3. Judgments upon facts admitted by the par ties are as follows. Judgment upon a demurrer against the party demurring concludes him, be cause by demurring a party admits the facts alleged in the pleadings of his adversary, and relies on their insufficiency in law. It sometimes happens that though the adverse parties are agreed as to the facts, and, only differ as to the law arising out of them, still these facts do not so clearly appear on the pleadings as to enable them to obtain the opinion of the court by way of demurrer; for on demurrer the court can look at nothing what ever except the pleadings. In such circumstances the statute 3 & 4 Will. IV. e. 42, 25, which has been imitated in most of the states, allows them after issue joined, and on obtaining the consent of a single judge, to state the facts in a special case for the opinion of the court, and agree that a judgment shall be entered for the plaintiff or de fendant by confession or nolle proeequi after the decision of the case; and judgment is entered accordingly. Sometimes at the trial the parties find that they agree on the facts, and the only question is one of law. In such ease a ver dict pro forma is taken, whioh is a species of admission by the parties, and is general, where the jury find for the plaintiff generally but subjeot to the opinion of the court on a special mule, or special, where they state the facts as they find them, con cluding that the opinion of the court shall decide in whose favor the verdict shall be, and that they assess the damages accordingly. The judgments in these eases are called, respeotively, judgment on a case stated, judgment on a general -verdict sub ject to a special case, and judgment on a special verdict.
4. Besides these, a judgment may be based upon the admissions or confessions of one only of the parties. Such judgments when for defendant upon the admissions of the plaintiff are : Judgment of nolle prosequi, where, after appearance and before judgment, the plaintiff says he "will not further prosecute his suit." Judgment of retraxit is one where, after appearance and before judgment, the plaintiff enters upon the record that he "withdraws his suit," whereupon judgment is rendered against him. The difference between these is that a re tra.eit is a bar to any future action for the same cause; while a nolle proeequi is not, unless made after judgment. Bowden vs. Home, 7 Bingh. 716; 1 Wms. Suund. 207, n. A plaintiff sometimes, when he finds he has misconosived his action, obtsias leave from the court to discontinue, on which there is a judgment against him and be has to pay costs; but he may commence a new action for the same cause. A stet proceseue is entered where it is agreed by leave of the court that all further pro ceedings shall be stayed: though in form a judg ment for the defendant, it is generally, like dis continuance, in point of fact for the benefit of the plaintiff, and entered on his spplication, as, for in stance, when the defendant has become insolvent, it does not carry costs. Smith, Actions, 162, 163.
5. Judgments for the plaintiff upon facts ad mitted by the defendant are judgment by eogno pit actionem, cognovit or confession, where, instead of entering a plea, the defendant chooses to ac knowledge the rightfulness of the plaintiff's ac tion; or by confession relicta vertficatione, where, after pleading and before trial, he both confesses the plaintiff's cause of action to be just and true and withdraws, or abandons, his plea or other alle gations. Upon this, judgment is entered against
him without proceeding to trial.
Analogous to this is the judgment confessed by warrant of attorney : this is an authority given by the debtor to an attorney named by the creditor, empowering him to confess judgment either by cognovit octionem, nil dioit, or non sum informable, This differs from a eognovit in that an action must be commenced before a cognovit can be given, 3 Howl. 278, per Parke, B., but not before the execu tion of a warrant of attorney. Judgments by nil dicit and non sum informable, though they are in fact founded upon a tacit aoknowledgment on the part of the defendant that he has no defence to the plaintiff's action, yet as they are commonly reckoned among the judgments by defaults, they will be explained under that head.
6. A judgment is rendered on the default of a party, on two gronnds: it is considered that the failure of the party to proceed is an admission that he, if plaintiff, has no just cause of action, or, if defendant, has no good defence; and it is intended• as a penalty for his neglect; for which reason, when such judgment is set aside or opened at the in stance of the defaulting party, the court generally require him to pay costs. Judgment by default is against the defendant when he has failed to ap pear after being served with the writ; to plead, after being ruled so to do, or, in Pennsylvania and some other states, to file an affidavit of defence within the prescribed time, or, generally, to take any step in the cause incumbent on him. Judg ment by non COOL informable is a species of judg ment by default, where, instead of entering a plea, the defendant's attorney says he is "not informed" of any answer to be given to the action. Judg ment by nil die it is rendered against the defend ant where, after being ruled to plead, he neglecta to do so within the time specified.
7. Judgment of non pros. (from non proeequitur) is one given against the plaintiff for a neglect to take any of those steps which it is incumbent on him to take in due time. Judgment of new suit (from non sequitur, or ne suit pan) is where the plaintiff, after giving in his evidence, finds that it will not sustain his case, and therefore voluntarily makes default by absenting himself when he is called on to hear the verdict. The court gives judgment against him for this default; hut the proceeding is really for his benefit, because after a non-suit he can institute another action for the same cause, which is not the case—except in eject meat, in some states—after a verdict and judgment against him. It follows that at common law the plaintiff cannot he nonsuited against his will; for a party cannot he compelled to make default. But in Pennsylvania, by statute, the plaintiff may be nonsuited compulsorily. This may be dons in two cases: 1, under the act of 11th March, 1836, when the defendant has offered no evidence, and the plaintiff's evidence is not sufficient in law to main tain his action ; 2, under the act of 14th April, 1846, confined to Philadelphia, when the cause is reached and' the plaintiff or his counsel does not appear, or, if he appears, does not proceed to trial, and does not assign and prove a sufficient legal cause for continuance.