they have been expressly given by some subsequent statute. The statute 3 Hen. VII, c. 10, was the first which allowed any costs on a writ of error. But no costs were allowed the defendant in any shape, till the statutes 23 Hen. VIII, c. 15, 4 Jac. 1, c. 3, 8 and 9 Wm. III, c. 11, 4 and 5 Ann. c. 16, which very equitably gave the defendant, if he prevailed, the same costs as the plaintiff would have had, in case he had recovered. These costs on both sides are taxed and moderated by the prothonotary, or other proper officer of the court.

*The king (and any person suing to his use) (s) shall nei[*400] ther pay nor receive costs; for besides that he is not included under the general words of these statutes, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them. And it seems reasonable to suppose, that the queen-consort participates of the same privilege; for in actions brought by her, she was not at the common law obliged to find pledges of prosecution, nor could be amerced in case there was judgment against her. (t) In two other cases an exemption also lies from paying costs. Executors and administrators, when suing in the right of the deceased, shall pay none; (u) for the statute 23 Hen. VIII, c. 15, doth not give costs to defendants, unless where the action supposeth the contract to be made with, or the wrong to be done to, the plaintiff himself. 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 excused 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. (a) It seems, however, agreed that a pauper may recover costs, though he pays none;' for the counsel and clerks are bound to give the labour to him, but not to his antagonist. (y) 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, 21 Jac. I, c. 16, and 22 and 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, by statutes 4 and 5 W. and M. *c. 23, and 8 and 9 Wm. III, c. 11, if the trespass were [*401] committed in hunting or sporting by an inferior tradesman,

(8) Stat. 24 Hen. VIII, c. 8. (w) 1 Sid. 261. 7 Mod. 114.

(t) F. N. B. 101. Co. Litt. 133.
(x) Salk. 506.

1 In civil cases the rule is now other wise.

2 The statute 3 and 4 Wm. IV, c. 42, gives costs against executors suing in the right of their testator, in all cases in which they would be liable to costs if suing in their own right, unless the

(u) Cro. Jac. 229. 1 Ventr. 92. (y) 1 Eq. Ca. Abr. 125. court or judge otherwise orders. As to the law in America, see 3 Redf. on Wills, 295; Bostwick v. Brown, 15 Hun, 308.

3 Costs in such cases are given only when ordered by the court.

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.

*CHAPTER XXV.

OF PROCEEDINGS IN THE NATURE OF APPEALS.

[*402]

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

1. A writ of attaint: which lieth to enquire 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 assize; and 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 assize, 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 assize (the heirship, disseisin, &c.), and not on any collateral matter; as villenage, bastardy, or any other disputed fact. In these cases the assize was said to be turned into an inquest or jury (assisa vertitur in juratum), or that the assize should be taken in modum juratæ et non in modum assise; that is, that the issue should be tried by a common jury or inquest, and not by recognitors of assize: (b) 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 feudal actions *prosecuted by writ of entry. Nor did any attaint lie in [*403] 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 Westm. 1, 3 Edw. I, c. 38, allowed an attaint to be sued upon inquests, as well as assizes, which were taken upon any plea of land or of freehold. But this

(z) See pages 214, 215.

(a) Finch, L. 484.

(b) Bract. 1. 4, tr. 1, c. 34, §§ 2, 3, 4; tr. 3, c. 17; tr. 5, c. 4, §§ 1, 2. Flet. l. 5, c. 22, § 8. Co. Entr. 61, b. Booth, 213.

(c) Bract. c. 4, tr. 1, c. 84, § 2. Flet. ibid.

(d) Year-book, 28 Edw. III, 15, 17. Ass. pl. 15. Flet. 5, 22, 16.

1 Now abolished.

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 (ƒ) seems to hold a different opinion. Other subsequent statutes (g) 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 in 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 assize (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 assize, appealed to by the party himself, and now consisting of sixteen jurors. (2)

Jury in attaint.- 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 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 subsequent proof upon such trial, and to [*404] *condemn the prior jurisdiction 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: (7) 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 judgment by the common law was, that the jurors should lose their liberam legem (free law) and become forever 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 40l. value, a forfeit

(e) L. 5, c. 22, §§ 8, 16.

(g) Stat. 1 Edw. III, st. 1, c. 6. (i) Bract. 1. 4, tr. 5, c. 4, § 2. tit. attaint, 42. 1 Roll. Abr. 289. (k) Bract. l. 4, tr. 5, c. 4, § 2.

(f) 2 Inst. 130, 237.

(h) See page 389.

5 Edw. III, c. 7. 28 Edw. III. c. 8. Flet. 5, 22, 7. Britt. 242 b. Year-book, 12 Hen. VI. 6 Bro. Abr. Flet. l. 5, c. 22, § 7. (7) Finch, L. 486.

ure of 207. apiece by the jurors, or, if under 407., then 57. 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. 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), 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. (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 [*406]

(n) Cro. Eliz. 309. Cro. Jac. 90.

(m) 3 Inst. 164. (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. 1. 1, c. 4.

(p) See page 165.
(s) 1 Roll. Abr. 308.

1 Now abolished.

(q) See page 316.

(r) Finch, L. 488. F. N. B. 102.

2 [To hear the complaint.]

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.1

IV. Writ of error.- 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 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.2

Amendment of judgments.- 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, [*407] 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)

1 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.

2 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 cne of the parties is under coverture and the husband is improperly omitted from the proceedings, if one of the

(v) Finch, L. 484. (y) Stat. 11 Hen. IV, c. 3.

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. [See Suydam v. Williamson, 20 How. 437.]