Damages for nothing else: For if the Deed did pass the Term, then they find for the Plaintiff, and assess Damages; and if the Term did not pass, they find the Defendant Not guilty, &c. the Damages cannot therefore be for both; for, if they had found any for the Matter demurred upon, it must have been with a si Contingat; here 'tis not so. And tho' the Special Fact found had been against the Plaintiff, it might have been for him upon the Demurrer, and consequently the conditional Finding of the Damages here, can never be as to that.
Then it was further said, That this might be supplied by an Inquest of Office, in case it had not been released; and there was cited Cheyney's Case, Mich. 10 Jac. 1. 10 Rep. 118, 119. Writ de Valore maritagii, Issue on the Tenure, and Verdict for the Plaintiff, and no Value found of the Marriage: And held ill, because they say, an Attaint lies upon it, that being the Point of the Writ: And there the Rule is taken generally, that where an Attaint lies upon the Finding, the Omission of finding such Matter cannot be supplied by a new Writ of Inquiry; because such Writ of Inquiry would prevent the Party of the Benefit of his Attaint.
Then the Book says farther, That the Rule is, that the Court ex Officio ought to inquire of such Thing upon which no Attaint lies; and there the Omission of its being found in the Verdict, may be supplied by a Writ of Inquiry of Damages; as in the Case of a Quare Impedit, (Poyner's Case, Dyer 135.) Issue found for the Plaintiff; but the Jury per Negligence were not charged to inquire of the four Points, Plenarty, ex cujus Præsentatione, si Tempus Semestre, and the yearly Value of the Church; there a Writ of Inquiry lies de novo, because upon them no Attaint lies; as is the 11 H. 4. 80. because as to them 'tis only an Inquest of Office: And the Book says further, That all the Cases to the contrary of that Rule have passed sub silentio, without due Advisement, and were against the Rule of Law. So in the Case of Detinue, the Omission of the Value in the finding is fatal, because an Attaint lies upon a false Verdict in that Particular: So that by the Case cited, it may be only an Inquest of Office as to Part, which is the present Case. In that Case of a Quare Impedit in [202] Dyer is cited a Precedent for it, in the Old Book of Entries 110. which is a false Folio, for 'tis in 93. b. and there is the very Entry of the Writ, setting forth a Recuperavit præsentation' virtute Brevis de Nisi prius, Et quia nescitur utrum Ecclesia plena, &c. And as the Case is in Dyer, the Plaintiff did there (as the Plaintiff doth here) release his Damages, and had a Writ to the Bishop. Now in Heydon's Case, 11 Rep. 6. 'tis held that no Attaint lies upon an Inquest of Office; and therefore 'tis, that if in a Trespass against divers Defendants, some plead to Issue, and one suffers Judgment to go by Default, The Damages found on the Issue shall be chargeable upon all, and the Inquiry of Damages on the Judgment by Default shall stay; because no Attaint lies upon that. 'Tis there also said, that Attaint lies only on a Verdict on the Mise of the Parties: In Trespass, three Issues, Non culp' to one Part, Prescription for a Common to another Part, and the Cattle raptim momorderunt in going to take Common to another, &c. The Jury find one for the Plaintiff, and another for the Defendant, and inquire not of the third Issue at all; the Plaintiff relinquishing his Damages on the third Issue, prays Judgment on the Verdict for the first; and held that this prevented all Error. Mich. 13 Car. 1. B. R. Brown and Stephens, adjudged, 1 Roll's Abridg. 786. Then as to the Case of Fastuman and Row, 11 Car. 1. B. R. in 2 Roll's Abridg. 722. Trespass for an Assault, Battery, and taking Corn; Special Plea to the Battery, and Demurrer thereupon, and Non culp' to the Taking the Corn; the Jury find no Damages upon the Demurrer; said there, That when Judgment is for the Plaintiff on the Demurrer, the Damages for it cannot be assessed on a Writ of Inquiry, but a Venire Facias de novo for the whole: 'Twas now argued, that that was expressly against the Rule in Cheyney's Case, and that in the Case in Rolls; 'tis put with the Addition of a Dubitatur.
If Release of Damages cures Error.—But if that be Law, there needs no Writ of Inquiry in this Case, because the Damages, as to that Part, are released; and for this, there is the express Case of Bentham, 11 Rep. 56. In Annuity, the Parties descended to Issue; found for the Plaintiff as to the Arrearages, but no Damages and Costs; 'twas held an imperfect Verdict, and that it could not be supplied by Writ of Inquiry of Damages; yet the Plaintiff releasing the Damages
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