lory v. Jennings, in the King's Bench, Mich. 4, Geo. II, Fitzgibbon, 162 (1731).

So in Foster v. Jackson, Trin. 13 Jac. Hob. 52 (1616), it is said of a verdict: "First lay this for a Ground, that if the Jury find any Thing, that is meerly out of the Issue, that such a Verdict, for so much is utterly void and of no Force, though it conclude in general, for or against the Plaintiff or the Defendant, whereof the Reason is plain, which is, that the Jurors are Tryers of Matter of Fact put in Issue between the Parties, and their Oath, which contains their commission is, that they shall truly try the Issue between Party and Party. So that whatsoever they do try besides the Issue is per non juratos, as a Cause judged by the Court, that hath no Jurisdiction of the Cause coram non judice, and utterly void, for a Verdict must not be to the Action, that might have been pleaded, but to the Issue, which is pleaded, and in their Charge. * * And so upon

the Matter, if that extravagant Part of the Verdict be false, it is no Perjury, neither doth any Attaint lie upon it, for there is no Party grieved nor any Thing to be restored, neither can it be used as in evidence in any other Tryal, because there is no Redress if it be False. * * For Jurors are bound to their Issues, but Judges have Power over the whole Matter, and that hath also his Bounds, as to the Matter within the Record, not at large."

In Sir Francis Goodwin v. Welsh & Over, Pasch, 7 Jac. Yelv. 152 (1610), the plaintiff recovered damages in trespass de bonis asportatis against two defendants by default, and it was held: "And by all the Justices, they themselves as judges, if they would, might in these cases assess damages without issuing any writ, for it issues only quia nescitur quæ damna; but if they will trouble themselves with the assessment of damages, they may. But it is otherwise in the case of non cul. pleaded, for there the trespass is denied which must be tried by the jury and there the property and the value also ought to be proved." And in a note to this case by the late Theron Metcalf, in the 1st American Edition of Yelverton's Reports, published in 1820, it is stated: "In Rhode Island the court on default and demurrer assess damages in all actions, whether of tort or of contract." See, also, to the same effect, 1 Brownlow & Goldsborough, 214, and Cro. Jac. 220.

Under the protectorate of Cromwell, in 1651, was decided the case of Davis v. Lord Foliot (Banc. Sup.) Style, 310. Davis sued Lord Foliot for an assault, and on a writ of inquiry £200 damages were awarded by the jury. "The Plaintiff moved the Court for a new writ because by reason of the willfulness of the Jury the damages were found too small." "Rolle, Chief Justice, answered, though we grant not a new writ, yet we can increase the damages upon view of the wound, and here appears to have been a foul

Battery by the dagger produced in the Court and by the party himself that is wounded, and it is not fit that a wilful Jury should prejudice the party, therefore either consent to a new writ or else bring your witnesses on both sides and we will hear the motion again." And later, "Rolle, Chief Justice, said -3 things are considerable. 1. Whether the court can increase the damages; 2ly, Whether the wound be apparent; and 3ly, Whether the damages given be too small. The Court upon view of the party and examination of Chirurgeons and Witnesses on both sides upon Oath, did conclude that they might increase the damages and that the wound was apparent and that the damages were too small, and therefore they increased them to £400 and said they would not increase them more because they could not inquire into all the circumstances of the fact as the jury might, but they thought fitting to increase them in some proportion because the offence was great and such outragious Acts are not to be slightly punished." And see Dames v. Rock, Mich. 1 Car. Bendloe, 158 (1625). And Wolf v. Meggs, Cro. Eliz. 544 (1597); Hooper v. Pope, 2 Latch. 223 (1626); and Mallet and Ferrer's Case, Hil. 30 Eliz., 1 Leon. 139 (1588); and Tripcony's Case, Mich. 1 Philip & Mary, 1 Dyer, 105a (1554); More's Case (1674) Freeman, 173; Burton v. Baynes, Mich. 7, Geo. II, Barnes, 153 (1733); Austin v. Hilliers et al., Pasch. 17, Car. II, Hard. 408 (1666).

