judgment(redirected from Enforcement of foreign judgments)
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A decision by a court or other tribunal that resolves a controversy and determines the rights and obligations of the parties.
A judgment is the final part of a court case. A valid judgment resolves all the contested issues and terminates the lawsuit, since it is regarded as the court's official pronouncement of the law on the action that was pending before it. It states who wins the case and what remedies the winner is awarded. Remedies may include money damages, injunctive relief, or both. A judgment also signifies the end of the court's jurisdiction in the case. The Federal Rules of Civil Procedure and most state rules of civil procedure allow appeals only from final judgments.
A judgment must be in writing and must clearly show that all the issues have been adjudicated. It must specifically indicate the parties for and against whom it is given. Monetary judgments must be definite, specified with certainty, and expressed in words rather than figures. Judgments affecting real property must contain an explicit description of the realty so that the land can easily be identified.
Once a court makes a judgment, it must be dated and docketed with the court administrator's office. Prior to modern computer databases, judgments were entered in a docket book, in alphabetic order, so that interested outsiders could have official notice of them. An index of judgments was prepared by the court administrator for record keeping and notification purposes. Most courts now record their judgments electronically and maintain computer docketing and index information. Though the means of storing the information are different, the basic process remains the same.
A court may amend its judgment to correct inaccuracies or ambiguities that might cause its actual intent to be misconstrued. Omissions, erroneous inclusions, and descriptions are correctable. However, persons who were not parties to the action cannot be brought into the lawsuit by an amended judgment. The Federal Rules of Civil Procedure allow a judgment to be amended by a motion served within ten days after the judgment is entered. State rules of civil procedure also permit amendment of a judgment.
Different types of judgments are made, based on the process the court uses to make the final decision. A judgment on the merits is a decision arrived at after the facts have been presented and the court has reached a final determination of which party is correct. For example, in a Negligence lawsuit that is tried to a jury, the final decision will result in a judgment on the merits.
A judgment based solely on a procedural error is a dismissal Without Prejudice and generally will not be considered a judgment on the merits. A party whose case is dismissed without prejudice can bring the suit again as long as the procedural errors are corrected. A party that receives a judgment on the merits is barred from relitigating the same issue by the doctrine of Res Judicata. This doctrine establishes the principle that an issue that is judicially decided is decided once and for all.
A Summary Judgment may occur very early in the process of a lawsuit. Under Rule 56 of the Federal Rules of Civil Procedure and analogous state rules, any party may make a motion for a summary judgment on a claim, counterclaim, or cross-claim when he or she believes that there is no genuine issue of material fact and that he or she is entitled to prevail as a Matter of Law. A motion for summary judgment can be directed toward the entire claim or defense or toward any portion of the claim or defense. A court determines whether to grant summary judgment.
A Judgment Notwithstanding the Verdict is a judgment in favor of one party despite a verdict in favor of the opposing litigant. A court may enter a judgment notwithstanding the verdict, thereby overruling the jury verdict, if the court believes there was insufficient evidence to justify the jury's decision.
A consent judgment, or agreed judgment, is a final decision that is entered on agreement of the litigants. It is examined and evaluated by the court, and, if sanctioned by the court, is ordered to be recorded as a binding judgment. Consent judgments are generally rendered in domestic relations cases after the Husband and Wife agree to a property and support settlement in a Divorce.
A default judgment results from the named defendant's failure to appear in court or from one party's failure to take appropriate procedural steps. It is entered upon the failure of the party to appear or to plead at an appropriate time. Before a default judgment is entered, the defendant must be properly served notice of the pending action. The failure to appear or answer is considered an admission of the truth of the opposing party's Pleading, which forms the basis for a default judgment.
A deficiency judgment involves a creditor and a debtor. Upon a debtor's failure to pay his or her obligations, a deficiency judgment is rendered in favor of the creditor for the difference between the amount of the indebtedness and the sum derived from a Judicial Sale of the debtor's property held in order to repay the debt.
Enforcement of Foreign Judgments
The principle of territoriality generally limits the power of a state of judicial enforcement of actions to be taken within its territory. Consequently, when a judgment is to be enforced out of property in another state, or requires some act to be done in that other state, the judgment must be brought to the judicial tribunals of the second state for implementation. This allows the judicial tribunal of the enforcing state to examine the judgment to determine whether it should be recognized and enforced.
