value, a forfeiture of 20%. apiece by the jurors, or, if under 40l., then 5. apiece: to be divided between the king and the party injured. So that a man may now bring an attaint either upon the statute or at common law, at his election; (m) and in both of them may reverse the former judgment. But the practice of setting aside verdicts upon motion, and granting new trials, has so superseded the use of both sorts of attaints, that I have observed very few instances of an attaint in our books, later than the sixteenth century. (n) By the old Gothic constitution, indeed, no certificate of a judge was allowed, in matters of evidence, to countervail the oath of the jury; but their verdict, however erroneous, was absolutely final and conclusive. Yet there was a proceeding from whence our attaint may be derived. If, upon a lawful trial before a superior *tribunal, the jury were found to have given a false verdict, they were fined, and rendered infamous for the future. (0) [*405] II. The writ of deceit, or action on the case in nature of it, may be brought in the court of common pleas, to reverse a judgment there had by fraud or collusion in a real action, whereby lands and tenements have been recovered to the prejudice of him that hath right. (2) But of this enough hath been observed in a former chapter. (p) III. An audita querela is where a defendant against whom judgment is recovered, and who is therefore in danger of execution, or perhaps actually in execution, may be relieved upon good matter of discharge, which has happened since the judgment; as if the plaintiff hath given him a general release; or if the defendant hath paid the debt to the plaintiff, without procuring satisfaction to be entered on the record. In these and the like cases, wherein the defendant hath good matter to plead, but hath had no opportunity of pleading it (either at the beginning of the suit, or puis darrein continuance, which, as was shown in a former chapter, (2) must always be before judgment), and audita querela lies, in the nature of a bill in equity, to be relieved against the oppression of the plaintiff. It is a writ directed to the court, stating that the complaint of the defendant hath been heard, audita querela defendentis, and then, setting out the matter of the complaint, it at length enjoins the court to call the parties before them, and having heard their allegations and proofs, to cause justice to be done between them. (r) It also lies for bail, when judgment is obtained against them by scire facias to answer the debt of their principal, and it happens afterwards that the original judgment against their principal is reversed: for here the bail, after judgment had against them, have no opportunity to plead this special matter, and therefore they shall have redress by audita querela; (s) which is a writ of a most remedial nature, and [*406] seems to have been invented, lest in any case there should be an oppressive defect of justice, where a party who hath a good defence is too late to make it in the ordinary forms of law. But the indulgence now shown by the courts in granting a summary relief upon motion, in cases of such evident oppression, (t) has almost rendered useless the writ of audita querela, and driven it quite out of practice. (3) IV. But, fourthly, the principal method of redress for erroneous judgments in the king's courts of record, is by writ of error to some superior court of appeal. A writ of error (u) lies for some supposed mistake in the proceedings of a (m) 3 Inst. 164. (0) Si tamen evidenti argumento falsum jurasse convinsantur (id quod superius judicium cognoscere debet) mulctantur in bonis, de cætero perjuri et intestabiles." Stiernh. de jure Goth. 1. 1, c. 4. (p) See, page 165. (a) 1 Roll. Abr. 308. (n) Cro. Eliz. 309. Cro. Jac. 90. (r) Finch, L. 488. F. N. B. 102. (2) Now abolished. (3) If the defendant is clearly entitled to relief the court will grant it on new trial, without forcing him to an audita querela: Lister v. Mundell, 1 B. & P., 427; but if the case is doubtful, the defendant will be left to his writ, that the plaintiff may demur or bring error. Symonds v. Blake, 2 Cr. M. & R., 416. court of record; for to amend errors in a base court, not of record, a writ of false judgment lies. (v) The writ of error only lies upon matter of law arising upon the face of the proceedings; so that no evidence is required to substantiate or support it: there being no method of reversing an error in