AFTER VERDICT , the general form of judg ment for plaintiff in actions on contracts sounding in damages, and in actions found ed on torts unaccompanied with violence, is this: "Therefore it is considered that the said A B do recover against the said C D his damages aforesaid, and also — for his said costs and charges, by the court now here adjudged of increase to the said A B, with his assent; which said damages, costs, and charges in the whole amount to —. And the said C D in mercy, etc." In debt for a sum certain, the general form is " that the said A B do recover against the said C D his said debt, and also — for his damages which he has sustained, as well on occasion of detaining the said debt as for his costs and charges by him about his suit In this behalf expended, by the court now here adjudged to the said A B, and with his assent. And the said C D in mercy, etc." In actions founded on torts accoMpanied with violence, the form of judgments for plaintiff Is, "— that the said A B do re cover against the said C D his damages aforesaid, and also — for his said costs and charges by the court now here adjudged of increase to the said A B, and with his consent ; which said damages, costs, and charges in the whole amount to —. And let the said C D be taken, etc." Final judgment for the defendant is in these words: "Therefore it is considered that the said A take nothing by his writ but that he be in mercy, etc. (or that he and his pledges to prosecute be in mercy, etc.), and that the said C D do go thereof without day, etc. And it is further consid ered —." Then follows the award of costs and of execution therefor. See Tidd, Pr. Forms 189.
This is the general form of judgment for defendant, whether it arise upon interlocu tOry proceedings or upon verdict, and what ever be the form of action. This is some
times called judgment of nil capiat per breve or per billam; Steph. Pl., Andr. ed. § .97.
The words "and the said — in mercy, etc., or, as expressed in 'Latin, quod sit in misericoribla pro 'also clamore suo, were formerly an operative part of the judgment, it being an invariable rule of the common law that the party who lost his cause was punished by amercement for having unjust ly asserted or resisted the claim. And on this account pledges of prosecution were re quired of the plaintiff before the return of the original, who were real and responsible persons and liable for these amercements. But afterwards the amercements ceased to be exacted,—perhaps because the payment of costs took their place,—and, this portion of the judgment becoming mere matter of form, the pledges returned were the fictitious names John Doe and Richard Roe. Bacon, Abr. Fines, etc. (C 1); 1 Ld. Raym. 273.
The words "and let the said — be taken," in Latin, capiatur pro fine, which occur above in the form of judgment in ac tions on torts accompanied with violence, were operative at common law, be cause formerly a defendant adjudged to have committed a civil injury with actual violence was obliged to pay a fine to the king for the breach of the peace implied in the act, and was liable to be arrested and Imprisoned till the fine was paid. This was abolished by stat. 5 W. & M. c. 12 ; but the form was still retained in entering judg ment againit defendant in such actions. See Gould, P1. § 38, 82; Bacon, Abr. Fines, etc. (C 1) ; 1 Ld. Raym. 273; Style 346.
These are called, respectively, judgments of misericordia and of capiatur.