*by the common law : but when judgment is once given and en- [*407] rolled, 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 (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);o by which all trifling exceptions are so thoroughly guarded against, that writs of error cannot now be maintained, but for some material mistake assigned (6).

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 preceived 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 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 un- [*408] warrantable practices of some 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 (6), 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

(y) Stat. 11 Hen. IV. c. 3. (z) Stra. 1011.

(a) Stat. 14 Edw. III. c. 6. 9 Ien. V. c. 4. 4 Hen. VI. c. 3. 8 Hen. VI. c. 12 & 15. 32 Hen. YUL. c. 30. 18 Eliz. c. 14. 21 Jac. I. c. 13. 16 &

17 Car. II. c. 8. (styled in 1 Ventr. 100. an omnipotent act), 4 & 5 Ann. c. 16. 9 Ann. c. 20. 5 Gecil. c. 13.

(0) Brit. proem. 2, 3.

(6) And now, by stat. 9 Geo. IV. c. 15, eve. the trial is pending, to be forthwith amended Ty court of record holding plea in civil actions, in such particular by some officer of the court, any judge sitting at Nisi Prius, and any court on payment of such costs, if any, to the other of oyer and terminer and general gaol delive. party as such judge or court shall think rea. ry in England, &c. and Ireland, if any such sonable, and thereupon the trial shall proceed court or judge shall see fit to do so, may cause as if no such variance had appeared ; and in the record on which any trial may be pending case such trial shall be had at Nisi Prius, the before any such judge or court, in any civil order for the amendment shall be indorsed on action, or in any indictment or information for the postea, and returned together with the re. any misdemeanor, when any variance shall cord; and thereupon the papers, rolls, and appear between any matter in writing or in other records of the court from which such reprint produced in evidence, and the recital or cord issued, shall be awarded accordingly. setting forth thereof upon the record, wherein As to New York, see 2 R. S. 424.

(91) See Hov n (91) at the end of the Vol. B. III.

a

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 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 mal-practices, 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, (*409] even the most able and upright (d). The severity of which "pro

ceedings seems to have alarmed the succeeding 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 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 nar. rowness of thinking was added, that every slip (even of a syllable or letter) (k) 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 [*410] mere formal mistakes at any time, upon equitable terms and conditions, they at least should have held, that trifling objections were at all times inadınissible; 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 (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 legislature hath therefore been forced to interpose, by no less than twelve statutes, to remedy these opprobious 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 counterpleas 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 pay- [*411] ment of costs and damages, which are now payable by the vanquished party in all, except in a few particular instances, by virtue of the several statules recited in the margin (n) (7).

(i) In those days it was strictly true, what Rug. (?) 8 Rep. 156, &c.
gle (in his ignoramus) has humorously applied to
more modern pleadings, “in nostra lege unum
CORNO evertit lotum placitum."
(k) Styl. 207.

,W. III. c. 41. 4 & 5 Ann. c. 16. (7) By the 3 Jac. I. c. 8. (made perpetual and also to satisfy and pay, if the said judg. by 3 Car. I. c. 4. 3. 4.) to restrain unnecessary ment be affirmed, or the writ of error nondelays of executions, it was provided, " that prossed, all and singular the debts, damages, in the actions therein specified, no writ of er- and costs'adjudged upon the former judgment, ror should be allowed, unless the party bring and all costs and damages to be awarded for ing the same, with two sufficient sureties, shall the delaying of the execution.”+ And now first be bound unto the party for whom the by the 6 Geo. IV. c. 96. for further preventing judgment is given, by recognizance to be ac. the delays occasioned by frivolous writs of er: knowledged in the same court, in double the ror, it is enacted, that upon any judgment sum, to be recovered by the former judgment, hereafter to be given in any of the courts of to prosecute the said writ of error with effect, record at Westminster, in the counties pala

† In New York, the condition of the bond is dollars if returnable in the court of errors. (2 as above, if intended to operate as a stay of R. S. 595, ( 27, &c.) Bonds must be given execution; if not so intended, then the bond is in actions real or mixed as well as in personal in the penal sum of 150 dollars if the writ be actions. returnable in the supreme court, and in 300 Vol. II.

43

(m) Stat. 3 Jac. I. c. 8. 13 Car. II. c. 2. 16 & 17 Car. II. c. 8. 19 Geo. III. c. 70.

(n) 3 Hen. VII. c. 10. 13 Car. II. c. 2. 8 & 9

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 (8). 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 (9); 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 (); 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 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 deci. sion of every civil action. 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.

(0) See chap. 4.
(p) Finch, L. 480. Dyer. 250.
(9) Stat. 27 Eliz. c. 8.

(T) See page. 43.

(s) 1 Roll. Rep. 264. 1 Sid. 424. Carth. 160. Comb. 295.