the determination of facts, but by an attaint, or a new trial, to correct the mistakes of the former verdict. (4) Formerly, the suitors were much perplexed by writs of error brought upon very slight and trivial grounds, as mis-spellings and other mistakes of the clerks, all which might be amended at the common law, while all the proceedings were in paper; (w) for they were then considered as only in fieri, and therefore subject to the control of the courts. But, when once the record was made up, it was formerly held, that by the common law no amendment could be permitted, unless within the very term in which the judicial act so recorded was done: for during the term the record is in the breast of the court; but afterwards it admitted of no alteration.(x) But now the courts are become more liberal; and, where justice requires it, will allow of amendments at any time while the suit is depending, notwithstanding the record be made up, and the term be past. For they at present consider the proceedings as in fieri, till judgment is given; and therefore that, till then, they have power to permit amendments* by the common law: but when judgment is once given and enrolled, no amendment is permitted in any subsequent term. (y) [*407] Mistakes are also effectually helped by the statutes of amendment and jeofails: so called, because when a pleader perceives any slip in the form of his proceedings, and acknowledges such error (jeo fuile), he is at liberty by those statutes to amend it; which amendment is seldom actually made, but the benefit of the acts is attained by the court's overlooking the exception. (2) These statutes are many in number, and the provisions in them too minute to be here taken notice of otherwise than by referring to the statutes themselves; (a) by which all trifling exceptions are so thoroughly guarded against, that writs of error cannot now be maintained, but for some material mistake assigned. (5) This is at present the general doctrine of amendments; and its rise and history are somewhat curious. In the early ages of our jurisprudence, when all pleadings were ore tenus, if a slip was perceived and objected to by the opposite party, or the court, the pleader instantly acknowledged his error and rectified his plea; which gave occasion to that length of dialogue reported in the ancient year-books. So liberal were then the sentiments of the crown as well as the judges, that in the statute of Wales, made at Rothelan, 12 Edw. I, the pleadings are directed to be carried on in that principality, "sine calumpnia verborum, non observata illa dura consuetudine, qui cadit a syllaba cadit a tota causa. The judgments were entered up immediately by the clerks and offi (v) Finch, L. 484. (z) Stra. 1011. (a) Stat. 14 Edw. III, c. 6. (10) Burr. 1099. 9 Hen. V, c. 4. 4 Hen. VI, c. 3. 8 Hen. VI, c. 12 and 15. 32 Hen. VIII, c. 30. 18 Eliz. c. 14. 21 Jac. I, c. 13. 16 and 17 Car. II, c. 8 (styled in 1 Ventr. 100, an omnipotent act). 4 and 5 Anne, c. 16. 9 Anne, c. 20. 5 Geo. I. c. 13. (4) If, however, there was error in fact in the proceedings, not error in law, a writ of error coram nobis or coram vobis might issue to the trial court to enable it to correct the error. Thus, if the defendant is a minor and appears by attorney instead of by guardian, if one of the parties is under coverture and the husband is improperly omitted from the proceedings, if one of the parties dies before judgment, if there is some error in the record caused by a ministerial officer of the court; in any such case the judgment would be erroneous in fact, though perhaps good in law. If the cause were in the K. B., the writ would be coram nobis, before us, as the record remaining in the court where the king is constructively; if it were in the common pleas, the writ would be coram vobis, before you, since the record remains then before the justices of that court. Tidd. Pr., 1136-7. See Kemp v. Crook, 18 Md., 130; Lane v. Williams, 12 Sm. & M., 362; Boughton v. Brown, 8 Jones (N. C.), 393; Teller v. Wetherell, 6 Mich., 46. (5) In addition to the statutes referred to by the author in the note, see 9 Geo. IV, c. 15; 8 and 4 Wm. IV, c. 42, and the Common Law Procedure Act, 1852. 233 VOL. II.