In the reign of William III (1695) was decided, in the King's Bench, Sir James Harbert's Case, Skinner, 595. Here the plaintiff in replevin became nonsuit after joinder in trial and evidence to a jury, and the jury were discharged without assessing the defendant's damages. And at a later day, on a motion for a writ of inquiry for that purpose, it was said by Holt, Chief Justice: "The Jury here are discharged from giving their Verdict by the Nonsuit; and therefore, if they had given a Verdict for the Damages this had been but as an Inquest of Office upon which no Attaint would lie if the Damages had been excessive.

* • But where the

Jury gives a Verdict and does not give Damages there such a Defect shall not be supplied; for if the Jury had given Damages this was as Part of their Verdict upon which an Attaint lay if they are excessive, and therefore if this shall be supplied by a Writ of Enquiry which is but an Inquest of Office, if the Damages are excessive the Party shall be oppressed without the Benefit of an Attaint." And see 1 Salk. 205; 1 Ld. Raym. 59; 12 Mod. Rep. Case, 150. In Herbert v. Waters (Carth. 362), decided in the Court of King's Bench in 1695, the rule is thus stated as to a writ of inquiry of damages to an avowant upon a nonsuit in replevin: "Where the Matter omitted to be inquired by the principal Jury is such as goes to the very Point of the Issue, and upon which if 'tis found by the Jury, an Attaint will lie against

them by the Party, if they have given a false Verdict; there such Matter cannot be supplied by a Writ of Inquiry, because thereby the Plaintiff may lose his Action of Attaint, which will not lie upon an Inquest of Office. But where the Matter omitted to be inquired by the principal Jury doth not go to the Point in Issue or necessary Consequence thereof, but are Things meerly collateral, as Damages are in this Case, and the Four usual Inquiries on a Quare Impedit, such may be supplied by a subsequent Writ of Inquiry, without any Damage to the Party; because if the same had been inquired into by the principal Jury, it would have been (as to those Particulars) no more than an Inquest of Office, upon which an Attaint will not lie." Brampton's Case, Mich. 13 Jac. 1 Rolle Rep. 272 (1616); Cheyney's Case, 10 Coke Rep. 118; Sir John Heydon's Case, Trin. Jac. 11 Coke Rep. 5 (1613).

During the same reign (Hil. Term, 8, 9, Will. III; 1696) was also decided Cook v. Beal, 1 Ld. Raym. 176. This was trespass for an assault, and not guilty pleaded, and verdict for plaintiff, who later moved for an increase of the damages upon affidavit that he had partially lost the sight of his eye by the assault; and therefore it was "resolved that the court may increase the damages if the wound be apparent though it be not a maim. * And Powell, Justice, said that Holt, Chief Justice, was of that opinion. * * And he (Powell, J.,) said that the court might increase the damages upon a writ of enquiry because that was but a bare inquest of office." And see 3 Salk. 115. And in the following cases the assessment of damages by a jury on a writ of inquiry was set aside by the Court of King's Bench:

*

*

Woodford v. Eades, 1 Str. 425 (1721), because damages were too small; and for the same cause in Hall v. Stone, 1 Str. 515 (1722); and in Markham v. Middleton, 2 Str. 1259 (1746); Parr v. Purbeck, 8 Mod. Rep. 196 (1724).

In Beardmore v. Carrington et al., 2 Wils. 244 (1764), it was said by the court, in considering the question of damages awarded in an action of trespass and false imprisonment after joinder on the general issue and trial to a jury: "There is also a difference between a principal verdict of a jury and a writ | of inquiry of damages, the latter being only an inquest of office to inform the conscience of the court, and which they might have assessed themselves without any inquest at all."

And in Hewitt v. Mantel, 2 Wils. 372 (1768), it was said, by Wilmot, Chief Justice: "The taking of the inquisition and entering final judgment were only the conclusion and necessary consequence of the interlocutory judgment, for the court themselves, if they had so pleased, might upon the interlocutory judgment have assessed the damages, and thereupon given final judgment before Bib

bins's became bankrupts, and the inquisition is only a matter of course taken to inform the conscience of the court."

