 110, s. 13), a judgment operated as a charge in equity, from the time of entering up the same, on all lands whereof at that date the judgment debtor was seised, possessed or interested for any estate whether at law or equity.

(a) The creditor may obtain an order for the sale of the interest of his debtor, in the land thus delivered. (See In re Bishop's Waltham Railway Co., Law Rep., 2 Ch. App 382.)