-30 cers of the court; and if any misentry was made, it was rectified by the minutes, or by the remembrance of the court itself. When the treatise by Britton was published, in the name and by authority of the king (probably about the 13 Edw. I, because the last statutes therein referred to are those of Winchester and Westminster the second), a check seems intended to be given to the unwarrantable practices of some [*408] judges, who had made false entries on the rolls to cover their own misbehaviour, and had taken upon them by amendments and rasures to falsify their own records. The king therefore declares, (b) that "although we have granted to our justices to make record of pleas pleaded before them, yet we will not that their own record shall be a warranty for their own wrong, nor that they may rase their rolls, nor amend them, nor record them contrary to their original enrolment." The whole of which, taken together, amounts to this, that a record surreptitiously or erroneously made up, to stifle or pervert the truth, should not be a sanction for error; and that a record, originally made up according to the truth of the case, should not afterwards by any pri vate rasure or amendment be altered to any sinister purpose. But when afterwards King Edward, on his return from his French dominions in the seventeenth year of his reign, after upwards of three years' absence, found it necessary (or convenient, in order to replenish his exchequer) to prosecute his judges for their corruption and other malpractices, the perversion of judgments and other manifold errors, (c) occasioned by their erasing and altering records, were among the causes assigned for the heavy punishments inflicted upon almost all the king's justices, even the most able and upright. (d) The severity of which proceedings *seems so to have alarmed the suc [*409] ceeding judges, that through a fear of being said to do wrong, they hesitated at doing what was right. As it was so hazardous to alter a record duly made up, even from compassionate motives (as happened in Hengham's case, which in strictness was certainly indefensible), they resolved not to touch a record any more; but held that even palpable errors, when enrolled and the term at an end, were too sacred to be rectified or called in question; and, because Britton had forbidden all criminal and clandestine alterations, to make a record speak a falsity, they conceived that they might not judicially and publicly amend it, to make it agreeable to truth. In Edward the Third's time indeed, they once ventured (upon the certificate of the justice in eyre) to estreat a larger fine than had been recorded by the clerk of the court below; (e) but instead of amending the clerk's erroneous record, they made a second enrolment of what the justice had declared ore tenus; and left it to be settled by posterity in which of the two rolls that absolute verity resides, which every (b) Brit. proem. 2, 3. (c) Judicia perverterunt, et in aliis erraverunt. Matth. West. A. A. 1289. (d) Among the other judges, Sir Ralph Hengham, chief justice of the king's bench, is said to have been fined 7,000 marks; Sir Adam Stratton, chief baron of the exchequer, 34,000 marks; and Thomas Wayland, chief justice of the common pleas, to have been attainted of felony, and to have abjured the realm, with a forfeiture of all his estates: the whole amount of the forfeitures being upwards of 100,000 marks, or 70,000 pounds (3 Pryn. Rec. 401, 402)—an incredible sum in those days, before paper credit was in use, and when the annual salary of a chief justice was only sixty marks. Claus. 6 Edw. I, m. 6. Dudg. Chron. Ser. 26. The charge against Sir Ralph Hengham (a very learned judge, to whom we are obliged for two excellent treatises of practice), was only, according to a tradition that was current in Richard the Third's time (Year-book, M. 2 Ric. III, 10), his altering, out of mere compassion, a fine, which was set upon a very poor man, from 13s. 4d. to 68. 8d., for which he was fined 800 marks-a more probable sum than 7,000. It is true, the book calls the judge so punished Ingham, and not Hengham; but I find no judge of the name of Ingham in Dugdale's Series; and Sir Edward Coke (4 Inst. 655) and Sir Matthew Hale (1 P. C. 646) understand it to have been the chief justice. And certainly his offence (whatever it was) was nothing very atrocious or disgraceful; for, though removed from the king's bench at this time (together with the rest of the judges), we find him, about eleven years afterwards, one of the justices in eyre for the general perambulation of the forest (Rot. perambul, forest, in turri Lond. 29 Edw. I, m. 8) and the next year made chief justice of the common pleas (Put. 29 Edw. I, m. 7; Dugd. Chron. Ser. 32), in which office he continued till his death, in 2 Edw. II, Claus. 