The formality of calling the plaintiff when he is to suffer a nonsuit is obsolete in most of the states.
In England, when the plaintiff neglects to carry down the record to the assizes for trial, the defend ant is empowered, by stet. Geo. II. c. 17, to move for judgment as in case of nonsuit, which the court may either grant, or may, upon just and reasonable terms, allow the plaintiff further time to try the issue.
S. Interlocutory judgments are such as are given in the middle of a cause upon some plea, proceed ing, or default which is only intermediate, and does not finally determine or complete the suit. 3 Blackstone, Comm. 396.. Such is a judgment for the plaintiff upon a plea in abatement, which merely daoides that the cause must proceed and the de fendant put in a better plea. But, in the ordinary sense, interlocutory judgments are those incom plete judgments whereby the right of the plaintiff is indeed established, but the quantum of damages sustained by him is not ascertained. This can only be the case where the plaintiff recovers; for judg ment for the defendant is always complete as well as final. The interlocutory judgments of most com mon occurrence are where a demurrer has been de termined for the plaintiff, or the defendant has made default, or has by cognovit actionem acknow ledged the plaintiff's demand to he just. After in terlocutory judgment in such case, the plaintiff must ordinarily take out a writ of inquiry, which is addressed to the sheriff, commanding him to summon a jury and assess the damages, and upon the return of the writ of inquiry final judgment may be entered for the amount ascertained by the jury. It is not always necessary to have a writ of inquiry upon interlocutory judgment; for it is. said that "this is a mere inquest of office to inform the oonscianee of the court, who, if they please, may themselves assess the damages," 3 Wils. 62, per Wilmot, O. J. ; and accordingly, if the damages are matter of mere computation, as, for instance, interest upon a bill of exchange or promissory note, it is usual for the court to refer it to the master or prothonotary, to ascertain what is due for princi pal, interest, and costs, whose report supersedes the necessity of a writ of inquiry. 4 Term, 275; 1 H. Blaokst. 541; 4 Price, 134. But in actions where a speoifie thing is sued for, as in notions of debt for a sum certain, the judgment upon demurrer, default, or oonfession is not interlocutory, but is absolutely complete and final in the first instance.
9. Final judgments are suoh as at once put an end to the action by determining the right and fix ing the amount in dispute. Such are a judgment for defendant at any stage of the suit, a judgment for plaintiff after verdict, a judgment for a specifio amount confessed upon warrant of attorney, and a judgment signed upon the return of a writ of in quiry, or upon the assessment of damages by the master or prothonotary. Judgment for plaintiff is final also in an action brought for a specific sum, as debt for a sum certain, although entered upon demurrer or default, because here, the amount being ascertained at the outset, the only question at issue is that respecting the right, and when that is de termined nothing remains to be done.
When an issue in fact,. or an issue in law arising on a peremptory plea, is determined for the plain tiff, the judgment is "that the plaintiff do recover, etc.," which is called a judgment quid recuperet. Stephan, Plead. 126; Comyn, Dig. Abatement (I 14, I 15); 2 Archbold, Pract. 3. When the issue in law arises on a dilatory plea and is determined for the plaintiff, the judgment is only that the de fendant "do answer over," called a judgment of respondcat ouster. In an action of account, judg ment for tho plaintiff is that the defendant "do account," quad computet. Of these, the last two, quad computes and quod respondeat ouster, are in terlocutory only; the first, quad recuperet, is either final or interlocutory according as the quantum of damages is or is not ascertained at the rendition of the judgment.
Judgment in error is either in affirmance of the former judgment ; in recall of it for error in fact; in reversal of it for error in law • that the plaintiff be barred of his writ of error, where a plea of re lease of errors or of the statute of limitations is found for the defendant; or that there be a venire facial de novo, which is an award of a new trial. Smith, Actions, 196. A venire facias de novo will always be awarded when the plaintiff's declaration contains a good cause of action, and judgment in his favor is reversed by the court of error. 24 Penn. St. 470. In general, however, when judg ment is reversed, the oourt of error not merely overturns the decision of the court below, but will give such a judgment as the court below ought to have given. Smith, Actions, 196.