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ings, subsequent to the interlocutory judgment, to be vacated, and the damages to be re-assessed by the clerk.102.

Where the plaintiff had been nonprossed, and being ignorant of this fact, proceeded to judgment by default, and had his damages assessed, he was allowed by the court, on paying the costs of the nonpros, and vacating his own judgment, to erase from the note the assessment endorsed by the clerk, that he might, in a second action, proceed to trial without any embarrassment from the former proceedings; and the costs were directed to be paid by the defendant.98


Nature of writ.


A writ of inquiry is a judicial writ, issuing out of the court where the action is brought, and directed to the sheriff of the county in which the venue is laid, stating the previous proceedings in the cause, and, "because it is unknown what damages the plaintiff has sustained," commanding the sheriff that by the oaths of twelve good and lawful men, he diligently inquire the same, and return the inquisition into court."


Teste and re- The writ must be tested and made returnable in term; but this may be done after the second week.100


The inquisition is intended merely to inform the conscience of the court;1 and the sheriff's authority is ministerial, and not

102 19 Johns. Rep. 244.

98 1 Caines' Rep. 495.

100 2 Wend. Rep. 289.

13 Johns. Cas. 80. 3 Johns.

992 Archb. Pract. 31. Archb. Rep. 154. Forms. 342. 343.

judicial: and the court may themselves assess the damages, without the intervention of a jury, or the damages may be assessed by a jury, in their presence, and under their direction.


Notice of inquiry.] The same notice of executing a writ Time and re of inquiry, must be given as is required on assessment by the clerk. The notice states the place and the hour, or the hours between which, the writ will be executed ; as at the city hall in the city of New York, between the hours of four and six in the afternoon."

It seems that a notice of executing the writ" by ten o'clock," or" at ten o'clock, or as soon after, as the sheriff can attend," or "between the hours of ten and two o'clock" would be bad, as not being sufficiently definite. The notice may be given at any time after default entered; and notice of executing the writ at a certain day and time," provided an interlocutory judgment shall then have been obtained," is good; as this proviso is always implied, where the notice is given before interlocutory judgment, though it is unusual and need not be inserted.10 It seems that notice for the right day of the month is sufficient, though the day of the week be wrong." Any irregularity in the notice, is waived by the attendance of the defendant or his attorney, and his making a defence on the execution of the writ.12

Notice of inquiry may be countermanded in the same man- Counter


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Irregular to

execute writ

ner as a notice of trial, by giving six days notice of countermand.13

Of the execution of the writ and inquisition.] If the defendant do not attend punctually at the time mentioned in the notice, the court will not relieve him :14 and if he attend at the hour, he will not be warranted in leaving the court, at the expiration of the time mentioned in the notice; for the sheriff may have prior business, which may detain him beyond that time. 15

But if the plaintiff in the absence of the defendant, have the at different writ executed at a different time or place, from that specified in the notice, it will be irregular, and the court upon application will set it aside.16

time or


or on a Sunday.

Delay on part of plaintiff.


The writ may be executed on the the return day, or on any day before," except on a Sunday;18 and though the jury may have been impanelled on Saturday, and have heard the allegations and proofs of the parties before twelve o'clock, yet, if they assess the damages and deliver their verdict, to the sheriff on Sunday, the inquisition will be set aside.19

The plaintiff should proceed to execute the writ, within a reasonable time after obtaining interlocutory judgment; and where he neglected to proceed further, for more than two terms thereafter, the court ordered that he should execute the writ in thirty days, or be nonprossed.20

Previous to the execution of the writ, witnessess may be subpoenaed on either side,21 and the execution of the writ may

13 Rule 22.

14 1 Barnard. 233.

18 R. St. P. 1. Ch. 20. T. 8. s. 69. Vol. 1. p. 675. Str. 387. 15

151 Doug. 198. 2 Barnard. Johns. Rep. 177.


16 2 Archb. Pract. 37. et vide 1 Bos. & Pull. 363.

19 15 Johns. Rep. 177.

20 15 Johns. Rep. 400.

21 R. St. P. 3. Ch. 3. T. 2. s. 1.

17 Ld. Raym. 1449. Cro. Eliz. Vol. 2. p. 276.

be adjourned by the sheriff, after it is entered upon.22 If the costs. plaintiff has not countermanded his notice, the defendant is entitled to the costs of his attendance, if the writ be not executed.29

mission of


By suffering judgment to go by default, the defendant admits Default adthe cause of action set forth in the declaration, and he can only cause of accontrovert the quantum of damages.24 Thus if a promissory note or bill of exchange be declared on it, it need not be proved; though it must be produced before the jury, in order to see whether any money appears to have been paid upon it.25 And in a case in the king's bench, it was held that judgment by default, in an action for use and occupation, amounted to an admission that the defendant occupied a house under the plaintiff, who need not show that it was his own house; and that if the defendant insisted that he did not occupy the particular house, to which the evidence had been directed, that he must prove the fact.26

In an action for slander, where the plaintiff, on the execution of the writ of inquiry, offered no evidence, and the jury assessed the damages at £40, it was held that it was not incumbent on the plaintiff to give any evidence, and that the jury were not, under such circumstances, bound to give nominal damages only.27

applies to

The plaintiff cannot take an inquisition on such counts of Assessment his declaration as he thinks fit, but the assessment of damages whole decla must apply to the whole declaration; and, therefore, if some of the counts are bad, the judgment is erroneous.28


22 Str. 853. 1259. 15 Johns. Wils. 155. 3 Term. Rep. 301. 1

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Under sheriff

may execute


Judge at nisi prius.


On what ground.

The jury ought to allow interest in those cases in which it should properly be allowed.29

As the execution of a writ of inquiry is a ministerial and not a judicial act, the writ may be executed before the undersheriff, or a general deputy, as well as by the sheriff himself.50

In cases of difficulty and importance, the court, on a proper affidavit being made, will order that the writ of inquiry be executed before a judge of nisi prius, and then the judge acts as assistant to the sheriff.31

It seems that on a writ of inquiry, the jurors cannot be challenged..3

The inquisition must be in writing, and signed by the sheriff and jurors, and it is usually sealed, but it seems that this is not necessary; it is drawn up by the plaintiff's attorney. After execution of the writ of inquiry, it should be filed, with the sheriff's return and inquisition annexed, and a rule for judgment entered; and the plaintiff may then have his costs taxed, and perfect his judgment.


Setting aside inquisition.] The defendant may move to set aside the inquisition, for want of due notice, or on account of an objection to the jury,36 or for excessive damages.57 But in an action of slander, the court will not interfere on account

29 6 Taunt. 346.

publicly stated, and the sheriff

302 Johns. Rep. 63. 5 Johns. may then set aside the juror against Rep. 487.

31 Barnes. 135. Ringham on Judgments, 13. 12 Mod. 610. et vide 2 Johns, Rep. 107.

32 2 Johns. Rep. 71. 3 Salk. 81. sed vide 15 Johns. Rep. 177. where the court say "that if there is any legal or valid objection to a juror, it ought to be openly and

whom the objection is made and
summon another; or if he should
refuse to do so, it would be ground
for an application to set aside the

33 I Cowen rep. 212. n. b.
35 Coleman. 56.

36 Cowp. 112.

37 Burr. Rep. 1846. 3 Wils. 63.

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