Again, in Bruce v. Rawlins, 3 Wils. 61 (1770), the plaintiff recovered damages in trespass by default for breaking and entering plaintiff's house and searching his effects. The court said, in considering the damages assessed by the jury on the writ of inquiry: "Wilmot, Chief Justice. This is an inquest of office to inform the conscience of the court, who, if they please, may themselves assess the damages." And see Coleman v. Mawby et al., 2 Str. 854 (1730); and also Creswick v. Saunders, 34 Car. II, Shower, 200, Case 199 (1682).

In Rhode Island the act of the General Assembly, passed in 1647, creating the "Generall Court of Tryalls," made provision for the use of writs of inquiry of damages in defaulted cases, and also provided for the proceeding by writ of attaint for a false verdict, as follows (1 R. I. Col. Rec. p. 196): "But in case after a declaration is filed in expectation of an answer, or to make his defence, and he doth not, then the plaintiff taketh him by default, which is called confessing the action, and then the Recorder's office shall be, to enter and record a Nihil dicit (id est), he saith nothing thereon, and so shall he send out a writ of enquiry of dammages unto the Towne where the defendant lives. And the head officer of the Towne at the next Towne Court, shall enquire of damages, and by a writ of destringes to the Sargant, shall cause the defendant for that purpose to come to the Court, and in case he appeare not, he shall forfeit the distraint, and the head officer of the Towne may distraine again and again." This provision was changed in 1650 (1 R. I. Col. Rec. 224) by a provision "that in case a Nihil dicit be taken in any Courte, the Jury of that Courte shall make inquirie," apparently extending to all courts the provisions of the act of 1648, relative to the "General Court of Tryalls" only, and which specified (page 211) that in case of a nihil dicit in that court "that then the Jury Empanelled for the said Court shall enquire of Damages" etc. And also (page 200): "And be it further enacted by the authority of this present Assemblie, that if any false verdict be given in any action, suit or demand, either in this or in any other Court of the Colonie, in anything personall as Trespass, Debt, Difference, &c., the party grieved shall have a writ of attaint out of this Court of the Colonie, putting in sufficient security, against each partie giving in such an untrue verdict, whereby ye parties shall be summoned by great distresses, and in case the thing in demand and the verdict, surmounts forty pounds, to the three able men of each Towne (Providence, Newport, Portsmouth, and Warwick) shall be added twelve of the same Towne where the Colonie Court of Tryall shall be, being worth three score pounds apiece, if such and so many are to

be had, and in case these find they gave an untrue verdict, every one of the former inquest shall forfeit twenty pounds, ten whereof is the King's custome, and ten pounds shall go to the partie grieved, that sues for it; he shall be also not of credence, neither shall his solemn testimony be taken in any Court, untill the Colonie release him. But if, eyther the demand or verdict be under forty pounds, then shall the inquest be worth fifty pounds a man, and every one of the petty inquest being found guilty, shall forfeit five pounds, with the like punishment as is before specified. See 23 Hen. VIII, 3; 37 Hen. VIII, 5. And in case he that sues forth the writ of attaint makes it not good, every party attainted may have his action against him, and recover sufficient dammages."

So,

But this statute applies only to "false verdicts," and its terms do not include the execution of a writ of inquiry of damages. too, it provides a jury of 24 for the trial of cases thereunder, as does the "Act against Perjury and Untrue Verdicts," of 23 Hen. VIII, 3, enacted in 1531, and referred to therein, and which it closely follows in many particulars. And as to "false verdicts" it was doubtless true here, as in England, as was said in 1736, by the Court of King's Bench in Barker v. Dixie (2 Str. 1051): "And new trials came in the room only of attaints as a more expeditious and easy remedy."

Prior to 1671 the records of the "Generall Court of Tryalls" are to be found with the proceedings of the General Assembly, and in 1730 it was succeeded by the Superior Court of Judicature. The records between these dates are in our possession, and an examination of them shows that for some years it was the practice of the court to submit the question of damages in defaulted cases to a jury. The practice appears to have changed about the year 1710, for at the September term, 1709, in Burlington v. Whipple (Newport county), which was debt on a bond, upon defendant's default the damages were assessed by the court; and thereafter the latter practice gained, until, at the last term of the court before it was succeeded by the Superior Court of Judicature and Inferior Courts of Common Pleas, created in 1729 (1. e., March term, 1730), of 254 defaulted cases at that term, the damages in each case were assessed by the court, nor does there appear at that term a single defaulted case in which the damages were assessed by a jury. So that this may safely be said to have been the constant and established practice during the latter years of the first court created in the colony. But the act of the General Assembly specifically authorizing this method of procedure was not passed until 1767 (supra), and seems to have been rather a recognition of and authority for what may be termed the common law of the colony, as seems also to have been the fact in Connecticut. See Lennon v. Rawitzer, 57 Conn. 583, 19 Atl. 334. Indeed, it would seem that in this col

