overlooked. Again, it is further determined itself to determine and reduce the dam. that on the assessment of damages the ages, observing that in such a case the jury has no concern with the principal is- finding of the jury was but an inquest of sue, and that its finding on that question office, and that the court could award damis "surplusage." And, moreover, it is ages at its discretion; at the same time disclearly decided that the justices may them-tinguishing the case at bar from a case selves award the damages, or suffer the where the principal issue was determined jury to inquire concerning damages for by the jury, in which latter case power to their justification and to enlighten their increase or diminish damages was disconsciences, but that it is only matter of claimed. practice, and not matter of right, which permits the jury to inquire concerning damages when the defendant has suffered a default. office eux, In Year Book 32 Hen. VI. fol. 1 (1454), it is said: "Briefe de Dette fuit porte et les parties fuerunt al issue et les iourours chaunter pur le playntif as damages de (xx) vi s viii d et les costages de xx 8. Wangforde pria que ses damages poiet est encrease et issī tfuer pur q Fulthorpe de xxvi §, viii a taxes par 1 enquest et xiiis, iiii de ouster taxes par le court;" thus increasing the finding of the jury by one half of debt and costs. In the Year Book 19 Hen. VI. fol. viii (1441), one of three defendants in trespass made default, and the others justified the alleged. trespass as his servant, to dit; Recoues vostr dette et vostr damage whom they averred the plaintiff had sold the goods in question. In the argument as to the county in which the writ of inquiry as to damages against the defaulting defendant should be executed, it was In Year Book 34 Hen. VI. fol. 24 (1456), said by the court: "Si br isser denquec in the exchequer chamber, Fortescue said des dam cel enquest nest q un enquest d'- that the awarding judgment on default in et no poies au attaint vs debt, and the inquiry of damages by a jury issint s icy en nr discrec' on default in trespass, rested merely on the coment voillomus faire;" and (fol. x) usage of the court, and had no other reathereafter the writ of inquiry was executed son, and that, indeed, none could give a and returned into court, and the plaintiff reason for the difference in practice, as folprayed judgment, and Hody, Chief Justice lows: "Et l'usage fait en ley et sans aut of the King's bench, said: "Ceux damages reason qr l'usage en bē de det est que si sont trop grand pur le tierce par en le def. pled un acquitance ou reles en barī taunt q ceo ne fuit forsqu un enquest d'offir et le pl' dedit le fait issint q ils sont a isde quel le def. ne puit auer atteint pur out- sue etc. et apres le def. face defaut il serra ragious damages solonqu le statut come il cōdempne, &c. Mes si le def. en bre de purra si passera del principal, et auxi Tñs pled un reles et le pl' dedit, etc. et quant vous ag brief al vie denquerer des apres issue, &c. le def. face defaut; en cest damages vous puisses auer agarder dam-cas ne serra mes un enqst p def. et nul ages adonques solonqu vostre discrec et is- condempnacion come serra en le bre de det sint poies faire a ore pur q il nest q enquest d'office." And after reducing the damages "ex assēsu socioru (m) suoru (m)," the report continues: "Quod nota, ou les iustices ont amesnus les damages taxes par I enquest;" adding: "Mes auter serra si mesme 1 enquest ust passe sur le principal car donques ils nussent ewe tiel poiar de abriger les damages eome devant ne d'enlarger nul damages forsqu soulement des costages." Mes nient d'enlarger damages quant al principal et si 1 enquest dōn outragious damages les iustic' ne amesur eux purra surcesser de lour iugemt cõe fuyt fait par Martin, Justice, anno xiiii, mesme le roy." "Et nota div(er)-sitatem." Upon this case it is to be noted that the action was trespass de bonis asportatis, in which the damages are uncertain; that after default of one of the three defendants, and a writ of inquiry executed as to the damages, the court, of its own motion, pronounced the finding of the jury to be too great, and then of its own motion proceeded &c. mes nul saver dire le diversitie de reason p e tre l un et l autec mes l'usage tm." From which it appears that the action of the court in these cases was solely a matter of practice, and not a matter of right. In Year Book 39 Hen. VI. fol. 1 (1461), trespass was brought against several defendants, who pleaded in bar, and one of them made default, and the question was whether a writ of inquiry of damages should issue against the defaulting defendant before the trial of the issue joined between the plaintiff and other defendants. And Moyle said, "Si le bře isser ore pur enquer les dam nest forsqu enquest d'office et nemy al myse des parties," and that where damages are taxed by a jury on issue joined