
    [*] STALCOPE against COPNER.
    In dower, if damage be not assessed by the jury, a writ of inquiry to issue.
    This was a dower cause, tried at the Salem Circuit, before Rossell, Justice. There were two issues tried, to wit, marriage and seisin. The jury found a verdict for the defendant, but neglected to assess damages.
    
      Grane, for the defendant,
    moved the court to award a writ of inquiry to assess damages; in support of which motion he cited Sayer on Damages, page 126. This [97] was opposed by Leake, Sergeant, on the ground, that where issue is joined in a cause, a writ of inquiry cannot be awarded; in support of which he cited, 5 Comy. Dig. Title Pleader, Z. 2; 2 Bac. 18; 8 Comy. Title Damages, E. 2; 2 Black Com. 397, from which he argued, that the remedy in this case, was to order a new trial; and contended that Sayer on Damages, was not an authority to be relied on in this case. The question was argued in September Term; the court took time to look into the authorities — and in this term Pennington, Justice delivered the following opinion; in which the Chief Justice and Rossell, Justice, concurred.
   Pennington, J.

— The jury in this case, having found for the demandant, and omitting to assess the damages, a motion is made on the return of the postea, for a writ of inquiry to assess the damages. This motion is objected to, on the ground, that the jury who tried the cause, ought to have assessed the damages, and that a writ of inquiry cannot go in this case, it being a mere inquest of office, on which no attaint lies. The rule of law on this subject, appears to me to be, that where the jury who try the cause, omit to assess the damages, in case the matter omitted to be inquired by the jury is such as goes to the very point of the issue, and constitutes the gist of the action, as in assumpsit and trespass — and upon which, if a false verdict be found by the jury, an attaint will lie against them; there, such matter cannot be supplied by a writ of inquiry; for there, the party injured, may lose his action of attaint, [*] which will not lie upon an inquest of office. But where the matter omitted to be inquired of by the principal jury, doth not go to the point in issue, nor constitute the gist of the action, but is collateral, there, such matter may be supplied by a writ of inquiry. I take the latter, to be the case under consideration; the issues tried by the principal jury, were the marriage of the demandant, and the seisin of the husband; the damages were not the point in issue, nor did it constitute the gist of action. The demand-ant may have judgment for a third part of the land, without damages, which shows, that the damages was not the point at issue, but arise collaterally, and therefore, proper to be supplied by a writ of inquiry. Whether Sayer on Damages, cited by the counsel for the plaintiff, be a book of authority or not, I will' not undertake to determine; it appears to me to be an essay of considerable merit, and his opinion on this point, page 126, to correspond with analogous cases to be found in the books on this subject, and to be within the reason and principle of the law. Besides which, the punishment by attaint has become obsolete, and the remedy in case of a false verdict, [98] is now by way of new trial; a writ of inquiry, as I apprehend, may be set aside for the same cause. At common law, where the reason of the law ceases, the law also ceases. But if the doctrine and practice of attaint were in full vigor, I apprehend a writ of inquiry in this case might issue. It is true, that the jury who tried the cause, might have assessed the damages, and in all ordinary cases, it is the most convenient and less expensive manner of doing it, and therefore to be recommended; but in case they omit to do it, a writ of inquiry is the most safe and convenient mode; a venire de novo would put in hazard, an important right already found. I am, for these reasons, of opinion that a writ of inquiry be awarded.

By the Court. — Let a writ of inquiry issue.

Leake, Sergeant, then moved that the writ of inquiry be executed in the presence of one of the justices of this court; but the coui't considering it a plain matter of inquiry, refused the motion.  