ony the claim was made of record as late as 1722 of a right to a trial otherwise than by a jury-that is to say, a trial by wager of law; for at the September term, 1722, of the Court of Trials at Newport, the defendant appealed from a judgment of a justice court in an action of detinue, whereby the plaintiff recovered judgment below for return of the property detained, or in lieu thereof the defendant to pay plaintiff forty shillings. On the appeal in the Court of Trials the plaintiff below did not appear, but made default, and the court reversed the judgment below and awarded judgment in favor of the appealing defendant for costs. It is of interest to note that in this case one of this defendant's reasons of appeal is thus stated: "For that the defendant ought to have been allowed the benefit of his wager in Law, that he detaineth no Gun of the plaintiff's and thereby discharge himself, but was not;" and cites authorities. And, indeed, in the Case of the Abbot of Strata Mercella, 9 Coke's Rep., at page 56, it is said by Lord Coke that "wager of law countervails a jury. Also trial may be in

debt upon a simple contract, detinue, etc., either by wager of law of the defendant himself, or by jury at the defendant's election." And in 1724, in an action of detinue, the defendant's counsel, who was then the Attorney General of the colony, filed the following plea: "And the Defendant prays the Benefit of the Law," and that the "Plaintiff's action may be barred." The defendant also pleaded nondelivery and nondetainer, with prayer to the country, and the case was finally submitted to a jury, who found for the defendant, the record not showing whether the defendant so elected or not. The counselor who advanced this claim in the former case was six years later, in 1728, appointed by the General Assembly, together with the then Attorney General, a former Attorney General, and the "General Recorder" or Secretary of State, the fourth member of the commission to revise the laws of the colony and to print the laws of the colony "now in force" (4 R. I. Col. Rec. p. 408), and which prepared the Digest of 1730, supra.

Even in criminal cases the court for many years acted under a statute which adjudged a respondent who did not appear, but made default, to be guilty, and then proceeded to impose sentence. The act creating the office of Attorney General, in 1650 (1 R. I. Col. Rec. 225), is as follows: "That the Atturney Generall shall have full power to impleade any transgression of the lawe of this State in any Courte of this State; but especially to bringe all such matters of penall lawes to tryall of the Generall Courte of Tryalls, as also for the tryall of the officers in the State at the General Assemblies, and to impleade in the full power and authoritie of the free people of this State, their prerogatives and liberties;" and he was authorized "that upon information of transgressions or transgressors of the lawes, prerogatives and liberties of the

people, and their penall lawes, he shall under hand and seale take forth summons from the President or Generall Assistants, to command any delinquent, or vehemently suspected of delinquencie in what kind so ever accordinge to the premises, to appeare at the Generall Courte, if it be thereto belonginge, or to the Generall Assemblie in those matters proper thereunto; and if any refuse to apeare at that mandamus in the State of England's name and the free people of this State, he shal be judged guiltie, and so proceeded with according to fine or penaltie."

In 1717, in the "Court of Tryalls" for Newport county, upon an indictment for illegal cohabitation, the respondent "being called in court appeared not but made default, whereupon the sentence of this court is," and then follows a fine.

And in 1724, upon an indictment for larceny, the respondent "made default, Whereupon the sentence and judgment of this court is that the said respondent Restore and pay unto said [owners] three pounds ten shillings, being two-fold, and to be whipped on your naked back on the 10th of this Inst. September, at the Publick Whipping Post in Newport with fifteen stripes or pay a fine of fifty shillings to the King to and for the support of the Government, and pay the charges of the prosecution, Conviction, &c. And to Remain in the Custody of the Sheriff till this Sentence be performed;" and similar proceedings were had on other indictments.