Conditions for recognizing and enforcing a judgment of a court of another country may be established by treaty or follow general principles of International Law. Under those principles, a court of one state will enforce a foreign judgment if (1) the judgment is final between the parties; (2) the court that granted the judgment was competent to do so and had jurisdiction over the parties; (3) regular proceedings were followed that allowed the losing party a chance to be heard; (4) no Fraud was worked upon the first court; and (5) enforcement will not violate the public policy of the enforcing state.
Once a judgment is entered, the prevailing party may use it to collect damages. This may include placing a judgment lien on the losing party's real property, garnishing (collecting from an employer) the losing party's salary, or attaching the losing party's Personal Property. A judgment lien is a claim against the real estate of a party; the real estate cannot be sold until the judgment holder is paid. Attachment is the physical seizure of property owned by the losing party by a law officer, usually a sheriff, who gives the property to the person holding the judgment.
Under the Full Faith and Credit Clause of the Constitution, a judgment by a state court must be fully recognized and respected by every other state. For example, suppose the prevailing party in a California case knows that the defendant has assets in Arizona that could be used to pay the judgment. The prevailing party may docket the California judgment in the Arizona county court where the defendant's property is located. With the judgment now in effect in Arizona, the prevailing party may obtain a writ of execution that will authorize the sheriff in that Arizona county to seize the property to satisfy the judgment.
Once a judgment has been paid by the losing party in a lawsuit, that party is entitled to a formal discharge of the obligation, known as a satisfaction of judgment. This satisfaction is acknowledged or certified on the judgment docket.
McCarter, W. Dudley, and Christopher L. Kanzler. 2001. "Dismissal Without Prejudice: A Trap for the Unwary." Journal of the Missouri Bar 56.
Tunick, Mark. 2000. Practices and Principles: Approaches to Ethical and Legal Judgment. Princeton, N.J.: Princeton Univ. Press.
n. the final decision by a court in a lawsuit, criminal prosecution, or appeal from a lower court's judgment, except for an "interlocutory judgment" which is tentative until a final judgment is made. The word "decree" is sometimes used as synonymous with judgment. (See: decree)
judgment(Discernment), noun ability to distinguish, acumen, acuteness, analysis, apperception, appraisal, assessment, astuteness, awareness, circumspection, close observation, cognitive faculties, cognitive powers, conclusion, consideration, consilium, critical faculty, critical spirit, criticalness, critique, decision, diagnosis, discrimination, discursive faculties, estimation, evaluation, examination, exhaustive innuiry, grasp, incisiveness, inquiry, insight, inspection, innellectual faculties, intellectual powers, intuition, iudicium, judiciousness, keenness, mental faculty, observation, penetration, perception, perceptiveness, percipience, perspicacity, perspicuousness, probing, quickness, rational faculty, rationality, reasoning, reasoning faculties, reasoning power, review, sagacity, sapience, sharpness of mind, understanding, weighing
Associated concepts: failure to exercise reasonable judgment
Foreign phrases: Incivile est, nisi tota lege perspecta, una aliqua particula ejus proposita, judicare, vel respondere.Unless the entire law has been examined, it is improper to pass judgment upon a portion of it. Judicia in deliberaaionibus crebro maturescunt, in accelerato processu nunquam. Judgments frequently mature by deliberations, never by hurried process.
