His objection was the want of an averment of performance of what he insisted to be a condition precedent. . !!

LORD MANSFIELD [C. J.] now delivered the resolution of the court. This is a motion made by the defendant in arrest of a judgment by default: so that it comes before the court, exactly as if it had been upon demurrer; and is not like the cases of objections to judgment after verdict.

The plaintiff has not averred performance of what was to be done on his part; now shewn that he was ready to perform it.

Therefore we are all of opinion, that it can not be made good as laid in the declaration: and the true distinction as to supplying such defects, is whether the objection be made after a verdict, or not. Therefore the judgment must be arrested.

Whereupon Mr. Dunning moved to amend, upon payment of costs; by inserting such an averment, (as he said) the fact really was. Which was opposed by Mr. Burland; as being too late, after judgment was arrested; and as having never been done.

LORD MANSFIELD As it is doubtful whether this can be done or not; and as it is certain that the difference between paying costs to amend, and beginning afresh, is very trifling in this case, it is better to let the rule be as it was pronounced: and accordingly — Let the judgment be arrested.

Per Cur. Judgment Arrested.?

WISCONSIN STATUTES (1943)

SEC. 269.47. Defense where service by publication. When service of the summons shall have been made by publication, if the summons shall not have been personally served on a defendant nor received by such defendant through the post office, he or his representative shall, on application and good cause shown, at any time before final judgment, be allowed to defend the action; and, except in an action for divorce or anulment of the marriage contract, the defendant or his representative shall in like manner, upon good cause shown and such terms as shall be just, be allowed to defend after final judgment at any time within one year after actual notice thereof and within three years after its rendition. If the defense be successful and the judgment or any part thereof shall have been collected or otherwise. enforced such restitution may thereupon be compelled as the court

1 The detailed statement of facts as contained in the argument of counsel is omitted.

2 Similarly, a defendant who has defaulted can take advantage of defects in the declaration after judgment by writ of error. See Hollis v. Richardson, 13 Gray 392 (Mass. 1859).

shall direct; but the title to property, sold under such judgment to a purchaser in good faith, shall not thereby be affected.1

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 55. DEFAULT.

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.

(b) Judgment. Judgment by default may be entered as follows:

(1) By the Clerk. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if he has been defaulted for failure to appear and if he is not an infant or incompetent person.

(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 3 days. prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States. (c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60 (b).

(d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded

1 There are similar statutes in most states.

a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54 (c).1

(e) Judgment Against the United States. No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.

RULE 60. RELIEF FROM JUDGMENT OR ORDER.2

(b) Mistake; Inadvertence; Surprise; Excusable Neglect. On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one year, as provided in Section 57 of the Judicial Code, U. S. C., Title 28, § 118, a judgment obtained against a defendant not actually personally notified.3

1 Rule 54(c) of the Federal Rules of Civil Procedure provides in part as follows: "A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment." For the remainder of Rule 54 (c), see p. 477, n. 1, infra.

2 For Rule 60(a), see p. 477, n. 1, infra.

3 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 69-70, adds as grounds for relief (1) newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial, and (2) fraud (intrinsic or extrinsic), misrepresentation or misconduct of the adverse party; the time within which to move for relief is proposed to be extended to one year; and the proposed rule shall not apply to proceedings "to set aside a judgment for fraud upon the court." The proposed amendment further provides: "Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining relief from judgments shall be by motion as prescribed in these rules or by an independent action." As to the reasons for these proposed changes, see id. 70-74.

As to writs of error coram nobis and coram vobis which could be brought after the expiration of the term even at common law, see Stephen, Pleading (Williston ed. 1895) *129-*131; Note, 37 Harv. L. Rev. 744 (1924); Powell v. Gott, 13 Mo. 458 (1850). As to proceedings by audita querela, which also could be brought after the expiration of the term, see 3 Blackstone, Commentaries, *405; Stone v. Seaver, 5 Vt. 549 (1833). Except in these and other exceptional cases, relief against a judgment was impossible at common law after the term of court had expired. See United States v. Mayer, 235 U. S. 55 (1914); Note, 28 Harv. L. Rev. 412 (1915). Cf. p. 479, infra. As to bills of review, see Ch. XIII, § 7, infra.