In 1745, upon an indictment for uttering counterfeit money, the respondent "being solemnly called in court did not appear. ✦✦ And afterwards the said respondent was brought into Court and by virtue of an Act of Ye General Assembly of said Colony was to have a Trial notwithstanding the former Default."

Here is to be found a recognition of the doctrine, which had been advocated long before, that default even in a civil action was not only the defendant's admission of the truth of the contention, but that it was in itself a contemptuous and disobedient act, and therefore blameworthy. Thus, Bracton, writing about the end of the reign of Henry III (1272), prescribes that, upon default in a civil action ex delicto, damages should be assessed by the court; and if the defendant have no lands or goods, and be not found, he should be considered as an outlaw, not, indeed, to suffer death or dismemberment if captured, but nevertheless to be perpetually imprisoned and kept from all who live in the King's peace, since there is no greater offense than contempt and disobedience of the King's summons. De Legibus Et Consuetudinibus Angliae, Lib. V, fol. 440 (Ed. of 1640): "Si autem placitum esset civile descendens ex delicto sicut actio injuriarum quòd tunc per officium Justic. aestimaretur injuria et adhibita taxatione de redditib et catallis fugientis caperetur in manu dñi Regis ad valen

tiam p(ro) contumacia ipsius et fieret eodem modo sicut supra. Si autem cùm corpus non inveniatur nec terras habuerit nec catalla ille de quo queritur, iniquum esset si justitia remaneret vel malitia esset impunita. Quia nullum majus crimen quàm contemptus et inobedientia, omnes enim qui in regno sút obedientes esse debent dño Regi, & ad pacem suam, & cûm vocati vel sumoniti per Regem venire contempserint, faciut seipsos exleges & ideo utlagari deberent, non tamen ad mortem vel membroru truncationem si postea redierint, vel intercepti fuerint, cùm causa utlagationis criminalis non existat, sed ad perpetuam prisonam, vel regni abjurationem, et à communione aliorum qui sunt ad pacem dni Regis." But this is rather a statement of that which Bracton considered was the proper course to be pursued than a statement of the law as it is to be found in the early reported cases of the Year Books.

Even after our independence of Great Britain had been declared, a similar course was pursued. In 1779 (8 R. I. Col. Rec. p. 609) there was enacted an act confiscating the estates of those who had adhered to the King and had aided his forces, and providing as follows: "And whereas it is necessary that some mode of trial should be instituted whereby to determine what estates are forfeited by force of this act and whereby those persons who may be accused of offences in this act described may have their estates defended in the best manner that their situations will admit of;" and providing for the number of jurors to be drawn to attend such trials, and for notice to a respondent, and that "any person or persons who have claim to the same estate in such information or complaint mentioned" might, "either in their own right or on the part and behalf of the person accused or of any person whomsoever," come and defend, "and the issue shall be tried by a jury in the known and ordinary course of law used and approved in this state, to try whether such estate demanded or any part thereof is forfeited by force of this act," etc.

In 1780, in Newport county, sundry informations were preferred by the Attorney General, alleging violations of this act, and praying for a forfeiture to the state of the respondents' lands bounded and described as set forth in the informations. In the single case tried by a jury at that term the verdict was in favor of the respondent; but in 22 cases the respondent made default, and in each case judgment of forfeiture to the state of the respondent's lands was rendered by the court upon default. Inasmuch as these proceedings were had in the Superior Court of Judicature, this action of the highest court in the state in thus divesting title to real estate upon default must be accepted as "the known and ordinary course of law used and approved in this state" at that time.

By the act creating the Superior Court of Judicature it was expressly given all the powers which were vested in the courts of law in England; since at the June session, 1729, the General Assembly of this colony enacted "An Act for Establishing of Inferior Courts of Common Pleas in the several Counties of this Colony," to which courts were given "Cognizance of all Civil Actions arising or happening within such County Tryable at the Common Law of what Naure, Kind or Quality soever," with a right of appeal to the Supreme Court of Judicature created by the same act, to which was also given "Cognizance of all Pleas real, personal and mixt, as also Pleas of the Crown and Causes criminal and Matters relating to the Conservation of the Peace and Punishment of Offenders and generally of all other Matters as fully and amply to all Intents and Purposes whatsoever as the Court of Common Pleas, King's Bench or Exchequer in His Majesty's Kingdom of England have or ought to have, and are Impowered to give Judgment therein and to award Execution thereon and make such necessary Rules of Practice as the Judges shall from time to time see needful"-thereby conferring the same jurisdiction conferred upon the "Generall Court of Tryalls" by the act of 1666 (Digest of 1719, p. 15).