1 Edw. II, m. 19. Pat. 2 Edw. II, p. 1, m. 9. Dugd. 34. Selden pref. to Hengham. There is an appendix to this tradition, remembered by Justice Southcote in the reign of Queen Elizabeth (8 Inst. 72; 4 Inst. 255), that with this fine of Chief Justice Hengham, a clock-house was built at Westminster, and furnished with a clock, to be heard into Westminster hall. Upon which story I shall only remark that (whatever early instances may be found of the private exertion of mechanical genius in constructing horological machines) clocks came not into common use till a hundred years afterwards, about the end of the fourteenth century. Encyclopedie, tit. Horloge, 6 Rym. Fœd. 590. Derham's Artif. Clockmaker, 91. (e) 1 Hal. P. C. 647. record is said to import in itself. (ƒ) And, in the reign of Richard the Second there are instances (g) of their refusing to amend the most palpable errors and mis-entries, unless by the authority of parliament. To this real sullenness, but affected timidity, of the judges, such a narrowness of thinking was added, that every slip (even of a syllable or letter), (h) was now held to be fatal to the pleader, and overturned his client's cause. (i) If they durst *not, or would not, set right mere formal mistakes at any time, upon equitable terms and conditions, they at least should have [*410] held, that trifling objections were at all times inadmissible; and that more solid exceptions in point of form came too late when the merits had been tried. They might, through a decent degree of tenderness, have excused themselves from amending in criminal, and especially in capital, cases. They needed not have granted an amendment, where it would work an injustice to either party; or where he could not be put in as good a condition, as if his adversary had made no mistake. And, if it was feared that an amendment after trial might subject the jury to an attaint, how easy was it to make waiving the attaint the condition of allowing the amendment! And yet these were among the absurd reasons alleged for never suffering amendments at all! (k) The precedents then set were afterwards most religiously followed, () to the great obstruction of justice, and ruin of the suitors: who have formerly suffered as much by this scrupulous obstinacy and literal strictness of the courts, as they could have done even by their iniquity. After verdicts and judgments upon the merits, they were frequently reversed for slips of the pen or misspellings; and justice was perpetually entangled in a net of mere technical jargon. The legislature hath therefore been forced to interpose, by no less than twelve statutes, to remedy these opprobrious niceties: and its endeavors. have been of late so well seconded by judges of a more liberal cast, that this unseemly degree of strictness is almost entirely eradicated; and will, probably in a few years, be no more remembered than the learning of essoigns and defaults, or the counter-pleas of voucher, are at present. But to return to our writs of error. If a writ of error be brought to reverse any judgment of an inferior court of record, where the damages are less than ten pounds; or if it is brought to reverse the judgment of any superior court after verdict, he that brings the writ, or that is plaintiff in error, must (except in some peculiar cases) find substantial pledges of prosecution or bail: (m) to prevent *delays by frivolous pretences to appeal; and for securing payment of costs and dam- [*411] ages, which are now payable by the vanquished party in all, except a few particular instances, by virtue of the several statutes cited in the margin. (n) A writ of error lies from the inferior courts of record in England into the king's bench, (o) and not into the common pleas. (p) Also from the king's bench in Ireland to the king's bench in England. It likewise may be brought from the common pleas at Westminster to the king's bench; and then from the king's bench the cause is removable to the house of lords. From proceedings on the law side of the exchequer a writ of error lies into the court of exchequer chamber before the lord chancellor, lord treasurer, and the judges of the court. of king's bench and common pleas; and from thence it lies to the house of peers. From proceedings in the king's bench, in debt, detinue, covenant, account, case, ejectment, or trespass, originally begun therein by bill (except where the king is party), it lies to the exchequer chamber, before the justices of the common pleas and barons of the exchequer; and from thence also to the house of lords; (g) but where the proceedings in the king's bench do not first (f) 1 Leon. 183. Co. Litt. 117. See page 331. (g) 1 Hal. P. C. 648. (h) Stat. 14 Edw. III, c. 6. (In those days it was strictly true, what Ruggle (in his Ignoramus) has humorously applied to more modern pleadings-" in nostra lege unum comma evertit totum placitum." (k) Styl. 207. (1) 8 Rep. 156, &c. (m) Stat. 3 Jac. I, c. 8. 