And paupers, that is, such as will swear themselves not worth five pounds, are, by statute 11 Hen. VII. c. 12, to have original writs and subpoenas gratis, and counsel and attorney assigned them without fee; and are ex. cused from paying costs, when plaintiffs, by the statute 23 Hen. VIII. c. 15. but shall suffer other punishment at the discretion of the judges. And it was formerly usual to give such paupers, if nonsuited, their election either to be whipped or pay the costs (w): though that practice is now disused (x) (16). It seems however agreed, that a pauper may recover costs, though he pays none (17); for the counsel and clerks are bound to give their labour to him, but not to his antagonist (y) (18). To prevent also trifling and malicious actions, for words, for assault and battery, and for trespass, it is enacted by statutes 43 Eliz. c. 6 (19), 21 Jac. I. c. 16, and 22 & 23 Car. II. c. 9. § 136, that, where the jury who try any of these actions shall give less damages than 40s. the plaintiff shall be allowed no more costs than damages, unless the judge before whom the cause is tried shall certify under his hand on the back of the record, that an actual battery (and not an assault only) was proved, or that in trespass

the freehold or title of the land came chiefly in question. Also [*401] by statute 4 & 5 W. & M. *c. 23. and 8 & 9: W. III. c. 11. if the

trespass were committed in hunting or sporting by an inferior tradesman, or if it appear to be wilfully and maliciously committed, the plaintiff shall have full costs (2), though his damages as assessed by the jury amount to less than 40s.

After judgment is entered, execution will immediately follow, unless the party condemned thinks himself unjustly aggrieved by any of these proceedings, and then he has his remedy to reverse them by several writs in the nature of appeals, which we shall consider in the succeeding chapter.

(w) I Sid. 261. 7 Mod. 114. (2) Salk. 506.

(y) 1 Equ. Cas. Abr. 125.
(2) See page 214, 215.

not liable to costs unless by the special order extend them from a sum under 40s. to full of the court. (2 R. S. 615, § 17.)

costs. If the defendant justifies the battery, (16) But, as observed in Tidd Prac. 8 ed. the plaintiff shall have full costs without the 94, it does not appear that so disgraceful a judge's certificate, though the damages are proceeding was ever adopted by inflicting the under 10s., for it is held ihe admission of the punishment.

defendant precludes the necessity of the cer(17) 1 Bos. & P. 39. The pauper in such tificate. But a justification of the assault only case can only recover as costs the sums he is will not be sufficient for this purpose; for the actually out of pocket, not such sums as would judge must certify an actual battery. 3 T. R. have been so paid in an ordinary suit by any 391. This certificate also may be granted a other plaintift; and it seems that he and his reasonable time after the trial. 2 Bar. & solicitor may be required to state on oath the Cres. 621 & 580. amount thus expended in equity. Hullock on In declarations for assault and battery, Costs, 228.

there is sometimes a count for tearing the (18) See 2 R. S. 444, 91, &c.

plaintiff's clothes; and if this is stated as a (19) The 43 Eliz. c. 6. enacts, that where substantive injury, and the jury find it to have the plaintiff in any personal action, except been such, and not to have happened in con. for any title or interest in lands, or for a bat- sequence of the beating, the plaintiff will be tery, recovers less than 40s. he shall have no entitled to full costs (I T. R. 656.); unless the more costs than damages, if the judge certi- judge should assist the defendant under the fies that the debt or damages were under 408. 43 Eliz. c. 6. So in a trespass upon land, the But if the judge does not grant such a certi- carrying away, or asportavit

, of any indepen. ficate to the dofendant, the plaintiff recovers dent personal property will entitle the plaintiff full costs. Actions of trespass vi el armis, as to fall costs, unless the asportation, as by for beating a dog, are within the statute. 3 digging and carrying away turves, is a mode T. R. 38. The certificate under the statute or qualification of the trespass upon the land. may be granted after the trial. This certifi. Doug. 780. See these acts, and the cases cate, it will be remarked, is to restrain the upon them, fully collected, Tidd, 987, 8. 996 costs; but a certificate under the 22 & 23 Car. to 1005. II. c. 9. is given in favour of the plaintiff to

с

CHAPTER XXV.