The practice in the Inferior Court of Common Pleas was from the beginning that damages should be assessed by the court, even in tort actions. Thus, at the November term, 1730, in Newport county, in an action of trespass for the unlawful taking and abuse of the plaintiff's horse, upon the defendant's default damages were assessed by the court, as was also the procedure at the same term in an action of detinue.

The first records of this court in Providence county begin with the June term, 1731. At that term in divers cases judgment was given for the plaintiff by the default of the defendant, and in each case the damages were assessed by the court, and in no case was a writ of inquiry of damages issued, and among these were 15 cases in debt and 21 actions of the case. Nor was the assessment of damages by the court confined to actions ex contractu, since in each of the following cases the defendant made default, and in each instance the damages were assessed by the court: In 1740, in case by bail against principal who had failed to appear in the original action and had not satisfied the judgment therein; in 1741, in trover after general issue pleaded "et de hoc," etc.; in 1743, in trespass de bonis asportatis for entering the plaintiff's close and carrying away "229 oak rails of the plaintiff, of the value of £7, and other enormities unto the plaintiff, the defendant did then and there do," after general issue pleaded and prayer to the country; in 1743, in trespass for an assault after son assault demesne pleaded; in 1774, in trespass charging that defendant "did cut down

and carry off from said land (of plaintiffs) Ten Timber Trees," after title pleaded from respondent's grantor by warranty deed and summons ad warrantizandum issued and served; in 1776, in trespass on the case against a truckman for negligence in transportation of certain goods of the plaintiff, whereby they were destroyed; in 1776, in trespass for an assault, and "not guilty" pleaded and prayer to the country; and in the same year in trespass alleging that the defendant "set fire to the Brush and Leaves and other dry stuff lying on Plaintiff's land, also after 'not guilty' pleaded and prayer to the country."

The present Constitution of the state took effect on the first Tuesday of May, 1843. Section 15 of article 1 contains this provision, "The right of trial by jury shall remain inviolate;" and this court has held in Bishop v. Tripp, 15 R. I. 466, 8 Atl. 692, that this does not extend the right of jury trial, but preserves it as it was at that time. An examination of the record of the Court of Common Pleas in Providence county for the December term, 1842, which was the last term before the present Constitution became operative, shows that there were 289 defaulted cases at that term, in each of which the damages were assessed by the court, and that in no defaulted case were the damages assessed by a jury. And the statute in that behalf then existing is in substance identical with the statute now in force.

Nor are decisions wanting in the courts of other states and of the United States which sustain the power of the court to assess damages in defaulted cases without the intervention of a jury.

In Brown v. Van Braam, 3 Dall. 344, 1 L. Ed. 629, the Supreme Court of the United States decided, in 1797, in a case arising under the law of Rhode Island, that damages were properly assessed by the court in this state without the intervention of a jury, and overruled an exception to their assessment by the court on the ground that the law and the practice in Rhode Island expressly authorized the assessment of damages by the court, Mr. Justice Chase concurring, because, in his opinion, such was the provision of the common law. And see opinion of Mr. Justice Story in Renner & Bussard v. Marshall (1816) 1 Wheat. 215, 4 L. Ed. 74.

In Raymond v. Danbury & Norwalk R. R. Co. (1877) 14 Blatchf. 133, Fed. Cas. No. 11,593, it is said by the United States Circuit Court for the District of Connecticut, in an action for negligence, that "the assessment of damages upon a default, either in actions of tort or of contract, stood upon a different footing from the trial of issues of fact. The conclusion is that the assessment of damages by a jury upon a default is matter of practice and not of right."

In Hopkins et al. v. Ladd (1864) 35 Ill. 178, the court said of a case where damages were assessed by the court upon the defendant's