13 Car. II, c 2. 16 and 17 Car. II, c. 8. 19 Geo. III, c. 70. (p Finch, L. 480. (g) Stat. 27 Eliz. c. 8. commence therein by bill, but by original writ sued out of chancery, (r) this takes the case out of the general rule laid down by the statute; (s) so that the writ of error then lies, without any intermediate stage of appeal, directly to the house of lords, the dernier resort for the ultimate decision of every civil action. (6) Each court of appeal, in their respective stages, may, upon hearing the matter of law in which the error is assigned, reverse or affirm the judgment of the inferior courts, but none of them are final, save only the house of peers, to whose judicial decisions all other tribunals must therefore submit and conform their own. And thus much for the reversal or affirmance of judgments at law, by writs in the nature of appeals. CHAPTER XXVI OF EXECUTION. If the regular judgment of the court, after the decision of the suit, he not suspended, superseded, or reversed, by one or other of the methods mentioned in the two preceding chapters, the next and last step is the execution of that judgment; or putting the sentence of the law in force. This is performed in different manners, according to the nature of the action upon which it is founded, and of the judgment which is had or recovered. If the plaintiff recovers in an action real or mixed, whereby the seisin or possession of land is awarded to him, the writ of execution shall be an habere facias seisinam, or writ of seisin, of a freehold; or an habere facias possess ionem, or writ of possession, (a) of a chattel interest. (b) These are writs directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so recovered: in the execution of which the sheriff may take with him the posse comitatus, or power of the county; and may justify breaking open doors, if the possession be not quietly delivered. But, if it be peaceably yielded up, the delivery of a twig, a turf, or the ring of the door, in the name of seisin, is sufficient execution of the writ. Upon a presentation to a benefice recovered in a quare impedit, or assize of darrein [*413] presentment, the execution is by a writ de clerico admittendo, directed not to the sheriff, but to the bishop or archbishop, and requiring him to admit and institute the clerk of the plaintiff. (r) See page 43. (s) 1 Roll. Rep. 264. 1 Sid. 424. 1 Saund. 346. Carth. 180. Comb. 295. (6) By statute 1 Wm. IV, c. 70, and the Common Law Procedure Act, 1852, error upon any judgment of the queen's bench, common pleas or exchequer, must be brought in the exchequer chamber before the judges, or judges and barons as the case may be, of the other two courts, whence it again lies to the house of lords. But by the Judicature Acts of 1873 and 1875, the court of chancery, the queen's bench, the common pleas, the exchequer, the court of admiralty, the court of probate, and the court for divorce and matrimonial causes, were united to form one supreme court of judicature in England. The court was to consist of two parts, one of which, designated her majesty's high court of justice, was to exercise original jurisdiction, and the other to be known as her majesty's court of appeal, to have jurisdiction of appeals, superseding for this purpose the court of exchequer chamber, and also taking to itself a large share of the former appellate jurisdiction of the house of lords. By the Appellate Jurisdiction Act of 1876, § 59, an appeal is given with certain limitations as to amount recovered, etc., to the house of lords from the court of appeal in England, and from any Scotch or Irish courts from which an appeal lay to the house of lords before this act. The privy council has appellate jurisdiction in ecclesiastical causes and in colonial appeals, whether civil or criminal. Ex parte The Bishop of Exeter, 10 C. B., 102; Reg. v. Bertrand, 1 L. R. P. C., 520. |