2838 ARTICLE 75

they shall forthwith return their inquisition under their hands and seals
and the court shall order such judgment to be extended in accordance with
the terms of such finding of the jury.

Errors and irregularities.

A fi. fa and an attachment held invalid because there was no entry of an interlocutory
judgment before inquisition, nor any final judgment rendered upon inquisition. Griffith

v. Lynch, 21 Md. 578.

Where an order under act of 1794, ch. 46, charges the jury to inquire of the damages,
omitting "and costs," and inquisition is for damages "and about ten dollars for costs,"
these are mere formal defects which may be cured by amendment. Kiersted v. Rogers,
6 H. & J. 287. And see Harris v. Jaflray, 3 H. & J. 543.

Where judge assesses damages without a jury, declaration containing common counts
and a special count claiming unliquidated damages, appellate court will assume in
absence of all proof to contrary, that court in assessing damages proceeded under
common counts, and not under special count. How question of such irregularity should
be raised. Homer v. O'Laughlin, 29 Md. 472.

Generally.

The same rules of evidence apply in inquisition proceedings as in other cases. Smith
v. Dolan, 170 Md. 655.

Act of 1794, ch. 46, places inquisition on a judgment by default on same footing
with other jury trials. Parties may pray the opinion of court, take bills of exception
and appeal as in other cases. The inquisition may be set aside for same grounds as
would avail on motion for new trial. Excessive damages. Evidence. Green v. Hamilton,
16 Md. 330.

Act of 1794, ch. 46, assumes and proceeds on the theory that all interlocutory judg-
ments, where inquisitions are required to give them effect, establish plaintiff's right to

recover without regard to amount jury may ascertain to be due. A judgment by default
if regularly entered is as binding as any other as far as respects power and jurisdiction
of court in declaring plaintiff entitled to recover. Heffner v. Lynch, 21 Md. 555; Green
v. Hamilton, 16 Md. 329.

Where parties fix amount of recovery by agreement, the inquisition is waived and
final judgment may be entered. The final judgment does not relate back and take
effect as of date of judgment by default, and latter judgment is not a lien on defen-
dant's property. Davidson v. Myers, 24 Md. 554.

Where three years have elapsed since a judgment by default, although there is no
change of parties, the judgment should be revived and extended by a sci. fa. Bridges v.
Adams, 32 Md. 580.

This section contains no limitation as to time in which inquisitions on judgments
by default must be had. The act of 1S64, ch. 175, applies to judgments entered by
default prior to its passage. There is no obligation upon court to delay entering judg-
ment upon an inquisition, although it may delay where occasion requires. Stansbury
v. Keady, 29 Md. 367.

Amount of damages assessed by court without a jury under this section and a practice
act of Baltimore City is not open for revision on appeal when no exception on that
ground was taken, unless damages exceed the amount claimed in the declaration. Morris
v. Wrenschall, 34 Md. 502.

Act of 1794, ch. 46, is remedial, and does not interfere with the statute of VIII and
IX William III, ch. 11, providing for assessment of damages where there is a judgment
by default in action on bond with collateral conditions. Wilmer v, Harris, 5 H. & J. 8.

Act of 1794, ch. 46, did not give the right to an inquiry of damages where none existed
before. Hopewell v. Price, 2 H. & G. 276.

Cited but not construed in Martindale v. Brock, 41 Md. 581; Murray v. Hurst, 163
Md. 486.

See art. 26, sec. 18.

See art. 50. sec. 13.

Cited in Fid. & Dep. Co. v. Lumber Co., 176 Md. 219.

An, Code, 1924, sec. 95. 1912, sec. 90. 1904, sec, 90. 1888, sec; 87. 1785, ch. 80, sec. 13.

95. In all cases of actions brought for the penalty of any bond, bill,
covenant or contract with penalty, the jury may, under the" direction of
the court, upon the plea of payment or performance of the conditions or
terms of the contract, ascertain and by their verdict find what sum of
money is really and justly due to the plaintiff; and upon such finding,
judgment shall be entered by the court for the penalty, to be released upon

payment of the sum of money so found to be due, and interest On the same

till paid, and costs of suit; and the sum really due as aforesaid, or in any