CHAPTER IX.

OF JUDGMENTS, COSTS, AND FILING TRANSCRIPTS.

1. Of judgments.

2. Of costs.

3. Of filing transcripts.

1. OF JUDGMENTS.

In any cause, when the plaintiff appears and the defendant does not, and no sufficient reason is assigned why he does not, the justice shall proceed to determine the same in the absence of the defendant; and when the parties appear and are ready, and the cause is submitted to the justice for trial without a jury, the justice shall proceed to hear and examine their respective proofs and allegations, and thereon shall give judg ment according to his finding; and when a cause is tried before a justice and a jury, the justice shall enter judgment upon their verdict according to the finding thereof. Gale's Stat., 401, §§ 5, 9, & 21.

From this statute it appears that a justice of the peace has no power to arrest a judgment, or of suspending a judgment, by granting a new trial. There is no day given to either of the parties to appear in the court and show cause why judgment should not be rendered according to the finding of the justice, or the verdict of the jury. There is no discretion given to the justice; he is bound to render judgment as a matter of course.

Judgment is the sentence of the law pronounced by the court upon the matters contained in the record. 3 Bl. Čom.,

395.

The record, in a justice's court, usually contains the names of the parties, and short notes of the date and description of the process and time of issuing; the name of the officer to whom the process is delivered, and the time and manner of service; the appearance of the parties, the nature and amount of the plaintiff's cause of action, the defence of the defendant, the continuances, the trial and finding of the justice or jury, and the rendering of judgment, together with all intermediate process and proceedings material and necessary in prosecuting or defending the suit and the entry of the proceedings should be made in the order of time in which they transpired. These notes or memoranda are to be entered in a docket book to be kept by the justice of the peace for that purpose. Gale's Stat., 402.

As the process and papers in suits before justices of the peace are liable to accident and loss, it is important that care and particularity should be observed in entering in the record. all the facts necessary to show the jurisdiction of the justice in the first instance, as well as the regularity of the proceedings to the time of entering final judgment.

The judgment, though pronounced or awarded by the justice, is not his determination or sentence, but the determination or sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact; which judgment or conclusion depends not on the arbitrary caprice of the justice, but on settled and invariable principles of justice. The judgment, in short, is the remedy prescribed by law for the redress of injuries, and the suit or action is the vehicle or means of administering it. 3 Bl. Com., 396.

There are various ways, however, in which a suit may be determined as to some or all of the defendants, or as to a part of the cause or causes of action, before it shall have progressed to a hearing or trial on the merits and final judgment.

By discontinuance; which is a mere suspension of the proceedings without affecting the merits of the action.

Discontinuance is where the opportunity of prosecution is lost for that time, or the plaintiff is dimissed the court. And every suit ought to be properly continued from its commencement to its conclusion; and the suffering any default, is called a discontinuance. Jac. Law Dic., (tit. Discontinuance of Process.)

A continuance of a cause not authorized by the statute, would be a discontinuance of the suit, and the defendant is no longer bound to attend. 3 Bl. Com., 296. The irregularity, however, would be cured by the appearance of the party on the day to which the cause is continued, and going to trial.

Discontinuance of process is helped, at common law, by appearance; and then all discontinuances, miscontinuances, and negligence in the suit, either of the plaintiff or defendant, are cured after verdict. Jac. Law Dic., (tit. Discontinuance of Process.) 9 Johns. Rep., 136.

When the plaintiff or his agent does not appear on the return of the process, without any sufficient reason being assigned, the justice shall dismiss the suit, and the plaintiff shall pay costs. Gale's Stat., 404, § 6. This section, however, does not require the dismissal of a suit on a note placed in the hands of a justice for collection. And when a plaintiff does not appear at the time to which a cause has been continued, judgment of discontinuance may be entered against him. 2 Wend. Rep., 260.

When a cause has been discontinued before a justice by the luches of the plaintiff, the justice has no jurisdiction; and if

he proceeds in it, his proceedings are coram non judice and void. 6 Cowen's Rep., 661.

Judgment of discontinuance is not a bar to a second action for the same cause. 2 Johns. Rep., 409. 1 Scam. Rep.,

152.

By nonsuit: which is letting a suit or action fall, or a renunciation of it by the plaintiff, most commonly upon the discovery of some error or defect after he has stated his case or closed his evidence, or after the defendant has closed his case, and before the matter is submitted to the justice, when tried before him without a jury, or before the jury have delivered their verdict. Jac. Law Dic., (tit. Nonsuit.)

According to the old books, the terms "discontinuance" and "nonsuit" are frequently used as having the same import; but, in modern times, it has been held that a nonsuit can only be at the instance of the defendant, which doctrine has completely distinguished the terms. 1 Saund., 195, d, note (f.)

Yet it has been held, where a plaintiff does not appear within a reasonable time after the return of the process, the justice may proceed to call and give judgment of nonsuit against him, if he then fails to appear. 20 Johns. Rep., 309. 1 Saund., 195, d, note (f.)

The dismissal of a suit by a justice of the peace is, in effect, a nonsuit, and does not bar a subsequent suit for the same demand, or for a different cause of action. 1 Scam. Rep., 152.

If any suit shall be commenced by a non-resident without filing a bond for costs, the suit shall be discontinued on the motion of the defendant, and the plaintiff shall be liable to pay all costs occasioned thereby, which may be recovered before any justice of the county in the name of the party injured. Gale's Stat., 421, §8.

In a suit where the defendant does not appear and make a defence, the plaintiff may be nonsuited for a variance. 3 Taunt. Rep., 81.

