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of damages, unless the case is very gross, and the recovery enormous.$8

The plaintiff may move to set the inquisition aside when the damages are too small, and there has been contrivance,39 or surprise;40 as if the witness, to prove his demand, decline giving evidence, and the sheriff, through ignorance of his authority, refuse to adjourn the inquiry," or where there has been a mistake of the sheriff or jury, in point of law;42 but not for insufficiency of damages alone,43 unless, perhaps, in case of a clear mistake.44


If improper evidence has been admitted, as if the defendant has Improper been allowed to give evidence in denial of the cause of action,45 the inquisition will be set aside, if it appear that injustice has been done; but unless this is shown, the court will not interfere.46 Nor will they set aside the inquisition on this ground, if the parties have agreed, that any evidence might be given on the execution of the writ, that could be given on the trial; for in such case the inquest is to be considered in the nature of an arbitration.47


The court will not set aside a writ of inquiry before it has Must be rebeen returned, because, until this is done, it is not before the court, and the plaintiff may issue a new writ.48 If the sheriff permit any person to remain and converse with the jury, whilst deliberating on their verdict, the inquisition will be set aside, each party paying his own costs, as neither is to blame.49 If the damages are separately assessed on each count, where there is but one cause of action, the inquisition will be set ade, and the defendant allowed to plead on terms.5


38 2 Johns. Rep. 74. 39 Salk. 646. pl. 17. 40 Str. 515.

41 Str. 1259.

42 Str. 425. 1259. Barnes 448.

43 Barnes 230. Doug. 509. 44 See 19 Johns. Rep. 244. 3 Johns. Rep. 254.

451 Bos. & Pull. 366.
46 3 Johns. Cas. 80.
47 2 Johns. Cas. 117.
48 1 Caines' Rep. 250.
49 3 Caines' Rep. 96.
50 3 Johns. Rep. 254.

Attorney prevented

Where, from sudden and dangerous illness, the defendant's from attend- attorney was prevented from attending on the execution of the


Teste and re


aided by sta-

writ, the inquest was set aside; but this was done on condition that the defendant should consent, that the judgment should be entered as of that present time.51

Amendments to writ.] The court will always allow a writ of inquiry to be amended, where there is something to amend by:52 thus, the teste, or return, may be amended by the award of the writ on the roll.



Where a writ of inquiry and inquisition had been lost, they were allowed to be made out anew from the sheriff's notes." After an award of a writ of inquiry upon the roll, it is no cause of error, if final judgment be given for a certain sum, with the plaintiff's assent, although the record contain no entry of any inquisition executed.56

The want of a writ of inquiry," or a miscontinuance, as where a term intervenes between the teste and return of the writ,58 or a misdescription of the court59 is aided by statute.


51 2 Caines' Rep. 381.

52 Str. 684. Rep. temp. Hardw. 314.

53 4 East. Rep. 173.

54 Cro. Eliz. 760.

55 Str. 1077.


4 Taunt. 148.

57 Ld. Raym. 1397. Str. 878. 1

H. Black. Rep. 543. n. a.

58 3 Johns. Rep. 183.

59 1 Johns. Rep. 59.

60 See R. St. Vol. 2. p. 424. 425, ante, p. 596. 597. As to writ of inquiry in actions on bonds for performance of covenants, see post, Vol. 2.



Analogous to the confession of judgment by the defendant, are the proceedings treated of in this chapter, on the part of the plaintiff, whereby in effect he relinquishes his suit, or declares that he will not further prosecute it, as to the whole or a part of the cause of action.

Discontinuance by rule.] If the plaintiff find that he has misconceived his action, or that from some defect in the pleadings, or other reason, he will not be able to maintain it, he may obtain a rule for leave to discontinue. The rule before trial Howenor enquiry, is a matter of course, and is entered in the book when of of common rules, and notice given to the opposite party; but afterwards, it is necessary to obtain the leave of the court.1

The costs of the defendant must be paid; otherwise the discontinuance is a nullity, and the defendant may proceed to obtain judgment of nonpros against the plaintiff: but the court will not, in such case, grant a rule that the plaintiff pay the costs.

tered and



The entry of the rule may be waived by the plaintiff's Waiver of attorney; thus where the attorney for the plaintiff, told the attorney for the defendant, that the cause was discontinued,

1 Salk. 178. pl. 4.

22 Archb. Pract. 233. 10 Johns.

Rep. 367.

3 10 Johns. Rep. 367.

Who may discontinue without



under insolvent law

Plea in abatement.

and being requested by the latter to enter a rule for that purpose, said that this was not necessary, the court would not suffer him afterwards to proceed in the suit, but on application of the defendant, ordered a discontinuance to be entered.1

One who sues, en autre droit, as an executor or administrator, or the assignee of an insolvent debtor, may discontinue without costs, unless he has knowingly brought a wrong action; and the court without any evidence of the fact, will not presume that he has knowingly brought a wrong action." So if the defendant has obtained a discharge under the insolvent laws, the plaintiff may discontinue without costs. 101

In such case it is not of course to enter a rule to discontinue without costs, but this can only be done upon special motion, and under circumstances to be shown on affidavit, and approved by the court.


After a plea in abatement, the plaintiff may discontinue without costs; and if in such case, a second suit is brought, and the defendant plead another action pending, the discontinuance may be entered of course at any time before replicaSentenc to tion. If the defendant has been sentenced to the state prison, the court will allow the plaintiff to discontinue without costs.10 But the plaintiff will not be allowed to discontinue without costs, because the defendant has enlisted in the army of the United States, unless it appears that the sum to be recovered amounts to less than twenty dollars.11

state prion.

4 6 Cowen. Rep. 385.

Rep. 503. 6 Johns. Rep. 333. 2

5 4 Cowen. Rep. 548. 5 Cowen. Johns. Rep. 294. Rep. 14. 551.

3 Johns. Rep. 249. Str. 871. Burr. Rep. 1451. 1927. Barnes. 169.

73 Johns. Rep. 249.

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2 Cowen. Rep. 503. 91 Johns. Cas. 397.

101 Caines' Rep. 116.

11 3 Johns. Rep. 445. See Laws U. S. Vol. 6. p. 17. s. 23.



After a general verdict, or a writ of enquiry executed and When dis returned,12 or a peremptory rule for judgment on demurrer, 13 cannot be leave to discontinue is never granted. But leave has been granted after argument, and before judgment on demurrer ;14 and even after a special verdict, because that is not complete and final.15


An attorney may discontinue by virtue of his general power, Attorney's no special authority for that purpose being necessary;16 and a discontinuance is no bar to a second action for the same cause.17

Discontinuance of process, &c.] The process or proceedings in a suit should regularly be continued from the commencement of the suit, until final judgment; if there be any lapse or want of continuance, which is not aided, the parties are out of court, and the plaintiff must begin de novo.18

Before declaration, there is, properly speaking, no continuance ;19 after declaration, and before issue joined, the proceedings are continued by imparlance;20 after issue joined, and before verdict, there is, as we have before seen,21 a general continuance provided by statute; after verdict or demurrer the proceedings are continued by, curia advisari vult.22

In general, the continuances are mere matter of form, and may be entered at any time;23 and they have been allowed to be entered after verdict, so as to show that the action was commenced in time to save the statute of limitations.24


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