OF PROCEEDINGS IN THE NATURE OF APPEALS.

PROCEEDINGS, in the nature of appeals from the proceedings of the king's courts of law, are of various kinds: according to the subject-matter in which they are concerned. They are principally four.

1. A writ of attaint (1): which lieth to inquire whether a jury of twelve men gave a false verdict (a); that so the judgment following thereupon may be reversed: and this must be brought in the lifetime of him for whom the verdict was given; and of two at least of the jurors who gave it. This lay at the common law, only upon writs of assise ;86and seems to have been coeval with that institution by king Henry II. at the instance of his chief justice Glanvil: being probably meant as a check upon the vast power then reposed in the recognitors of assise, of finding a verdict according to their own personal knowledge, without the examination of witnesses. And even here it extended no farther than to such instances, where the issue was joined upon the very point of assise (the heirship, disseisin, &c.), and not on any collateral matter; as villenage, bastardy, or any other disputed fact. In these cases the assise was said to be turned into an inquest or a jury (assisa vertitur in juratum), or that the assise should be taken in modum juratae et non in medum assisae ; that is, that the issue should be tried by a common jury or inquest, and not by recognitors of assise (6): and then I apprehend that no attaint lay against the inquest or jury that determined such collateral issue (c). Neither do I find any mention made by our ancient writers, of such a process obtaining after the trial by inquest or jury, in the old Norman or feodal actions * pro- [*403] secuted by writ of entry.87 Nor did any attaint lie in trespass, debt, or other action personal, by the old common law: because those were always determined by common inquests or juries (d). At length the statute of Wesim. 1. 3 Edw. I. c. 38. allowed an attaint to be sued upon inquests, as well as assises, which were taken upon any plea of land or of freehold. But this was at the king's discretion, and is so understood by the author of Fleta (e), a writer contemporary with the statute ; though sir Edward Coke (f ) seems to hold a different opinion. Other subsequent statutes (8) introduced the same remedy in all pleas of trespass, and the statute 34 Edw. III. c. 7. extended it to all pleas whatsoever, personal as well as real; except only the writ of right,88in such cases where the mise or issue is joined on the mere right, and not on any collateral question. For though the attaint seems to have been generally allowed in the reign of Henry the Second (h), at the first introduction of the grand assise (which at that time might consist of only twelve recognitors, in case they were all unanimous), yet subsequent authorities have holden, that no attaint lies on a false verdict given upon the mere right, either at common law or by statute ; because that is determined by the grand assise, appealed to by the party himself, and now consisting of sixteen jurors (i).

The jury who are to try this false verdict must be twenty-four, and are called the grand jury; for the law wills not that the oath of one jury of twelve men should be attainted or set aside by an equal number, nor by less indeed than double the former (k). If the matter in dispute be of forty pounds value in personals, or of forty shillings a year in lands and tenements, then by statute 15 Hen. VI. c. 5. each grand juror must have freehold to the annual value of twenty pounds. And he that brings the attaint can give no other evidence to the grand jury, than what was originally given to the petit. For as their verdict is now trying, and the question is, whether or no they did right upon the evidence that appeared to

them, the law adjudged it the highest absurdity to produce any [*404] subsequent proof upon such trial, and to *condemn the prior ju