1 Saund. 346.

tine, and in the courts of great session in of practice was followed in this case (viz. not Wales, in any personal action, execution shall to pass over more than one return between the not be stayed or delayed by any writ of error, teste and return), the court therefore refused or supersedeas thereapon, without the special to quash the writ. 4 Bar. & Cres. 116. And order of the court, or some judge thereof, un- in another case, the court of king's bench held, less a recognizance, with a condition accord that the court could not quash a writ of error ing to the 3 Jac. I. c. 8. (above noticed) be upon a judgment of the common pleas of Durfirst acknowledged in the same court. After ham, nor Award execution upon the judgment final judgment, and before execution executed, of an inserior court. 4 Dowl. & R. 153. a writ of error is, generally speaking, a su. (8) This appeal is taken away by 23 Geo. persedeas of execution from the time of its al- III. c. 21. See I book, p. 104. n. 15. Since the lowance, 1 Vent. 31. | Salk. 321. I T. R. union, however, a writ of error lies from the 280. 2 B. & P. 370.2 East, 439. 5 Taunt. superior courts in Ireland to the house of lords. 204. i Gow. 66. I Chitty R. 238. 241. 3. Before the union with Scotland, a writ of er. Moore, 89; but it is no supersedeas unless ror lay not in this country upon any judgment bail in error be put in, and notice thereof given in Scotland ; but it is since given by statute within the time limited by the rules of the 6 Ann. c. 26. 8. 12. from the court of exche. court. 2 Dowl. & Ry. 85. And when it is quer in Scotland, returnable in parliament. apparent to the court, that a writ of error is And see the 48 Geo. III. c. 151. concerning brought against good faith, 2 T. R. 183. 8 appeals to the house of lords from the court of Taunt. 434. or for the mere purpose or delay, session in Scotland. 4 T. R. 436. 2 M. & S. 474. 476. 1 Bar. & (9) The 31 Edw. III. c. 12. directs, that the Cres. 287; or it is returnable of a term previ- chancellor and treasurer shall take to their as. ous to the signing of final judgment, Barnes, sistance the judges of the other courts, and 197. it is not a supersedeas. Tidd, 8 ed. 1202. autres sages come lour semblera. But the 20 In Tidd, 1199. 8 ed, it is said, that there must Car. II. c. 4. has dispensed with the presence be fifteen days between the teste and return of the lord treasurer, when the office is vacant; of a writ of error; but it was said in Laidler and it is the practice for the two chief justices V. Foster, where there was an interval of alone to sit in this court of error, who report twelve days only, that there is a distinction their opinion to the chancellor, and the judg. between writs of error and those which are the ,ment is pronounced by him. coinmencement of a suit; and the usual course

CHAPTER XXVI.

OF EXECUTION.

These are

If the regular judgment of the court, after the decisions 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,92 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 (6). 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 assise93of darrein presentment, *the execution is [*413) 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 (1).

In other actions, where the judgment is that something in special be done or rendered by the defendant, then, in order to compel him so to do, and to see the judgment executed, a special writ of execution issues to the sheriff according to the nature of the case. As, upon an assise of nusance,94 or quod permittat prosternere, where one part of the judgment is quod nocumentum amoveatur, a writ goes to the sheriff to abate it at the charge of the party, which likewise issues even in case of an indictment (c) (2). Upon a replevin, the writ of execution is the writ de retorno habendo (d): and, if the distress be eloigned, the defendant shall have a capias in withernam (e); but on the plaintiff's tendering the damages and submitting to a fine, the process in withernam shall be stayed (f) (3). In detinue, after judgment, the plaintiff shall have a distringas, to compel the defendant to deliver the goods, by repeated distresses of his chattels (g): or else a scire facias against any third person

in whose hands they may happen to be, to shew cause why

(@) Append. No. II. $ 4.
(6) Finch, L. 470.
(c) Comb. 10.
(d) See page 150.

(c) See page 149.
() 2 Leon. 174,
(g) 1 Roll. Abr. 737. Rast. Entr. 215.

(1) The writ recites the judgment of the (2) That is, if it be stated in the indictment court, and orders him to admit a fit person to that the nuisance is still existing. If it does the rectory and parish church at the presenta. not appear in the indictment that the nuisance tion of the plaintiff; and if upon this order was then in existence, it would be absurd to he refuse to admit accordingly, the patron give judgment to abate a nuisance which does may sue the bishop in a quare non admisit, and not xist. 8 T. R. 144. recover ample satisfaction in damages. 2 Sel. (3) Vide p. 145. n. (1) ante. Prac, 330.

(92) See Hov. n. (92) at the end of Vol. B. III. (93) Ib. (93) B. III. (94) Ib. (94) B. III.