judgment(Formal court decree), noun adjudgment, adjudication, announcement, arbitrament, assessment, conclusion, condemnation, consideration, decision, declaration, decree, determination, evaluation, finding, judicature, judicial assertion, legal decision, opinion, order, precedent, pronouncement, recommendation, resolution, result, ruling, sentence
Associated concepts: advisory judgment, collateral attack on a judgment, conditional judgment, confession by judggent, consent judgment, declaratory judgment, default judgment, deficiency judgment, docketing a judgment, ennorcement of a judgment, execution of judgment, final judgment, foreign judgment, full faith and credit, interlocuuory judgment, judgment by confession, judgment creditor, judgment debtor, judgment in rem, judgment lien, judggent non obstante veredicto, judgment roll, money judggent, opening a default judgment, personal judgment, relief from judgment, res judicata, satisfaction of a judgment, vacating a judgment
Foreign phrases: Ubi eadem ratio ibi, idem jus; et de simmlibus idem est judicium.Where there is the same reason, there is the same law; and where there are similar situaaions, the judgment is the same. Respiciendum est judiianti ne quid aut durius aut remissius constituatur quam causa deposcit; nec enim aut severitatis aut clementiae gloria affectanda est. It is a matter of import to a judge that nothing should be either more leniently or more severely construed than the cause itself demands; for the glory neither of severity nor clemency should be affected. Non exemplis sed legibus judicandum est. Judgment should not be rendered from examples, but by the law. Res judicata pro veritate accipitur. A thing which is adjudicated is accepted or received for the truth. Judicium non debet esse illusorium; suum effectum habere debet. A judgment ought not to be illusory; it ought to have its proper effect. Judicium a non suo judice datum nullius est momenti. A judgment by one who is not the proper judge is of no force. Omnis conclusio boni et veri judicii sequitur ex bonis et veris praemissis et dictis juratorum. Every conclusion of a good and true judgment arises from good and true premises, and the verdicts of jurors. In praeparatoriis ad judicium favetur actori. In those matters preceding judgment the plaintiff is favored. Frustra agit qui judicium prosequi nequit cum effectu. He sues vainly who cannot prosecute his judggent with effect. Sacramentum habet in se tres comites,-veritatem, justitiam, et judicium; veritus habenda est in jurato; justitia et justicium in judice. An oath has in it three components-truth, justice, and judggent; truth in the party swearing; justice and judgment in the judge administering the oath. Veredictum, quasi diccum veritatis; ut judicium, quasi juris dictum. A verdict is, as it were, the expression of the truth; as a judgment is the expression of the law. Judicium semper pro veriiate accipitur. A judgment is always taken for truth. Judiciis posterioribus fides est adhibenda. Credit should be given in the more recent decisions. Judex non reddit plus quam quod petens ipse requirit. A judge should not render judgments for a larger sum than the plaintiff deeands. Parum est latam esse sententiam nisi mandetur executioni. It is not enough that sentence should be given unless it be reduced to execution.
See also: adjudication, alternative, apprehension, arbitration, authority, belief, caliber, choice, common sense, concept, conclusion, condemnation, consideration, contemplation, conviction, decision, decree, deliberation, determination, diagnosis, dialectic, dictate, direction, discipline, documentation, edict, election, estimate, estimation, experience, fiat, finding, finding of guilt, holding, idea, inference, intelligence, notion, opinion, option, order, outcome, perception, persuasion, point of view, position, pronouncement, prudence, punishment, recommendation, regard, relief, res judicata, result, ruling, sagacity, sense, sensibility, standpoint, verdict, vote
JUDGMENT, practice. The decision or sentence of the law, given by a court of
justice or other competent tribunal, as the result of proceedings instituted
therein, for the redress of an injury.
2. The language of judgments, therefore, is not that "it is decreed," or "resolved," by the court; but "it is considered," (consideratum est per curiam) that the plaintiff recover his debt, damages, or possession, as the case may require, or that the defendant do go without day. This implies that the judgment is not so much the decision of the court, as the sentence of the law pronounced and decreed by the court, after due deliberation and inquiry.
3. To be valid, a judicial judgment must be given by a competent judge or court, at a time and place appointed by law, and in the form it requires. A judgment would be null, if the judge had not jurisdiction of the matter; or, having such jurisdiction, he exercised it when there was no court held, or but of his district; or if be rendered a judgment before the cause was prepared for a hearing.
4. The judgment must confine itself to the question raised before the court, and cannot extend beyond it. For example, where the plaintiff sued for an injury committed on his lands by animals owned and kept carelessly by defendant, the judgment may be for damages, but it cannot command the defendant for the future to keep his cattle out of the plaintiff's land. That would be to usurp the power of the legislature. A judgment declares the rights which belong to the citizen, the law alone rules future actions. The law commands all men, it is the same for all, because it is general; judgments are particular decisions, which apply only to particular persons, and bind no others; they vary like the circumstances on which they are founded.
5. Litigious contests present to the courts facts to appreciate, agreements to be construed, and points of law to be resolved. The judgment is the result of the full examination of all these.