between the parties an attaint would lie. "Mes del enquest d'office nil home auera atteynt et issint pur charger eux qui ont pled' al issue des damages assesses p enquest d'office serra grend' mischiefe." In Year Book 16 Edw. IV. fol. 1 (1476), is the following case: "Dette sur un obliga le def. dit q il fuit un lay home et nient let et ce obligac fuit lye a luy sur certeine cond', et issint son oblig. sans condicion nient s fait, et sur ceo issue fuit prise et al iure fuit don en evidece que le def. fuit home letr. Et donqs le def: dit que le verite fuit et est que il est letter home, mes en fait le pl' promist le def. que il ne voile suer le oblig. si le defendaunt ne voile enchase en le park le pl' puis cel temps issint est graunde conscience en cest mati pur les dam et auxi pur le duety, et sur 1 enquest fuer charge per les costages et damag. et puis il revient al barre a dire lour verdit Sandes, le clerke, dit al Crier dd' le pl'. Catesby ē ne besoign my, car ceo n'est a ore forsqu un enquest d'office quant le point del issue est conu et les Justiē sils voient purī au taxe les dam, per que le iure taxe les dam et costages et le pl' ne fuit my dd', qd nota." Here the court again affirms its power to assess damages when the point at issue is admitted, and restates the law as to the effect of the finding of a jury on the question of damages where liability is admitted, as it obviously is admitted, by a default. Leaving the Year Books, and observing more recent decisions, we find that the distinction is more clearly made between the execution of a writ of inquiry of damages and a verdict in its proper signification. In Pasch. 29 Eliz. (1587), Gouldsb. 49, it was determined, in an action of trespass for an assault, that the finding of a jury on a writ of inquiry in a defaulted case was not a verdict, "for this shall not be said a verdict; whereto the court agreed, for a verdict is that which is put in issue by the joyning of the parties." And in Mich. 37 and 38 Eliz. it was again said, in Courtier v. Barret (1595) Cro. Eliz. pt. 1, p. 412, by the whole court of King's bench, in a case of replevin, where the parties were at issue and the plaintiff was nonsuited after evidence and damages were assessed by jury for the avowant, that "here the plaintiff being nonsuited there is not any verdict given; but, in that whereof the jury are to enquire of damages their verdict is but an office of inquest and no verdict," etc. And see Ireland's Case (1594) Cro. Eliz. pt. 1, p. 339, and Grey v. Willoughby (1595) F. Moore, 465, pl. 657. And in Year Book 47 Edw. III. fol. 19 (1374), it was said by Finchden, Chief Justice: "Ne 1 enquest ne fuit my charge de ceo que la party mesme avoit conus et sic est troue encrountr luy." An even more positive recognition of the essential difference between a verdict of a jury in a trial on issue joined and the find Law ing as to damages in a writ of inquiry is contained in the act of Parliament passed in the fourth year of Queen Anne's reign (1705), 4 Anne, chap. XVI., and entitled "An Act for the Amendment of the and the Better Advancement of Justice," the 2d section of which is as follows: "And be it further Enacted by the Authority aforesaid, That from and after the said first Day of Trinity Term (1706) all the Statutes of Jeofails shall be extended to Judgments which shall at any Time afterwards be entered upon Confession, Nihil dicit, or Non sum informatus in any Court of Record; and no such Judgment shall be reversed, nor any Judgment upon any Writ of Enquiry of damages executed thereon be staid or reversed for or by reason of any Imperfection, Oinission, Defect, Matter or Thing whatsoever, which would have been aided and cured by any of the said Statutes of Jeofails in case a Verdict of twelve Men had been given in the said Action or Suit, so as there be an original Writ or Bill and Warrants of Attorney duly filed according to the Law as it is now used." It will be noticed here that a "Verdict of twelve Men" is contrasted in this act with a "Writ of Enquiry of damages executed," and that the provisions of the statutes concerning the former are "extended" to the latter, thus clearly recognizing as well as preserving the two methods of procedure, and being a parliamentary recognition that the finding in the latter case was a different matter from a "Verdict of twelve Men." And see Mallory v. Jennings (1731) in the King's bench, Mich. 4 Geo. II. Fitzg. 