risdiction for not believing evidence which they never knew. But those against whom it is brought are allowed, in affirmance of the first verdict, to produce new matter (1); because the petit jury may have formed their verdict upon evidence of their own knowledge, which never appeared in court. If the grand jury found the verdict a false one, the judg. ment by the common law was, that the jurors should lose their liberam legem and became for ever infamous ; should forfeit their goods and the profits of their lands; should themselves be imprisoned, and their wives and children thrown out of doors ; should have their houses razed, their trees extirpated, and their meadows ploughed; and that the plaintiff should be restored to all that he lost by reason of the unjust verdict. But as the severity of this punishment had its usual effect, in preventing the law from being executed, therefore by the statute 11 Hen. VII. c. 24. revived by 23 Hen. VIII. c. 3. and made perpetual by 13 Eliz. c. 25. an attaint is allowed to be brought after the death of the party, and a more moderate punishment was inflicted upon attainted jurors ; viz. perpetual infamy, and, if the cause of action were above 401. value, a forfeiture of 201. apiece by the jurors, or, if under 401., then 51. apiece: to be divided between the king and the party injured. So that a man may now89 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 proceed

ing from whence our attaint may be derived.—If, upon a lawful [*405) trial before a superior *tribunal, the jury were found to have given

a false verdict, they were fined, and rendered infamous for the future (o).

a

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. But of this enough bath been observed in a former chapter (p) (2).

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 darTein continuance, which, as was shewn in a former chapier (9), must always be before judgment), an 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 (o). 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 op- [*406] pressive 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 shewn 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).

a

IV. But, fourthly, the principal method of redress for erroneous judg. ments 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 cord, 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), (5).

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 poper (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 terms 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 (u) Append. No. III. 6 6.

(v) Finch, L. 484.

(10) 4 Burt. 1099.
(2) Co. Litt. 260.

audita querela was lately brought in the case fore the king himself. But if the error be in of Nathan v. Giles, 7 Taunt. 557. 1 Marsh. the judgment itself, and not in the process, a 226. S. C.; and it was there held that a writ writ of error does not lie in the same court of audita querela need not be moved for, upon such judgment. Roll. Ab. 746. In the but is a proceeding of common right and er de- common pleas, the record and process being bito justiciae. However the supersedeas found. stated to remain before the king's justices, the ed thereon must be moved for. If the plaintiff writ is called a writ of error coram vobis, or be nonsuited, he may have a new audita quere- quae coram vobis resident. On a judgment la, but he shall not have a supersedeas. F. N. against several parties, the writ of error must B. 104. 0. 9th edit. In Nathan v. Giles, the be brought in all their names, 6 Co. 25. 3 court declared their opinion, that there can be Mod. 134. 5 ib. 16. I L. Raym. 244. 2 ib. no motion in arrest of judgment on an audita 1532. 3 Burr. 1792. 2 T. R. 737 ; but if one querela. 2 Saund. 148. a. f.t

or more die, the survivors may bring the writ (4) A writ of error lies for some error or de- of error. Palm. 151. 1 Stra. 234. Or if it fect'in substance, that is not aided, amend. be brought in the names of several, and one or able, or cured at common law, or by some of more refuse to appear and assign errors, they the statutes of jeofails. And it lies to the must be summoned, and severed, and then the same court in which the judgment was given, rest may proceed alone. Yelv. 4. Cro. Eliz. if it be erroneous in matter of fact only; for 892. 6 Mod. 40. 1 Stra. 234. Cas. Temp. error in fact is not the error of the judges, and Hardw. 135, 6. reversing it is not reversing their own judg- (5) But this writ cannot be brought after ment: as where an infant appeared by attor- twenty years, unless in case of personal disaney instead of guardian, or the plaintiff or de. bility from infancy, covertures, persons of unfendant at the time of commencing the suit sound mind, prisoners, or beyond seas; these was a married woman. If a judgment in the respectively ceasing, the writ must be brought king's bench be erroneous in matter of fact within five years afterwards. See stat. 10 & only, and not in point of law, it may be re- 11 W. III. c. 14. versed in the same court by writ of error co- In New-York the writ must be brought withram nobis, or quae coram nobis resident; so in two years, unless the party is under disabicalled from its being founded on the record lity, and then within two years after the remoand process, which are stated in the writ to val of the disability, provided the whole time remain in the court of the lord the king, be- shall not exceed five years. 2 R. S. 594,922, &c.

(+) In New-York the Supreme Court may used on motion before the count. 2 R. S. 554, compel a witness to testify to a matter to be $ 24, &c.