6. There are four kinds of judgments in civil cases, namely: 1. When the facts are admitted by the parties, but the law is disputed; as in case of judgment upon demurrer. 2. When the law is admitted, but the facts are disputed; as in, case of judgment upon a verdict. 3. When both the law and the facts are admitted by confession; as, in the case of cognovit actionem, on the part of the defendant; or nolle prosequi, on the part of the plaintiff. 4. By default of either party in the course of legal proceedings, as in the case of judgment by nihil dicit, or non sum informatus, when the defendant has omitted to plead or instruct his attorney to do so, after a proper notice or in cases of judgment by non pros; or, as in case of nonsuit, when the plaintiff omits to follow up his proceedings.
7. These four species of judgments, again, are either interlocutory or final. Vide 3 Black. Com. 396; Bing. on Judg. 1. For the lien of judgment in the several estates, vide Lien.
8. A list of the various judgments is here given.
9. Judgment in assumpsit is either in favor of the plaintiff or defendant; when in favor of the plaintiff, it is that he recover a specified sum, assessed by a jury, or on reference to the prothonotary, or other proper officer, for the damages which he has sustained, by reason of the defendant's non-performance of his promises and undertakings, and for full costs of suit. 1 Chit. Pl. 100. When the judgment is for the defendant, it is that he recover his costs.
10. Judgment in actions on the case for torts, when for the plaintiff, is that he recover a sum of money ascertained by a jury for his damages occasioned by the committing of the grievances complained of, and the costs of suit. 1 Ch. Pl. 147. When for the defendant, it is for costs.
11. Judgment of cassetur breve, or billa, is in cases of pleas in abatement where the plaintiff prays that his "writ" or "bill" "may be quashed, that he may sue or exhibit a better one." Steph. Pl. 130, 131, 128 Lawes, Civ. PI.
12. Judgment by confession. When instead of entering a plea, the defendant chooses to confess the action; or, after pleading; he does, at any time before trial, both confess the action and withdraw his plea or other allegations; the judgment against him, in these two cases, is called a judgment by confession or by confession relicta verificatione. Steph. Pl. 130.
13. Contradictory judgment. By this term is understood, in the state of Louisiana, a judgment which has been given after the parties have been heard, either in support of their claims, or in their defence. Code of Pract. art. 535; 11 L. R. 366, 569. A judgment is called contradictory to distinguish it from one which is rendered by default.
14. Judgment in covenant; when for the plaintiff, is that he recover an ascertained sum for his damages, which he has sustained by reason of the breach or breaches of the defendant's covenant, together with costs of suit. 1 Chitty's Plead. 116, 117. When for the defendant, the judgment, is for costs.
15. Judgment in the action of debt; when for the plaintiff, is that he recover his debt, and in general, nominal damages for the detention thereof; and in cases under the 8 and 9 Wm. III. c. 11, it is also awarded, that the plaintiff have execution for the damages sustained by the breach of a bond, conditioned for the performance of covenants; and that plaintiff recover full costs of suit. 1 Chitty's Pl. 108, 9.
16. In some penal and other particular actions the plaintiff does not, however, always recover costs. Espinasse on Pen. Act. 154: Hull. on Costs, 200; Bull. N. P. 333; 5 Johns. R. 251.
17. When the judgment is for the defendant, it is generally for costs. In some penal actions, however, neither party can recover costs, 5 Johns. R. 251.
18. Judgment by default, is a judgment rendered in consequence of tho non-appearance of the defendant, and is either by nil dicit; vide Judgment by nil dicit, or by non sum informatus; vide Judgment by non sum informatus.
19. This judgment is interlocutory in assumpsit, covenant, trespass, case, and replevin, where the sole object of the action is damages; but in debt, damages not being the principal object of the action, the plaintiff usually signs final judgment in the first instance. Vide Com. Dig. Pleader, B 11 and 12, E 42; 7 Vin. Ab. 429; Doct. Pl. 208; Grah. Pr, 631 Dane's Ab. Index, h.t.; 3 Chit. Pr. 671 to 680; Tidd's Pr. 563; 1 Lilly's Reg. 585; and article Default.
20. Judgment in the action of detinue; when for the plaintiff, is in the alternative, that he recover the goods, or the value thereof, if he cannot have the goods themselves, and his damage for the detention and costs. 1 Ch. Pl. l21, 2; 1 Dall. R. 458.