162. So in Foster v. Jackson (1616) Trin. 13 Jac. Hobart, 52a, it is said of a verdict: "First lay this for a Ground, that if the Jury find any Thing, that is meerly out of the Issue, that such a Verdict, for so much is utterly void and of no Force, though it conclude in general, for or against the Plaintiff or the Defendant, whereof the Reason is plain, which is, that the Jurors are Tryers of Matter of Fact put in Issue between the Parties, and their Oath, which contains their commission is, that they shall truly try the Issue between Party and Party... So that whatsoever they do try besides the Issue is per non juratos, as a Cause judged by the Court, that hath no Jurisdiction of the Cause coram non judice, and utterly void, for a Verdict must not be to the Action, that might have been pleaded, but to the Issue, which is pleaded, and in their Charge. . And so upon the Matter, if that extravagant Part of the Verdict be false, it is no Perjury, neither doth any Attaint lie upon it, for there is no Party grieved nor any Thing to be restored, neither can it be used as in evi dence in any other Tryal, because there is fense was great and such outragious Acts no Redress if it be False. are not to be slightly punished." And see Dames v. Rock (1625) Mich. 1 Car. Bend loes, 158; and Wolf v. Meggs (1597) Cro. Eliz. pt. 2, p. 544; Hooper v. Pope (1626) Latch, 223; and Mallet & Ferrer's Case For Jurors are bound to their Issues, but Judges have Power over the whole Matter, and that hath also his Bounds, as to the Matter within the Record, not at large." Mary, 2 Dyer, 105a; More's Case (1674) In Goodwin v. Welsh (1610) Pasch. 7 (1588) Hil. 30 Eliz. 1 Leon. 139; and TripJac. Yelv. 152, the plaintiff recovered dam-cony's Case (1554) Mich. 1 & 2 Philip & ages in trespass de bonis asportatis against two defendants by default, and it was held: "And by all the justices, they themselves as judges, if they would, might in these cases assess damages without issuing any writ, for it issues only quia nescitur quæ damna; but if they will trouble themselves with the assessment of damages, they may. But it is otherwise in the case of non cul. pleaded, for there the trespass is denied which must be tried by the jury and there the property and the value also ought to be proved." And in a note to this case by the late Theron Metcalf, in the 1st American edition of Yelverton's Reports, published in 1820, it is stated: "In Rhode Island the court on default and demurrer assess damages in all actions, whether of tort or of contract." See also, to the same effect, 1 Brownlow & G. 214, and Cro. Jac. 220. In the reign of William III. (1695) was decided, in the King's bench, Harbert's Case, Skinner, 595. Here the plaintiff in replevin became nonsuit after joinder in trial and evidence to a jury, and the jury were discharged without assessing the defendant's damages. And at a later day, on a motion for a writ of inquiry for that purpose, it was said by Holt, Chief Justice: "The Jury here are discharged from giving their Verdict by the Nonsuit; and therefore, if they had given a Verdict for the Damages this had been but as an Inquest of Office upon which no Attaint would lie if the Damages had been excessive. But where the Jury gives a Verdict and Under the protectorate of Cromwell, in does not give Damages there such a De1651, was decided the case of Davis v. Fo- fect should not be supplied; for if the Jury liot (Banc. Sup.) Style, 310. Davis sued had given Damages this was as Part of Lord Foliot for an assault, and on a writ their Verdict upon which an Attaint lay of inquiry £200 damages were awarded by if they are excessive, and therefore if this the jury. "The Plaintiff moved the Court shall be supplied by a Writ of Inquiry for a new writ because by reason of the will- which is but an Inquest of Office, if the fulness of the Jury the damages were found Damages are excessive the Party shall be too small. Roll, Chief Justice, an- oppressed without the Benefit of an Atswered, though we grant not a new writ, taint." And see Herbert v. Waters, 1 Salk. yet we can increase the damages upon view 205, 1 Ld. Raym. 59, 12 Mod. 85. In Herof the wound, and here appears to have been bert v. Waters, Carth. 362, decided in the a foul Battery by the dagger produced in court of King's bench in 1695, the rule is the Court and by the party himself that is thus stated as to a writ of inquiry of damwounded, and it is not fit that a wilful ages to an avowant upon a nonsuit in reJury should prejudice the party, therefore plevin: "Where the Matter omitted to be either consent to a new writ, or else bring inquired by the principal Jury is such as your witnesses on both sides, and we will goes to the very Point of the Issue, and hear the motion again." And later, "Roll, upon which if 'tis found by the Jury, an Chief Justice, said-3 things are consider- Attaint will lie against them by the Party, able. 1. Whether the court can increase the if they have given a false Verdict; there damages; 2ly, Whether the wound be ap- such Matter cannot be supplied by a Writ parent; and 3ly, Whether the damages given of Inquiry, because thereby the Plaintiff be too small. The Court, upon view of the may lose his Action of Attaint, which will party and examination of Chirurgions and not lie upon an Inquest of Office. But Witnesses on both sides upon Oath, did con- where the Matter omitted to be