(3) Sometimes at the trial the parties find that they agree on the facts, and the only question is one of law. In such case a verdict pro forma is taken, which is a species of admission by the parties, and is general, where the jury find for the plaintiff generally, but subject to the opinion of the court on a special case, 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 according ly. The judgments in these cases are called respectively, judgment on a general verdict subject to a special case, and judgment on a special verdict. See CASE STATED; POINT RESERVED ; VERDICT.
3. Besides these, a judgment may be based upon the admissions or confessions of one only of the parties.
(a) Such judgments when for defendant upon the admissions of the plaintiff are: (1) Judgment of nolle prosequt, where, after appearance and before judgment, the plaintiff says he "will not further prosecute his suit." (2) Judgment of retraccit 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 be tween these is that a retravit is a bar any future action for the same cause; while a nolle proseqwi is not, unless made after judgment; 7 Bingh. 716; 1 Wms. Saund 207, n.
(3) A plaintiff sometimes, when he finds he has misconceived his action, obtains leave from the court to discontinue, on which there is a judgment against him and he has to pay costs ; but he may commence a new action for the same cause.
(4) A stet processus is entered where it is agreed by leave of the court that all further proceedings shall be stayed: though in form a judgment for the defendant, it is general ly, like discontinuance, in point of fact for the benefit of the plaintiff, and entered on his application, as, for instance, when the defendant has become insolvent, it does not carry costs; Smith, Act. 162.
(b) Judgments for the plaintiff upon facts admitted by the defendant are : (1) Judgment by cognovit actionem, cog novit or confession, where, instead of enter ing a plea, the defendant chooses to acknowl edge the rightfulnesS of the plaintiff's ac tionr (2) Judgment by confession reUcta veri ficatione, 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 allegations.
Upon this judgment is entered against him without proceeding to trial.
Analogous to this is the judgment con fessed by warrant of attorney : this is an authority given by the debtor to an attor ney named by the creditor, empowering him, to confess judgment either by cognovit ac tionem, nil dicit, or non sum informatus. This differs from a cognovit in that an ac tion must be commenced before a cognovit can be given ; 3 Dowl. 278, per Parke, B.; but not before the execution of a warrant of attorney. Judgments by nil dicit and non sum informatus, though they are in fact founded upon a tacit acknowledgment on the part of the defendant that he has no defence to the plaintiff's action, yet as they are com monly reckoned among the judgments by de fault, will be explained under that head.
4. A judgment is rendered on the default of a party, on two grounds : 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 instance of the defaulting party, the court generally require him to pay costs.
(a) Such judgments against the defendant are: (1) Judgment by default is against the defendant when he has failed to appear aft er being served with the writ ; to plead, aft er 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 in cumbent on him. The practice of permitting judgment to be entered by default for want of a sufficient affidavit of defence, when the cause of action is a record, or is sworn to, has become practically universal. Under it courts usually refuse a judgment in cases in which motion on the affidavits raises a doubtful question. When such decisions can be reviewed, an order refusing judgment will rarely be reversed; Ensign v. Kindred, 163 Pa. 638, 30 Atl. 274.
(2) Judgment by non sum informatus is a species of judgment by default, where, in stead of entering a plea, the defendant's attorney says he is "not informed" of any answer to be given to the action.