Webb v. Webb , 16 Vt. 636 ( 1844 )

The opinion of the court was delivered by

Redfield, J.

The only question in the present case is in regard to the right of the plaintiff to recover more than nominal damages on the state of the pleadings. In this case the breaches were assigned in the declaration. The defendant pleaded, as he must, so as to meet the specific breaches assigned; — but, as he chose to give no evidence in support of his plea, the case stands the same as if he had suffered default, or had demurred, or let judgment pass by nil dicit. In the present case the breaches are assigned in general terms, and in round numbers.,

My own views upon this subject are fully expressed in a dissenting opinion in a preceding case in this volume. Hyde v. Moffat, ante, page 271.

It is well settled in Westminster Hall, and in most of the American States, that, in cases of judgment on demurrer, by default, or nil dicit, the plaintiff is not entitled to judgment for damages, until he executes a writ of inquiry, unless in some few cases, where the assessment of damages, is mere matter of computation, — as in the case of a bond, bill, or note, or other written contract, — in which case it will be referred'to a master to compute the damages. Marshall v. Griffin, 21 E. C. L. 377. Green v. Hearne, 3 T. R. 301. And in all open actions it is good ground for sustaining a writ of error, if the plaintiff, in such case, enter up judgment for the amount claimed in his declaration, without executing a writ of inquiry. And in executing the writ of inquiry for damages, in such cages, .the plaintiff is only entitled to such damages as he proves, or such as necessarily result from the acts alleged in his declaration, and which he must prove, in order to recover upon the general issue. Tripp v. Thomas, 10 E. C. L. 139.

In the English practice the plaintiff is always entitled to the open and close in the argument, in all actions of open damages, let the state of the pleadings be what it will, — on the ground that he must go forward in showing damages. In the case of Green v. Hearne the rule upon this subject is correctly laid down by Buller., J., and, so far as I know, has been adhered to in all the subsequent cases. It is in these words; “Where a defendant suffers judgment to go by default, he admits the cause of action, and thus far an action for money had and received and an action upon a bill are alike; but beyond that there is no similarity. For in the former case the defendant only admits something to be due; and, as the demand is uncertain, the plaintiff must prove the debt before the jury.” This view of the case is more or less distinctly sustained by the following cases, among others ; Thelluson v. Fletcher, Dougl. 314 ; Holdipp v. Otway, 2 Saund. R. 106 and notes; Hewet v. Mantel, 2 Wils. 374 ; Shepherd v, Charter, 4 T. R. 275 ; Berthen v. Street, 8 T. R. 326; Ib. 395 ; Moody v. Pheasant, 2 B. & P. 446; Livingston v. Livingston’s Ex’rs, 3 Johns. 252; Foster v. Smith, 10 Wend. 377; Bates v. Loomis, 5 Wend. 134; Kerker v. Carter, 1 Hill 101; Cooper v. Blick, 42 E. C. L. 975, 985.

In this State it is not common to execute a writ of inquiry, — the damages, in cases of default, judgment upon demurrer, and by nil dicit, being usually assessed by the court, or by some person by them appointed for that purpose. This practice we have taken, I presume, mainly from Connecticut; for I do not find that the same practice obtains so generally elsewhere. But the course of trial and the necessity of proof are the same every where, and under- all forms of procedure. And in this state, by statute, either party is entitled to have the damages assessed by the jury,. — which would be a privilege of very little import, if the judgment had already established conclusively the rule, or the quantum, of damages. 1 Sw. Dig. 784, 785. The same rule applies, in the English practice, to paying money into court. Cooper v. Blick, 42 E. C. L. 975.

Judgment affirmed.