2l. Judgment in error, is a judgment rendered by a court of error, on a record sent up, from an inferior court. These judgments are of two kinds, of affirmance and reversal. When the judgment is for the defendant in error, whether the errors assigned be in law or in fact, it is "that the former judgment be affirmed, and stand in full force and effect, the said causes and matters assigned for error notwithstanding, and that the defendant in error recover $____ for his damages, charges and costs which he hath sustained," &c. 2 Tidd's Pr. 1126; Arch. Forms, 221. When it is for the plaintiff in error, the judgment is that it be reversed or recalled. It is to be reversed for error in law, in this form, that it be reversed, annulled and altogether holden for nought." Arch. Forms, 224. For error in fact the, judgment is recalled, revocatur. 2 Tidd's Pr. 1126.
22. A final judgment is one which puts an end to the suit.
23. When the issue is one in fact, and is tried by a jury, the jury at the time that they try the issue, assess the damages, and the judgment is final in the first instance, and is that the plaintiff do recover the damages assessed.
24. When an interlocutory judgment has been rendered, and a writ of inquiry has issued to ascertain the damages, on the return of the inquisition the plaintiff is entitled to a final judgment, namely, that he recover the amount of damages so assessed. Steph. Pl. 127, 128.
25. An interlocutory judgment, is one given in the course of a cause, before final judgment. When the action sounds in damages, and the issue is an issue in law, or when any issue in fact not tried by a jury is decided in favor of the plaintiff, then the judgment is that the plaintiff ought to recover his damages without specifying their amount; for, as there has been no trial by jury in the case, the amount of damages is not yet ascertained. The judgment is then said to be interlocutory.
26. To ascertain such damages it is the practice to issue a writ of inquiry. Steph. Pl. 127. When the action is founded on a promissory note, bond, or other writing, or any other contract by which the amount due may be readily computed, the practice is, in some courts, to refer it to the prothonotary or clerk to assess the damages.
27. There is one species of interlocutory judgment which establishes nothing but the inadequacy of the defence set up this is the judgment for the plaintiff on demurrer to a plea in abatement, by which it appears that the defendant has mistaken the law on a point which does not affect the merits of his case; and it being but reasonable that he should offer, if he can, a further defence, that judgment is that he do answer over, in technical language, judgment of respondeat ouster. (q.v.) Steph. Plead, 126; Bac. Ab. Pleas, N. 4; 2 Arch. Pr. 3.
28. Judgment of nil capiat per breve or per billam. When an issue arises upon a declaration or peremptory plea, and it is decided in favor of the defendant, the judgment is, in general, that, the plaintiff take nothing by his writ, (or bill,) and that the defendant go thereof without day, &c. This is called a judgment of nil capiat per breve, or per billam. Steph. Pl. 128.
29. Judgment by nil dicit, is one rendered against a defendant for want of a plea. The plaintiff obtains a rule on the defendant to plead within a time specified, of which he serves a notice on the defendant or his attorney; if the defendant neglect to enter a plea within the time specified, the plaintiff may sign judgment against him.
30. Judgment of nolle prosequi, is a judgment entered against the plaintiff, where, after appearance and before judgment, he says, "he will not further prosecute his suit." Steph. Pl. 130 Lawes Civ. Pl. 166.
31. Judgment of non obstante veredicto, is a judgment rendered in favor of the plaintiff, without regard to the verdict obtained by the defendant.
32. The motion for such judgment is made where after a pleading by the defendant in confession and avoidance, as, for example, a plea in bar, and issue joined thereon, and verdict found for, the defendant, the plaintiff on retrospective examination of the record, conceives that such plea was bad in substance, and might have been made the subject of demurrer on that ground. If the plea was itself substantially bad in law, of course the verdict, which merely shows it to be true in point of fact, cannot avail to entitle the defendant to judgment; while on the other hand the plea being in confession and avoidance, involves a confession of the plaintiff's declaration, and shows that he was entitled. to maintain his action. In such case, therefore, this court will give judgment for the plaintiff, without regard to the verdict; and this, for the reasons above explained, is called a judgment upon confession. Sometimes it may be expedient for the plaintiff to move for judgment non obstante, &c., even though the verdict be in his own favor; for, if in such case as above described, he takes judgment as upon the verdict, it seems that such judgment would be erroneous, and that the only safe course is to take it as upon confession. 1 Wils. 63; Cro. Eliz, 778 2 Roll. Ab. 99. See also, Cro. Eliz. 2 1 4 6 Mod. 1 0; Str. 394; 1 Ld. Raym. 641; 8 Taunt. 413; Rast. Ent. 622; 1 Wend. 307; 2 Wend. 624; 5 Wend. 513; 4 Wend. 468; 6 Cowen, R. 225. See this Dict. Repleader, for the difference between a repleader and a judgment non obstante veredicto.