SECTION 8

JUDGMENT

LYNCH v. FREELAND.

COURT OF APPEALS, KENTUCKY. 1803.

Sneed 269.

It is assigned as an error in this suit that "the writ and declaration are in case, and the verdict and judgment are in debt."

The court finds that the writ is trespass on the case in the usual form; and the declaration also seems to be in case, although it is not altogether in the usual form, and, perhaps, is deficient in substance. It is at least certain that it is not a declaration in debt. But the verdict and judgment could only have been authorized by a declaration in debt. In particular, the judgment is for a certain sum and interest thereon from the time it became due until paid, whereas, in an action on the case, the verdict and judgment could only have been for an aggregate sum in damages, including interest, until the time they were rendered, and not for any interest thereafter. Therefore, it is considered by the court that the judgment aforesaid be reversed and set aside, the cause be remanded to the circuit court for new proceedings to be had, to commence by amending the declaration, and the plaintiff [in error] recover of the defendant [in error] his costs in this behalf expended, which is ordered to be certified to the circuit court.1

PICKWOOD v. WRIGHT.

COURT OF COMMON PLEAS. 1791.

1 Henry Blackstone 642.2

In this action of assumpsit the plaintiff took a verdict for 611 l. which was really the sum due to him, and entered up judgment for that sum beside costs, but the damages laid in the declaration were but 600 1. A writ of error was brought on this judgment, and Kerby, Serjt. obtained a rule to show cause why a remittitur of the 11 l. should not be entered. Adair and Le Blanc, Serjts. argued against the rule, saying, that after judgment signed and error brought, it was too late to enter a remittitur for the sum which caused the error;

1 As to the necessity of conformity of the judgment to the pleadings, see also Reynolds v. Stockton, 140 U. S. 254, 265-266 (1891).

2 Reporter's footnotes omitted.

and they cited the case of Sandiford v. Bean, B. R. Hil. 13 Geo. 3, as an authority in point. Kerby, on the other side, insisted, that as long as the record remained in court it might be amended.

THE COURT thought it was reasonable to allow the amendment, and therefore made the rule absolute upon payment of the costs of the writ of error.1

COSTS.2

Ar common law the successful party to an action is ordinarily entitled to costs against the other as a matter of right. If the plaintiff succeeds, he recovers a judgment for the amount of the jury's verdict plus costs; if the defendant succeeds, he recovers a judgment against the plaintiff for costs.3

In England, costs include reasonable counsel fees to the successful party. In some cases of protracted litigation costs in the English courts are very large indeed, partly for this reason.* In the United States, however, costs are ordinarily restricted to court expenses, witnesses' fees, printing on appeal, and the like. Counsel fees are allowed only by statute, and then rarely and in few special cases.5 What may be included in costs and how costs are to be taxed is usually provided for in detail by statutes in the various states.

Rule 54 (d) of the Federal Rules of Civil Procedure (1938) provides as follows: "Except. when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court

1 Suppose that the ad damnum of the declaration is $2000, that the jury brings in a verdict for the plaintiff for $1500, and that the court enters judgment for $1200? See Brown v. McLeish, 71 Ia. 381, 383 (1887). Compare Rule 54(c) of the Federal Rules of Civil Procedure, which provides in part as follows: "Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." Cf. Ch. XIX, § 1, infra.

Rule 60(a) of the Federal Rules provides: "Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders."

2 The student is advised to read Goodhart, "Costs", 38 Yale L. J. 849 (1929).

3 See Note, 41 Harv. L. Rev. 654 (1928). As to costs in equity, see Ch. XIII, §6(3), §7, infra.

4 For example, in Graigola Merthyr Co. v. Swansea Corp., 45 T. L. R. 219 (H. L. 1929), the costs payable to the defendant by the unsuccessful plaintiff amounted to over $350,000.

5 See a brief comparative discussion of the English and American systems in Note, 10 Harv. L. Rev. 242 (1896).

6 See, e.g., N. Y. C. P. A. § § 1470-1538.