inquired clude that they might increase the dam- by the, principal Jury doth not go to the ages, and that the wound was apparent, and Point in Issue or necessary Consequence that the damages were too small; and thereof, but are Things meerly collateral, therefore they increased them to £400 and as Damages are in this Case, and the Four said they would not increase them more be- usual Inquiries on a Quare Impedit, such cause they could not inquire into all the may be supplied by a subsequent Writ of circumstances of the fact as the jury Inquiry, without any Damage to the Party; might, but they thought fitting to increase because if the same had been inquired into them in some proportion because the of- by the principal Jury, it would have been (as to those Particulars) no more than an Inquest of Office, upon which an Attaint will not lie." Brampton's Case (1616) Mich. 13 Jac. 1 Rolle Rep. 272; Cheyney's Case, 10 Coke, 118; Heydon's Case (1613) Trin. Jac. 11 Coke, 5. During the same reign (Hil. Term, 8, 9, Wm. III.; 1696) was also decided Cook v. Beal, 1 Ld. Raym. 176. This was trespass for an assault, and not guilty pleaded, and verdict for plaintiff, who later moved for an increase of the damages upon affidavit that he had partially lost the sight of his eye by the assault; and therefore it was "resolved that the court may increase the damages if the wound be apparent though it be not a maim. And Powell, Justice, said that Holt, Chief Justice, was of that opinion. And he [Powell, J.,] said that the court might increase the damages upon a writ of enquiry because that was but a bare inquest of office." And see 3 Salk. 115. And in the following cases the assessment of damages by a jury on a writ of inquiry was set aside by the court of King's bench: Woodford v. Eades (1721) 1 Strange, 425, because damages were too small; and for the same cause in Hall v. Stone (1722) 1 Strange, 515; and in Markham v. Middleton (1746) 2 Strange, 1259; Parr v. Purbeck (1724) 8 Mod. 196. In Beardmore v. Carrington (1764) 2 Wils. 244, it was said by the court, in considering the question of damages awarded in an action of trespass and false imprisonment after joinder on the general issue and trial to a jury: "There is also a difference between a principal verdict of a jury and a writ of inquiry of damages, the latter being only an inquest of office to inform the conscience of the court, and which they might have assessed themselves without any inquest at all." And in Hewit v. Mantell (1768) 2 Wils. 372, it was said, by Wilmot, Chief Justice: "The taking of the inquisition and entering final judgment were only the conclusion and necessary consequence of the interlocutory judgment, for the court themselves, if they had so pleased, might upon the interlocutory judgment have assessed the damages, and thereupon given final judgment before Bibbinses became bankrupts, and the inquisition is only a matter of course taken to inform the conscience of the court." Again, in Bruce v. Rawlins (1770) 3 Wils. 61, the plaintiff recovered damages in trespass by default for breaking and entering plaintiff's house and searching his effects. The court said, in considering the damages assessed by the jury on the writ of inquiry: "Wilmot, Chief Justice. This is an inquest of office to inform the conscience of the court, who, if they please, may them selves assess the damages." And see Coleman v. Mawby (1730) 2 Strange, 854; and also Creswick v. Saunders (1682) 34 Car. II., 2 Show. 200. In Rhode Island the act of the general assembly, passed in 1647, creating the "Generall Court of Tryalls," made provision for the use of writs of inquiry of damages in defaulted cases, and also provided for the proceeding by writ of attaint for a false verdict, as follows (1 R. I. Col. Rec. p. 196): "But in case after a declaration is filed in expectation of an answer, or to make his defense, and he doth not, then the plaintiff taketh him by default, which is called confessing the action, and then the Recorder's office shall be, to enter and record a Nihil dicit (id est), he saith nothing thereon, and so shall he send out a writ of enquiry of dammages unto the Towne where the defendant lives. And the head officer of the Towne at the next Towne Court, shall enquire of damages, and by a writ of destringes to the Sargant, shall cause the defendant for that purpose to come to the Court, and in case he appeare not, he shall forfeit the distraint, and the head officer of the Towne may distraine again and again." This provision was changed in 1650 (1 R. I. Col. Rec. 224) by a provision "that in case a Nihil dicit be taken in any Courte, the Jury of that Courte shall make inquirie," apparently extending to all courts the provisions of the act of 1648, relative to the "General Court of Tryalls" only, and which specified (p. 211) that in case of a nihil dicit in that court "that then the Jury Empanelled for the said Court