cii PRINCE GEORGES COUNTY

of one James Cobb, not produced before the auditors, that he had paid Richard
Charlett about five years previously 900 pounds of tobacco on the account of
decedent William Graves. It thereupon appearing to the court that plaintiff was
indebted to defendant in the amount of 16 pounds of tobacco, judgment was given
for defendant. 63

At the time the matter of appointment of auditors was before the Assembly the
House of Delegates also resolved that "the severall Courts of Common Law within
this Province make Rules for the Speedy bringing to tryall of those Actions wherein
Merchants are Suitors." 64 However, no such rules appear in the Liber. It should
also be noted that only one instance of arbitration appears in the Liber.

Judgment

In a substantial number of cases judgment non prosequitur or a nonsuit was
entered against plaintiff, apparently on motion of defendant, for failure to prose-
cute his writ. Many entries are barren of any specific reasons for such judgment or
nonsuit. However, in some cases it appeared that plaintiff had failed to file a
declaration; in others, that neither plaintiff nor his attorney appeared when the
action came up for trial but defaulted; in still others, that plaintiff had filed his
declaration but refused to prosecute the writ and declaration any further. In
Clarke v. Williams (November 1696) defendant pleaded the general issue and put
himself upon the country. However, plaintiff's attorney "Refused to Joyne Issue
to the Defendant Whereby the Said Defendant Remains by the Said plantiffe un-
procecuted." The court thereupon adjudged that plaintiff take nothing by his writ
and awarded defendant costs and charges. 65

Apparently at one time, June 1698, the court was of the opinion that too many
actions were pending and unprosecuted for it ordered that "all Actions depending
in this Court Shall Come to tryall the next Court: or Else Judgments or Nonsuites
to be Awarded on them upon the neglect of any of the Attorneys Conserned
therein." However, despite this warning only three nonsuits were entered at the
August term. 66

As noted earlier the court in numerous instances entered (1) judgment by default;
(2) judgment by cognovit actionem, cognovit or confession; (3) judgment nihil
dicit; (4) judgment by non sum informatus; (5) judgment non prosequitur; and
(6) judgment of nonsuit. Normally such judgments carried an award of costs and
charges for plaintiff or defendant, as the case might be. In one case use of a writ of
inquiry of damages is found. Judgments quod recuperet were given (1) following
decision by the court on either an issue of fact or question of law; (2) upon the ver-
dict of a jury; or (3) upon the return of auditors. While the Liber shows a number of
actions marked "agreed", it was not customary to have judgment entered upon
such settlements. Judgment nil capiat per breve appears in a few cases.

A form of provisional judgment appears in Willson's Executors v. Mockeboy,
in August 1699, in which defendant pleaded payment of part of the account sued
on but could produce no proof thereof. The court therefore awarded judgment
for the plaintiff with the proviso that "if the Said Mackeboy make appear any
part of the Said Debt be paid by the next Court then it is ordered that it be allowd
out of the aforesaid Judgment." 67

63. Infra 312-13.

64. 19 MA 229, 246, 359.

65. Infra 85-86.

66. Infra 350.

67. Infra 531-32.