Where a man brings a personal action, and doth not prosecute it with effect; or if, upon the trial, he refuses to stand the verdict, then he becomes nonsuited; as on a trial when the jury come to deliver the verdict, and the plaintiff is called upon to hear the verdict, if he does not appear after being thrice called, he is nonsuited upon the motion of the defendant, and the nonsuit is thereupon recorded by the justice in his docket book, or book containing an abstract of the proceedings. 3 Bl. Com., 376. Jac. Law Dic., (tit. Nonsuit.)

On the trial of a cause, either with or without a jury, the justice may nonsuit the plaintiff when, in his opinion, the testimony offered does not support the action. 12 Johns. Rep., 299. 2 Scam. Rep., 535.

As when the plaintiff's demand is a note of hand, and the

defendant makes oath that the signature is not his; if the plaintiff should fail to prove the signature to be the defendant's, the justice might properly nonsuit him.

When the evidence tends to prove the issue, the jury should be left to determine the cause under the evidence offered. In such a case, the court has no power to take the cause from them, or to advise them that the defendant is entitled to their verdict. 1 Scam. Rep., 406.

According to the practice in the English courts, it appears to be optional with the plaintiff whether he will be nonsuited or not, and he cannot be compelled to be so, but may insist upon the cause going to the jury, and thus take his chance of the verdict. 1 Saund., 195, d, note (f.) 1 B. & A., 252.

In this state, however, if a party fails to introduce some. necessary link in the chain of testimony to make out his case, and such failure is evidently the result of oversight, the proper course for the defendant is to apply for a nonsuit; and then it is matter of discretion with the court trying the case, to permit the plaintiff to introduce further evidence, if he can, to supply the defective link. If the party cannot supply the defect, the nonsuit is granted as a matter of course; but the party, by his laches, does not lose his debt. 2 Scam. Rep.,

248.

But there is no authority for the court to instruct the jury either to nonsuit the plaintiff, or to find against him as in case of nonsuit, when there is no evidence proving or tending to prove the issues on the part of the plaintiff. 4 Scam. Rep., 447. After a cause is once subinitted to a jury, the justice cannot withdraw it from them, and nonsuit the plaintiff. 3 Johns. Rep., 430.

But the plaintiff may himself submit to a nonsuit at any time before the jury render their verdict. 2 Scam. Rep., 261. 10 Weud. Rep., 519.

When a cause is tried before a justice without a jury, the plaintiff may elect to become nonsuited at any time before it is finally submitted for the judgment of the court; but, after it is so submitted and under advisement, it is presumed that he cannot become nonsuited. 11 Johns. Rep., 457.

After a nonsuit, which is only a default, the plaintiff may commence suit again for the same cause of action. 3 Bl. Com., 376. He does not thereby lose his debt. 2 Scam. Rep., 250.

By nolle prosequi; which is a partial forbearance by the plaintiff to proceed any further, either as to some of the defendants, or the whole, or to some part of the suit; but still he is at liberty to go on as to the rest. It is no bar to a future action for the same cause, except in those cases, indeed, where, from the nature of the action, judgment and execution against one is a satisfaction of all the damages sustained by the plaintiff. 1 Saund., 207, (2.)

In actions founded upon a tort, such as trover or trespass, the plaintiff may enter a nolle prosequi as to some of the defendants, and proceed against the others at any time before final judgment, even although they all join in the same plea and be found jointly guilty; 1 Ld. Raym., 597. 3 Salk. Rep., 244; and he may do so when the defendants plead severally. 2 Salk. Rep., 457. Where a plaintiff enters a nolle prosequi against one of several defendants in tort, he thereby admits that there is no joint tort as far as regards that defendant, and it would be a bar to any further suit for the same cause. 1 Saund., 207, notes (2.) and (n.)

If an action is brought upon a contract against several defendants, who join in their pleas, and a verdict is found against them, it is apprehended the plaintiff cannot enter a nolle prosequi against any of them, because, the contract being joint, the plaintiff is compelled to bring his action against all the parties thereto, and he shall not, by entering a nolle prosequi, prevent the defendant, against whom the recovery has been had, from calling upon the other defendants for a ratable contribution. 1 Scam. Rep., 552.

In actions upon contract, when a joint contract must be proved, judgment must be rendered against all who are served. with process, or none; 2 Scam. Rep., 36; unless one or more of the defendants interpose a defence which is personal to himself, such as infancy, bankruptcy, or the like. 2 Scam. Rep., 571.

And in such causes the plaintiff may, either before or after verdict, enter a nolle prosequi as to the defendant interposing such defence, and take judgment against the rest. I Chit. Pl., 599.

According to the older causes it seems that, by entering a nolle prosequi the plaintiff thereby voluntarily acknowledged that he had no cause of action, and it was a bar to another suit. At the present day, however, it is considered as merely an agreement not to proceed any further in the suit, and would be no bar to a fresh action for the same cause. 1 Saund., 207, (2.)

Accordingly, if the plaintiff misconceive his action, or make a mistake as to the party sued, (as where he sues a feme covert, and she pleads coverture in bar; 3 Term Rep., 511; or when he discovers that the defendant is an infant, and the action is upon an account stated for necessaries or the like,) he may enter a nolle prosequi as to the whole cause of action. 2 Archb. Pr., 248. 1 Term Rep., 40.

Where in trespass the plaintiff declares that the defendant took and carried away the plaintiff's hay, grass, and corn, he may enter a nolle prosequi as to the hay and grass, and proceed for the taking of the corn. Doug., 196.

If the plaintiff bring suit upon two separate and distinct demands, and the defence set up by the defendant should be a