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Page:United States Reports, Volume 2.djvu/257

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Scrum: Coun or ‘Pmq,{ylwul•. agi •&ion here in his own name. The at}, then, onl enables an r7g6. indorfee ro fue, where the note was originally made payable to yy`; order or ailigns: That it fhould be fo payable, is the very effence of the plaintif’s title; and he cannot recover unlefs -it is alled- ged in the pleadings, as well as proved on the trial. There is a material difference between verdi€ts and inquefls, not only in the folemnity and publicity of the proceedings, but in the re- quilites to form a decifion. The interlocutory judgment com- ‘pels an inquefl: to find fome damages; and, therefore, it is not neceifary to prove a note before the inqueflt, as it is before a j;ry_; nor is it indifpenfable to produce in the former, as it would in the latter, cafe, an indorfable note. The allirmance of the judgment, on the retum to a writ of inquiry, is in legal contemplation the a& of the court; but it is done, experts, at the inftance of the plaintiff; and it cannot amount to more than ‘ an afiirmance of the caufe of aétion, as it is {lated on the record. But even regarding the verdiét, on a writ of inquiry, in the light of a general verdi&, it is not neeeffarily to be prefumed, that the Note was made payable to order, or alligns; nor that the faél: was fo proved. T e prabata may be fuppofed tobe co- extenlive with the allegnrn, but not more; and there is an obs vious diflzinéiion between a faél, which conliitutes the plaintitPs only legal title to the aétion, and a faét (as in the cafes cited from Burr. 2020. Cawp. 82 g.) which merely localizes the fuit. If the effence of the plaintiff’s title is omitted, nothingcanbe - prefumed in fupport of averdiét: No proof at the trial can make good a declaration, which contains no ground of aélion on the face of it; Douglas 683. Tidd’.t Pr. 614. M*Ks.nr, Cbigf :—··I¢ occurred, at once to the Court, that, if the objeflion was not made toolate-, it mull prevail. There is nothin , however, on the record to fhew, that the parties were bong fully heard upon executing the writ of inqui· — ry; and, after an interlocutory judgment, the inqueft were bound to give fome damages. There is, likewife, in the nature of the fubjeél, in reafon, and in law, a material difference be- tween a verdict, which is obtained upon a public trial in open Court, where counfel are employed to inveftigate the merits, and judges to fuperintend the decilion, of the caufe, -anda ` verdi€t, which is obtained on a writ of enquiry, i.fl`ued ex- purtc, and executed without fuch important aids to enlighten and direct the judgment of the inqueft. In the prefent in- ltuncc, in maybe remarked, that great in'ufiice might be done to the defendant ; for, if the note fhould, by any means, get again into Vuytonlr hands, and he fhould fue upon it, could a judg- ment in favor of the prefent plaintifbc pleaded in bar to that aélion ? I i2 It