prohibition of any statute. (1) But now, in case of trespass, ejectment, assault, and false imprisonment, it is provided by the statute 5 and 6 W. and M., c. 12, that no writ of capias shall issue for this fine, nor any fine be paid; but the plaintiff shall pay 68. Sd. to the proper officer, and be allowed it against the defendant among his other costs. And, therefore, upon such judgments in the common pleas, they used to enter that the fine was remitted, and now in both courts they take no notice of any fine or capias at all. (m) *But [*399] if judgment be for the defendant, then, in case of fraud and deceit to the court, or malicious or vexatious suits, the plaintiff may also be fined; (n) but in most cases it is only considered that he and his pledges of prosecuting be (nominally) amerced for his false claim, pro falso clamore suo, and that the defendant may go thereof without a day, eat inde sine die, that is, without any farther continuance or adjournment; the king's writ, commanding his attendance, being now fully satisfied, and his innocence publicly cleared. (0)

Thus much for judgments; to which costs are a necessary appendage; it being now as well the maxim of ours as of the civil law, that "victus victori in expensis condemnandus est:" (p) though the common law did not professedly allow any, the amercement of the vanquished party being his only punishment. The first statute which gave costs, eo nomine, to the demandant in a real action was the statute of Gloucester, 6 Edw. I, c. 1, as did the statute of Marlbridge, 52 Hen. III, c. 6, to the defendant in one particular case, relative to wardship in chivalry: though in reality costs were always considered and included in the quantum of damages, in such actions where damages are given; and, even now, costs for the plaintiff are always entered on the roll as increase of damages by the court. (g) But, because those damages were frequently inadequate to the plaintiff's expenses, the statute of Gloucester orders costs to be also added; and farther directs, that the same rule shall hold place in all cases where the party is to recover damages. And, therefore, in such actions where no damages were then recoverable (as in quare impedit, in which damages were not given till the statute of Westm. 2, 13 Edw. I), no costs are now allowed; (r) unless 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. I, 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 neither pay nor [*400] 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. (7) 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. (f) 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. (8) 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 (m) Salk. 54. Carth. 390. (n) 8 Rep. 59. 60. (9) Appendix. No. II, § 4. (r) 10 Rep. 116. Co. Litt. 133. (u) Cro. Jac. 229. 1 Ventr. 92.

(1) 8 Rep. 60.

(p) Cod. 3, 1, 13. (t) F. N. B. 101.

(7) In civil cases the rule is now otherwise.

(0) Appendix, No. III, § 6.
(8) Stat. 24 Hen. VIII, c. 8.

(8) The statute 3 and 4 Wm. IV, c. 42, gives cost 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 court or judge otherwise orders.

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) (9) It seems, however, agreed that a pauper may recover costs, though he pays none; (10) for the counsel and clerks are bound to give their 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 committed in hunting or [*401 ] sporting by an inferior tradesman, or if it appear to be wilfully and maliciously committed, the plaintiff shall have full costs, (z) 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.

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.

I. 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 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 assisæ; that is, that the issue should be tried by a common jury or inquest, and not by recognitors of

(w) 1 Sid. 261. 7 Mod. 114. (z) Sec pages 214, 215.

(x) Salk. 506.

(a) Finch, L. 484.

(y) 1 Eq Ca. Abr. 125.

(9) [But, as observed in Tidd Prac. 8th ed. 94, it does not appear that so disgraceful a proceeding was ever adopted by inflicting the punishmeut.]

(10) [1 Bos. and P. 39. The pauper in such case can only recover as costs the sums he is actually out of pocket; not such sums as would have been so paid in an ordinary suit by any other plaintiff.]

(1) Abolished by statute 6 Geo. IV, c. 50.

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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. [*403] 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 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 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 (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 unanmous), 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. (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 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 condemn the prior [*404] 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 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 407. value, a forfeiture of 20l. apiece by the jurors, or, if under 401., 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 reverse the former judgment. But the practice of setting aside verdicts upon motion, and grant(b) Bract. l. 4, tr. 1, c. 31, §§ 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. 4, 1. 34. 2. Flet, ibid. (d) Year-book, 28 Edw III, 15, 17. Ass. pl. 15. Flet. 5, 22, 16. (e) L. 5, n. 22, 45 8. 16. (ƒ) 2 Inst, 130, 237. (g) Stat. 1 Edw. III, st. 1, c. 6. 5 Edw. III, c. 7. 28 Edw. III, c. 8. (h) See page 589. (i) Bract. l. 4, tr. 5, c, 4, 42. Flet. 5. 22, 7. Britt. 242, b. Year-book, 12 Hen. VI. 6 Bro. Abr. tit, atteint, 42 1 Roll. Abr. 289. (k) Bract. l. 4, tr. 5, c. 4, § 2. Flet. l. 5, c. 22, § 7.

(1) Finch, L. 186.

(m) 3 Inst. 164.

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, (7) 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 défendentis, 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 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. 488. F. N. B. 102. (u) Appendix, No. III, § 6.

(p) See page 165.

(s) 1 Roll. Abr. 308.

(7) 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, m 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. (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; [ *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,

(v) Finch, L. 484. (z) Stra. 1011.

(w) Burr. 1099.

(x) Co. Litt. 260.

(y) Stat. 11 Hen. IV, c. 3.

(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 act). 4 and 5 Anne, c. 16. 9 Anne, c. 20. 5 Geo. I, c. 13.

(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 quæ 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.