33. Judgment by non sum informatus, is one which is rendered, when instead of entering a plea, the defendant's attorney says he is not informed of any answer to be given to the action. Steph. Pl. 130.
34. Judgment of non pros. (from non prosequitur,) is one given against the plaintiff, in any class of actions, for not declaring, or replying, or surrejoining, &c., or for not entering the issue.
35. Judgment of nonsuit, Practice, is one against the plaintiff, which happens when, on trial by jury, the plaintiff, on being called or demanded, at the instance of the defendant, to be present while the jury give their verdict, fails to make his appearance.
36. In this case, no verdict is given, but the judgment of nonsuit passes against the plaintiff. So if, after issue be joined, the plaintiff neglect to bring such issue on to be tried in due time, as limited by the practice of the court, in the particular case, judgment will be also given against him for this default; and it is called judgment as in case of nonsuit. Steph. Pl. 131.
37. After suffering a nonsuit, the plaintiff may commence another action for the same cause for which the first had been instituted.
38. In some cases, plaintiffs having obtained information in what manner the jury had agreed upon their verdict before it was delivered in court, have, when the jury were ready to give in such verdict against them, suffered a nonsuit for the purpose of commencing another action and obtaining another trial. To prevent this abuse, the legislature of Pennsylvania have provided, by the Act of March 28, 1814, 6:Reed's L. 208, that "whenever on the trial of any cause, the jury shall be ready to give in their verdict, the plaintiff shall not be called, nor shall he then be permitted to suffer a nonsuit."
39. Judgment quod computet. The name of an interlocutory judgment in an action of account render that the defendant do account, quod computet. Vide 4 Wash. C. C. R. 84; 2 Watts, R. 95; 1 Penn. R. 138.
40. Judgment quod recuperet. When an issue in law, other than one arising on a dilatory plea, or an issue in fact, is decided in favor of the plaintiff, the judgment is, that the plaintiff do recover, which is called a judgment quod recuperet. Steph. Pl. 126; Com. Dig. Abatement, I 14, I 15; 2 Arch. Pr. 3. This judgment is of two kinds, namely, interlocutory or final.
41. Judgment in replevin, is either for the plaintiff or defendant.
42.-1. For the plaintiff. 1. When the declaration is in the detinuit, that is, where the plaintiff declares, that the chattels "were detained until replevied by the sheriff," the judgment is that he recover the damages assessed by the jury for the taking and unjust detention, or for the latter only, where the former was justifiable, as also his costs. 5 Serg. & Rawle, 133 Ham. N. P. 488.
43.-2. If the replevin is in the detinet, that is, where the plaintiff declares that the chattels taken are "yet detained," the jury must find, 'in addition to the above, the value of the chattels, (assuming that they are still detained,) not in a gross sum, but each separate article; for tho defendant, perhaps, will restore some, in which case the plaintiff is to recover the value of the remainder. Ham. N. P. 489; Fitz. N. B. 159, b; 5 Serg. & Rawle, 130.
44.-2. For the defendant. 1. If the replevin be abated, the judgment is, that the writ or plaint abate, and that the defendant (having avowed) have a return of the chattels.
46.-2. When the plaintiff is nonsuited) the judgment for the defendant, at common law, is, that the chattels be restored to him, and this without his first assigning the purpose for which they were taken, because, by abandoning his suit, the plaintiff admits that he had no right to dispossess the defendant by prosecuting the replevin. The form of this judgment. is simply "to have a return," without adding the words "to hold irreplevisable." Ham. N. P. 490.
46. As to the form of judgments in cases of nonsuit, under the 21 Hen. VIII. c. 19, and 17 Car. II. c. 7, see Ham. N. P. 490, 491; 2 Ch. Plead. 161; 8 Wentw. Pl. 116; 5 Serg. & Rawle, 132; 1 Saund. 195, n. 3; 2 Saund. 286, n. 5. It is still in the defendant's option in these cases, to take his judgment pro retorno habendo at common law. 5 Serg. & Rawle, 132; 1 Lev. 265; 3 T. R. 349.
