itself, the State is liable, and the treasurer of the county where the Court is held pays them, c. 121, § 23, 24.

There are certain cases, in which the Court have power to refuse costs to a party, not equitably entitled to them. Thus, where a plaintiff becomes nonsuit or the defendant is defaulted, the Court has authority, when either party claims costs, to decide upon any agreement alleged to have been made by them, and to refuse costs on its being shown that they have been paid, or the party agreed not to claim. Coburn v. Whitely, 8 Met. 272. Where an action has been settled by the parties, the Court have no power, without the consent of both parties, to order "neither party' to be entered; the proper course, in such case, if the defendant refuse to have such entry made, is, for the plaintiff to become nonsuit, and object to the allowance of costs to the defendant, and such has been the practice since the above decision.

For the law respecting the liability of indorsers of writs to pay costs, see the chapter on Scire Facias.

At the July session of the whole Court of Common Pleas, in 1846, the following case was presented. At an early day in the session of a Court, a defendant moved for a continuance, the other party being ready for trial. A continuance was granted on the defendant's paying the plaintiff the costs of that term. It subsequently appeared that the case could not have been reached nor tried at that term. It was unanimously determined, for this reason, that so much of the order as related to the terms, must be reversed. When, therefore, cases are continued under such circumstances, the true meaning is, that the terms are to be complied with, if the case is reached. In most other cases, compliance with the terms imposed is considered a condition precedent.

CHAPTER XXV.

JUDGMENT AND EXECUTION.

It might be supposed, by one not conversant with the mysteries of legal proceedings, that when a cause had been fully tried before an upright Judge and an impartial jury, witnesses examined, the case argued by the chosen counsel of the parties, and when the jury had fully deliberated and returned their verdict, that judgment and execution would necessarily follow. There could not be a greater mistake. The verdict of a jury is but one step, though a most important one, towards the final result. A new trial may be moved for, for an infinite variety of reasons, such as the misconduct of the jury, or because of newly discovered evidence, or for erroneous rulings by the Judge, and there are few important cases in which the motion is not made; or a writ of error, or audita querela, may be sued out, or an arrest of judgment may be moved. Although the tendency of these measures is to delay, often for a very long period, the final determination of a cause, this feature of our system is regarded, by the wise and judicious, as eminently favorable to a correct administration of justice. The proceedings, amidst the hurry and excitement of a jury trial, when there is little opportunity or time to consult authorities, are afterwards calmly revised, and justice is ultimately administered. Perhaps the greatest improvement in our system would be the more speedy determination of law questions reserved and of motions for new trials.

As, however, judgment is finally entered in nearly all the cases upon a docket, it becomes necessary to consider the practice upon this subject of judgment and execution.

In cases that have been defaulted, and where a verdict has been rendered and no further action taken by the losing party, judgment is rendered as of the last day of the term as of course, unless otherwise expressly ordered by the Court, (Rev. Stat. c. 97, § 1); but where the terms are very long, as in Suffolk, it is usual, after waiting the time prescribed by the rules, for filing exceptions or making a motion for a new trial, to order judgment to be entered as of a particular day; in which case, the day must be noted by the clerk on his docket. Ib. It is never allowed until the last day, at the first term.

It is a common practice, at common law, (2 Tidd, 932,) to enter judgment nunc pro tunc, and is, in this Commonwealth, expressly authorized by statute, and the effect, as to bail and attachment, is to hold them from the time when the judgment is considered to have been made. Rev. Stat. c. 81, § 57, 58. Thus, if a party die after verdict, pending the time taken for argument or advisement, judgment is usually entered as of the term when he was living, in order that the delay arising from the act of the Court, may not turn to the prejudice of the party. Tidd, ut sup. The same course was taken in Perry v. Wilson, 7 M. R. 393; Patterson v. Buckminster, 14 M. R. 144; Currier v. Lowell, 16 Pick. 170. Regularly an execution cannot issue if either party be dead, (Hildreth v. Thompson, 16 M. R. 191); but where there are two or more plaintiffs, and one of them die, an execution may issue in the name of all, (Hamilton v. Lyman,,9

M. R. 14; Bowdoin v. Jordan, Ib. 160); and if it be issued during the life of the debtor, it may be levied upon his property after his death, unless the estate has been represented insolvent and a commission has actually issued. Grosvenor v. Gold, 9 M. R. 209; Rev. Stat. c. 97, § 15. When an appeal is made from the taxation of costs by the clerk, the judgment is to be considered as rendered on the day when the costs are finally taxed and allowed. Rev. Stat. c. 121, § 29. Whenever a motion for a new trial is made and it is overruled, the Court shall render judgment as of the term, when the verdict was rendered, whenever it shall be necessary or expedient to do so, to prevent loss by the death of either party or otherwise. Stat. 1842, c. 89.

It will be seen by the rules of the Court, that the prevailing party must file with the clerk, within a limited time, all the papers necessary to enable him to make up and enter the judgment, and to complete the record. If the writ specify the claim, as a promissory note, or as an account. annexed, the plaintiff usually takes execution, in case of default, for that amount, upon filing with the clerk the document declared on. If the declaration be general, he files a specification of his claim, with the clerk, who issues execution for that amount. These proceedings are matters of course, when it is not necessary for the Court or jury to intervene in the assessment of damages. Howe, 267.

Execution, according to Lord Coke, is the fruit, effect, and end of the law, and is the putting the sentence of the law in force. It must strictly follow the judgment rendered, and is, in fact, but an order from the Court to the sheriff, or other officer, to carry the judgment into effect. The various Courts are

expressly authorized to make all necessary changes in the forins of executions, to adopt them to the changes in the law, or to vary them for other sufficient reasons. Rev. Stat. c. 97, § 10, 11. Where judgment was recovered against a bankrupt, who had obtained his discharge, the Court ordered an execution to issue against the attached estate only, (Davenport v. Tilton, 10 Met. 320); and in the case of Harding v. Medway, in the same volume, p. 465, that execution should be stayed, until the happening of a single event. If there be two or more plaintiffs, and one of them die after judgment, the execution may be issued in the name of all, (Hamilton v. Lyman, 9 M. R. 14); but the Court may order it to be issued in the name of the servivors. Bowdoin v. Jordan, Ib. 160.

The party obtaining a final judgment in any civil action, may take out his execution at any time after twenty-four hours, after judgment rendered, and these hours are exclusive of the Lord's day. If an execution be sooner issued and levied, the levy is void. Penniman v. Cole, 8 Met. 496; Rev. Stat. c. 87, § 5. He may also take it out within one year, but not afterwards. If he take it out within such time, and it be returned, at any time within a year after the return day of that which preceded it, he may have an alias execution, except that if the debtor have been surrendered by his bail, the creditor may sue out an execution after the surrender, though more than a year has elapsed after the return day of the next preceding execution. Rev. Stat. c. 97, § 6, 7. An execution may be issued after the expiration of a year, in a real action, when the tenant neglects to pay the sum fixed for the relinquishment of the premises, in the case where he has made a claim for improvements. Rev.