Statute self-acting.- 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) by which all trifling exceptions are so thoroughly guarded against, that writs of error cannot now be maintained, but for some material mistake assigned.1 Origin of amendments. 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" (without that strictness to the letter; that rigid custom not being observed, that he who fails in one syllable loses the whole cause). 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 unwarrantable practices of some judges, who had made false entries [*408] 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 private rasure or amendment be altered to any sinister purpose. Reason for ancient narrowness in amendments.- But when afterwards King Edward, on his return from his French dominions in (z) Stra. 1011. (a) Stat. 14 Edw. III, c. 6. 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 a ct). 4 and 5 Anne, c. 16. 9 Anne, c. 20. 5 Geo. I, c. 13. (b) Brit. proem. 2, 8. 1 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 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 alterating 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 [*409] 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 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. (2) If they durst *not, or would not, set [*410] right mere formal mistakes at any time, upon equitable (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 6s. 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. 23 Edw. I, m. 8) and the next year made chief justice of the common pleas (Pat. 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 (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 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. Fæd. 590. Derham's Artif. Clockmaker, 91. (e) 1 Hal. P. Č. 647. (f) 1 Leon. 183. Co. Litt. 117. See page 331. (h) Stat. 14 Edw. III, c. 6. (g) 1 Hal. P. C. 648. (i) In those days it was strictly true, what Ruggle (in his Ignoramus) has humorously applied to 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 waiving the attaint the condition of allowing the amendment! And yet these were among the absurd reasons alleged for never suffering amendments at all! () The result. 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 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 opprobrious niceties: and its endeavors have been of late so well seconded by judges of 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. Bail on writ 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 a few particular instances, by virtue of the several statutes cited in the margin. (n) From what court error lies.- - 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 more modern pleading—“ in nostra lege unum comma evertit totum placitum" (in our law one comma overturns the whole plea). (k) Styl. 207. (1) 8 Rep. 156, &c. 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 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. 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. 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. (q) Stat. 27 Eliz. c. 8. (r) See page 43. (s) 1 Roll. Rep. 264. 1 Sid. 424. 1 Saund. 346. Carth. 180. Comb. 295. 1 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 recov ered, etc., to the house of lords from the court of appeal in England, and from any Scotch or Irish courts from which an appeal laid 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. Forms of execution. 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 (that you give him seisin), or writ of seisin, of a freehold; or an habere facias possessionem (that you give him possession), 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 presentment, *the execution is by a writ de clerico admittendo (on [*413] admitting the clerk); directed not to the sheriff, but to the bishop or archbishop, and requiring him to admit and institute the clerk of the plaintiff. 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 assize of nuisance, 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) 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) 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 show cause why they should not be delivered: and if the defendant still continues obstinate, then (if the judgment hath been by default or on demurrer) the sheriff shall summon an inquest to ascertain the value of the goods, and the plaintiff's damages: which (being either so assessed, or by the verdict in case of an issue), (h) shall be levied on the person or goods of the defendant. So that, after all, in replevin and detinue (the only actions for recovering the specific possession of personal chattels), if the wrongdoer be very perverse, he cannot be compelled to a restitution of the identical thing taken or detained; but he still has his election to deliver the goods or their value: (2) an imperfection in the law, that results from the nature of personal property, which is easily concealed or conveyed out of the reach of justice, and not always amenable to the magistrate. In money actions.-*Executions in actions where money only is recovered, as a debt or damages (and not any specific (a) Appendix, No. II, § 4. [*414] (b) Finch, L. 470. (e) See page 149. (f) 2 Leon. 174. (i) Keilw. 64 |