shall enquire of Damages," etc. And also (p. 200): "And be it further enacted by the authority of this present Assemblie, that if any false verdict be given in any action, suit, or demand, either in this or in any other Court of the Colonie, in anything personall, as Trespass, Debt, Difference, &c., the party grieved shall have a writ of attaint out of this Court of the Colonie, putting in sufficient security, against each partie giving in such an untrue verdict, whereby ye parties shall be summoned by great distresses, and in case the thing in demand and the verdict, surmounts forty pounds, to the three able men of each Towne (Providence, Newport, Portsmouth, and Warwick) shall be added twelve of the same Towne where the Colonie Court of Tryall shall be, being worth three score pounds apiece, if such and so many are to be had, and in case these find they gave an untrue verdict, every one of the former inquest shall forfeit twenty pounds, ten whereof is the King's custome, and ten pounds shall go to the partie grieved, that sues for it; he shall be also not of credence, neither shall his solemn testimony be taken in any Court, 57 Conn. 583, 19 Atl. 334. Indeed, it untill the Colonie release him. But if, would seem that in this colony the claim eyther the demand or verdict be under forty was made of record as late as 1722 of a pounds, then shall the inquest be worth fifty right to a trial otherwise than by a jury, pounds a man, and every one of the petty that is to say, a trial by wager of law; inquest being found guilty, shall forfeit five for at the September term, 1722, of the pounds, with the like punishment as is be- court of trials at Newport, the defendant fore specified. See 23 Hen. VIII. 3; 37 appealed from a judgment of a justice Hen. VIII. 5. And in case he that sues court in an action of detinue, whereby the forth the writ of attaint makes it not good, plaintiff recovered judgment below for reevery party attainted may have his action turn of the property detained, or in lieu against him, and recover sufficient dam- thereof the defendant to pay plaintiff 40 mages." shillings. On the appeal in the court of trials the plaintiff below did not appear, but made default, and the court reversed the judgment below and awarded judgment But this statute applies only to "false verdicts," and its terms do not include the execution of a writ of inquiry of damages. So, too, it provides a jury of twenty-four in favor of the appealing defendant for for the trial of cases thereunder, as does the "Act against Perjury and Untrue Verdicts," of 23 Hen. VIII. 3, enacted in 1531, and referred to therein, and which it closely follows in many particulars. And as to "false verdicts" it was doubtless true here, as in England, as was said in 1736, by the court of King's bench in Barker v. Dixie, 2 Strange, 1051: "And new trials came in the room only of attaints as a more expeditious and easy remedy." Prior to 1671 the records of the "Generall Court of Tryalls" are to be found with the proceedings of the general assembly, and in 1730 it was succeeded by the superior court of judicature. The records between these dates are in our possession, and an examination of them shows that for some years it was the practice of the court to submit the question of damages in defaulted cases to a jury. The practice appears to have changed about the year 1710, for at the September term, 1709, in Burlington v. Whipple (Newport county), which was debt on a bond, upon defendant's default the damages were assessed by the court; and thereafter the latter practice gained, until, at the last term of the court before it was succeeded by the superior court of judicature and inferior courts of common pleas, created in 1729 (i. e., March term, 1730), of 254 defaulted cases at that term, the damages in each case were assessed by the court; nor does there appear at that term a single defaulted case in which the damages were assessed by a jury. So that this may safely be said to have been the constant and established practice during the latter years of the first court created in the colony. But the act of the general assembly specifically authorizing this method of procedure was not passed until 1767 (supra), and seems to have been rather a recognition of and authority for what may be termed the common law of the colony, as seems, also, to have been the fact in Connecticut. See Lennon v. Rawitzer, costs. It is of interest to note that in this Even in criminal cases the court for many years acted under a statute, which adjudged a respondent who did not appear, but made default, to be guilty, and then proceeded to impose sentence. The act creating the office of attorney general, in 1650 (1 R. I. Col. Rec. 225), is as follows: "That the Attorney Generall shall have full power to impleade any transgression of the lawe of this State in any Courte of this State; but especially to bringe all such |