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ing new trials, has so superseded the use of both sorts of attaints, that I have observed very few instances of an attaint in our books, later than the sixteenth century.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, (q) 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 petween 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 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 [*406] 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 court 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 court of record; for to amend errors in a base court, not of record, a writ (n) Cro. Eliz. 309. Cro. Jac. 90,

(o) 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. l. 1, c. 4. (r) Finch. L. 4SS. F. N B. 102. (u) Appendix, No. III, § 6.

(p) See page 165.

(8) 1 Roll. Abr. 308.

(9) See page 316.
(t) Lord Raym. 439.

(2) Abolished by statute 3 and 4 Wm. IV, c. 27.

(3) [Ch. J. Eyre says; "I take it to be the modern practice to interpose in a summary way, in all cases where the party would be entitled to relief on an audita querela." 1 Bos. and Pul. 428. In general the courts will not put the defendant to the trouble and expense of an audita querela, but will relieve him in a summary way on motion: 4 Burr. 2287; but where the ground of his relief is a release, when there is some doubt about the execution, or some matter of fact which cannot be clearly ascertained by affidavit, and therefore proper to be tried, the court has driven the defendant to his audita querela. 1 Salk. 93, 264; 1 Ld. Raym. 439; 12 Mod. 240; 2 Ld. Rayn. 1295; 2 Stra. 1198; see also, 5 Taunt. 561; 2 Marsh, 37. And indeed the indulgence which of late has been shown by courts of law in granting summary relief upon motion in most cases of evident oppression, for which the only remedy was formerly by audita querela, has occasioned this remedy now to be very rarely resorted to.]

[Equitable defences arising after lapse of the period during which they could be pleaded may be set up by way of audita querela. Com. Law Proc. Act, 1854, s. 84.]

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 n 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. (a) 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; [*407] 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) 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 faile), 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. (z) 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 yearbooks. So liberal were then the sentiments of the crown as well as the judges,

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(4) [A writ of error lies for some error or defect in substance, that is not aided, amendable, or cured at common law, or by some of the statutes of jeofails. And it lies to the same court in which the judgment was given, if it be erroneous in matter of fact only; for error in fact is not the error of the judges, and reversing it is not reversing their own judgment: as where an infant appeared by attorney instead of guardian, or the plaintiff or defendant at the time of commencing the suit was a married woman. If a judgment in the king's bench be erroneous in matter of fact only, and not in point of law, it may be reversed in the same court by writ of error coram nobis, or qua coram nobis resident; so called from its being founded on the record and process, which are stated in the writ to remain in the court of the lord the king, before the king himself. But if the error be in the judgment itself, and not in the process, a writ of error does not lie in the same court upon such judgment. 1 Roll. Ab. 746. In the common pleas, the record and process being stated to remain before the king's justices, the writ is called a writ of error coram vobis, or quæ coram vobis resident. On a judgment against several parties, the writ of error must be brought in all their names: 6 Co. 25; 3 Mod. 134; 5 id. 16; 1 Ld. Raym. 244; 2 id. 1532; 3 Burr. 1792; 2 T. R. 737; but if one or more die, the survivors may bring the writ of error: Palm. 151; 1 Stra. 234; or if it be brought in the names of several, and one or more refuse to appear and assign errors, they must be summoned, and severed, and then the rest may proceed alone. Yelv. 4; Cro. Eliz. 892; 6 Mod. 40; 1 Stra. 234; Cas. Temp. Hardw. 135, 136.]

(5) In addition to the statutes referred to by the author in the note, see 9 Geo. IV, c. 15; 3 and 4 Wm. IV, c. 42, and the common law procedure act, 1852.

The

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." judgments were entered up immediately by the clerks and officers 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 judges, who had made false entries on the rolls to cover their own misbehaviour, [*408]. 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 private 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, fouud it necessary (or convenient, in order to replenish his exchequer) to prosecute his judges for their corruption and other malpractices, the perversion of judgment 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 succeeding judges, that through a fear of being said to do wrong, they hesitated at doing what was right. [ *409 ] 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

(b) Brit. proem. 2, 3, (c) Judicia perverterunt, et in aliis erraverunt. Matth. West. A. D. 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, 31,000 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. Dugd. 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 à 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 Is. 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 (Pat. 29 Eiw. I, m. 7; Duddy. 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. Dudg. 31. Selden, pref. to Hengham. There is an appendix to this tradition, remembered by Justice Southcote in the reign of Queen Elizabeth (3 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 constracting 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. Feed. 590. Derham's Artif. Clockmaker, 91.

(e) 1 Hal. P. C. 647.

left it to be settled by posterity in which of the two rolls that absolute verity resides, which every record is said to import in itself. (f) 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 or any time, upon [ *410] equitable terms and conditions, they at-least should have 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 waving 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, (1) 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 mis-spellings; and justice was perpetually entangled in a net of mere technical jargon. The legis lature hath therefore been forced to interpose, by no less than twelve statutes, to remedy these opprobrious niceties: and its endeavours 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 [*411] appeal; and for securing payment of costs and damages, 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, (0) 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; (7) but where the proceedings in the king's bench do not first commence therein by bill, but by original writ sued out of chancery, (r) this (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.
(m) Stat. 3 Jac. I,
(n) 3 Hen. VII, c.
(o) Sec ch. 4.

(1) 8 Rep. 156. &c.

c. 8. 13 Čar. II, c. 2.
10. 13 Car. II, c. 2.
(p) Finch, L. 480.

16 and 17 Car. II, c. 8. 19 Geo. III, c. 70.
8 and 9 Wm. III. c. 11. 4 and 5 Anne, c. 16.
Dyer, 250. (q) Stat. 27 Eliz. c. 8. (r) See page 43.

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 state 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. (7)

CHAPTER XXVI.

OF EXECUTION.

IF the regular judgment of the court, after the decision of the suit, be 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 possessionem, 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

(8) 1 Roll. Rep. 264. 1 Sid. 424. 1 Saund, 340. Carth. 180. Comb. 295.
(a) Appendix. No. II, § 4.
(b) Finch, L. 470.

(6) But now, 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.

(7) This appeal is taken away by 23 Geo. III, c. 21. See book 1, p. 104, n. 15. Since the union, however, a writ of error lies from the superior courts in Ireland to the house of lords. Before the union with Scotland, a writ of error lay not within this country upon any judgment in Scotland; but it is since given by statute 6 Ann. c. 26, s. 12, from the court of exchequer in Scotland, returnable in parliament. And see the 48 Geo. III, c. 151, concerning appeals to the house of lords from the court of session in Scotland.

[In this chapter Sir W. Blackstone has considered only the modes by which a judgment may be reversed by writ of error brought in a court of appeal, and has stated that this can only be done for error in law. There is, however, a proceeding to reverse a judgment by writ of error in the same court, where the error complained of is in fact and not in law, and where of course no fault is imputed to the court in pronouncing its judgment. This writ is called the writ coram nobis, or coram vobis, according as the proceedings are in the king's bench or common pleas, because the record is stated to remain before us (the king), if in the former, and before you (the judges), if in the latter, and is not removed to another court. In this proceeding it is of course necessary to suggest a new fact upon the record from which the error in the first judg ment will appear; thus, supposing the defendant. being an infant, has appeared by attorney instead of guardian, it will be necessary to suggest the fact of his infancy, of which the court was not before informed. There is, therefore, no inconsistency in bringing this writ of error before the same judges who pronounced the judgment in the first instance, because they are required to pronounce upon a new state of facts, without impeachment of the former judgment on the facts as they then stood.]

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