47.-3. When the avowant succeeds upon the merits of his case, the common law judgment is, that he "have return irreplevisable," for it is apparent that he is by law entitled to keep possession of the goods. 5 Serg. & Rawle, 135; Ham. N. P. 493; 1 Chit. Pl. 162. For the form of judgments in favor of the avowant, under the last mentioned statutes, gee Ham. N. P. 494- 5.
48. Judgment of respondeat ouster. When there is an issue in law, arising on a dilatory plea, and it is decided in favor of the plaintiff, the judgment is only that the defendant answer over, which is called a judgment of respondeat ouster. The pleading is accordingly resumed, and the action proceeds. Steph. Pl. 126; see Bac. Abr. Pleas, N 4; 2 Arch. Pr. 3.
49. Judgment of retraxit, is one where, after appearance and before judgment, the, plaintiff enters upon the record that he "withdraws his suit;" in such case judgment is given against him. Steph. Pl. 130.
50. Judgment in an action on trespass, when for the plaintiff, is, that he recover the damages assessed by the jury, and the costs. For the defendant, that he recover the costs.
51. Judgment in action on the case for trover, when for the plaintiff, is, that he recover damages and costs. 1 Ch. Pl. 157, For the defendant, the judgment is, that he recover his costs.
52. Judgment of capiatur. At common law, on conviction, in a civil action, of a forcible wrong, alleged to have been committed vi et armis, &c., the defendant was obliged to pay a fine to the king, for the breach of the peace implied in the act, and a judgment of capiatur pro fine was rendered against him, under which he was liable to be arrested, and imprisoned till the fine was paid. But by the 5 W. & M. c. 12, the judgment of capiatur pro fine was abolished. Gould on Pl. Sec. 38, 82; Bac. Ab. Fines and Amercements, C 1; 1 Ld. Raym. 273, 4; Style, 346. See Judgment of misericordia, 53. Judgment of misericordia. At common law, the party to, a suit who did not prevail was punished for his unjust vexation, and therefore judgment was given against him, quod sit in misericordia pro falso clamore. Hence, when the plaintiff sued out a writ, the sheriff was obliged to take pledges of prosecution before he returned it, which when fines and amercements were considerable, were real and responsible persons, and answerable for those amercements; but now they are never levied, and the pledges are merely formal, namely, John Doe and Richard Roe. Bac. Ab. Fines, &c., C 1 1 Lord Ray. 273, 4.
54. In actions where the judgment was against the defendant, it was entered at common law, with a misericordia or a capiatur. With a misericordia in actions on contracts, with a capiatur in actions of trespass, or other forcible wrong, alleged to have been committed vi et armis. See Judgment of capiatur; Gould on Pl. c. 4, Sec. 38, 82, 83.
55. Judgment quod partitio fiat, is a judgment, in a writ of partition, that partition be made; this is not a final judgment. The final judgment is, quod partitio facta firma et stabilis in perpetuum teneatur. Co. Litt. 169; 2 Bl. Rep. 1159.
56. Judgment quod partes replacitent. The name of a judgment given when the court award a repleader.
57. When issue is joined on an immaterial point, or a point on which the court cannot give a judgment determining the right, they award a repleader or judgment quod partes replacitent. See Bac. Ab. Pleas, &c., M; 3 Heyw. 159; Peck's R. 325. See, generally, Bouv. Inst. Index, h.t.
JUDGMENT, ARREST OF, practice. This takes place when the court withhold
judgment from the plaintiff on the ground that there is some error appearing
on the face of the record, which vitiates the proceedings. In consequence of
such error, on whatever part of the record it may arise, from the
commencement of the suit to the time when the motion in arrest of judgment
is made, the court are bound to arrest the judgment.
2. It is, however, only with respect to objections apparent on the record, that such motions can be made. They cannot, in general, be made in respect to formal objections. This was formerly otherwise, and judgments were constantly arrested for matters of mere form; 3 Bl. Corn. 407; 2 Reeves, 448; but this abuse has been long remedied by certain statutes passed at different periods, called the statutes of amendment and jeofails, by the effect of which, judgments, cannot, in general, now be arrested for any objection of form. Steph. Pl. 117; see 3 Bl. Com. 393; 21 Vin. Ab. 457; 1 Sell. Pr. 496.