PRIVATE WRONGS.
BOOK III.
Ch. 25.

CHAPTER THE TWENTY FIFTH.
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 fubject matter in which they are concerned. They are principally three.

I. A WRIT of attaint: which lieth to enquire whether a jury of twelve men gave a falfe verdict ^a; that fo the judgment following thereupon may be reverfed: and this muft be brought in the life-time fo him for whom the verdict was given, and of two at leaft of the jurors who gave it. This lay, at the common law, only upon verdicts in actions for fuch perfonal injuries as did not amount to trefpafs. For in real wrongs the party injured had redrefs by writ of right; but, after verdict againft him in perfonal fuits, he had no other remedy: and it did not lie in actions of trefpafs, for a very extraordinary reafon; becaufe, if the verdict was fet afide, the king would lofe his fine ^b. But by ftatute Weftm. 1. 3 Edw. I. c. 38. it was given in all pleas of land, franchife, or freehold: and, by feveral fubfequent ftatutes,

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^a Finch. L. 484.
^b Bro. Abr. t. atteint. 42.
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in
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in the reigns of Edward III ^c and his grandfon ^d, it was allowed in almoft every action, except in a writ of right; for there no attaint lay, either by common law or ftatute, becaufe it was determined by the grand affife, confifting of fixteen jurors ^e.

THE jury who are to try this falve verdict muft be twenty four, and are called the grand jury; for the law wills not that the oath of one jury of twelve men fhould be attainted or fet afide by an equal number, nor by lefs indeed than double the former. 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 queftion is whether or no they did right upon the evidence that appeared to them, the law judged it the higheft abfurdity to produce any fubfequent proof upon fuch trial, and to condemn the prior jurifdiction for not believing evidence which they never knew. But thofe againft whom it is brought are allowed, in affirmance of the firft verdict, to produce new matter ^f: becaufe the petit jury may have formed their verdict upon evidence of their own knowlege, which never appeared in court; and becaufe very terrible was the judgment which the common law inflicted upon them, if the grand jury found their verdict a falfe one. The judgment was, 1. That they fhould lofe their liberam legem, and become for ever infamous. 2. That they fhould forfeit all their goods and chattels. 3. That their lands and tenements fhould be feifed into the king's hands. 4. That their wives and children fhould be thrown down. 6. That their trees fhould be rooted up. 7. That their meadows fhould be ploughed. 8. That their bodies fhould be caft into goal. 9. That the party fhould be reftored to all that he loft by reafon of the unjuft verdict. But as the feverity of this punifhment had it's ufual effect, in preventing the law from being executed, therefore by the ftatute

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^c Stat 1 Edw. c. 6. 5 Edw. III. c. 7. 28 Edw. III. c. 8. 34 Edw. III. c. 7.
^d Stat. 9 Ric. II. c. 3.
^e Bro. Abr. t. atteint. 42.
^f Finch. L. 486.
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C c c 2

11 Hen. VII.

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11 Hen. VII. c. 24. revived by 23 Hen. VIII. c. 3. a more moderate punifhment was inflicted upon attainted jurors; viz. perpetual infamy, and, if the caufe of action were above 40 l. value, a forfeiture of 20 l. apiece by the jurors; or, if under 40 l, then 5 l. apiece; to be divided between the king and the party injured. So that a man may now bring an attaint either upon the ftatute or at common law, at his election ^g; and in both of them may reverfe the former judgment. But the practice of fetting afide verdicts upon motion, and granting new trials, has fo fuperfeded the ufe of both forts of attains, that I have not obferved any inftance of an attaint in our books, later than the fixteenth century^h. By the old Gothic conftitution 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 abfolutely final and conclufive. Teftes funt de judice et de actis ejus; judex vero de ipfis viciffim teftari non poteft, vere an falfo jurent: qualicunque enim eorum affertioni ftandum eft et judicandum.” Yet they had a proceeding from whence our attaint may be derived. If, upon a lawful trial before a fuperior tribunal, they were found to have given a falfe verdict, they were fined, and rendered infamous for the future. “Si tamen evidenti argumento falfum juraffe convincantur (id quod fuperius judicium cognofcere debet) mulctantur in bonis, de caetero perjuri et inteftabiles ⁱ.”

II. AN audita querela is where a defendant, againft whom judgment is recovered, and who is therefore in danger of execution, or perhaps actually in execution, may be relieved upon good matter of difcharge, which has happened fince the judgment: as if the plaintiff hath given him a general releafe; or if the defendant hath paid the debt to the plaintiff, without entering fatisfaction on the record. In thefe and the like cafes, wherein the defendant hath good matter to plead, but hath had no opportunity of pleading it, (either at the beginning of the

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^g 3 Inft. 164.
^h 1593. M. 35 & 36 Eliz. Cro Eliz. 309.
ⁱ Stiernhook de jure Goth. l. 1. c. 4.
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fuit, or puis darrein continuance, which, as was fhewn in a former chapter ^k, muft always be before judgment) an audita querela lies, in the nature of a bill in equity, to be relieved againft the oppreffion of the plaintiff. It is a writ directed to the court, ftating that the complaint of the defendant hath been heard, audita querela defendentis, and then fetting 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 caufe juftice to be done between them ^l. It alfo lies for bair, when judgment is obtained againft them by fcire facias to anfwer the debt of their principal, and it happens afterwards that the original judgment againft their principal is reverfed: for here the bail, after judgment had againft them, have no opportunity to plead this fpecial matter, and therefore they fhall have redrefs by audita querela ^m; which is a writ of a moft remedial nature, and feems to have been invented, left in any cafe there fhould be an oppreffive defect of juftice, where a party has a good defence, but by the ordinary forms of law had no opportunity to make it. but the indulgence now fhewn by the courts in granting a fummary relief upon motion, in cafes of fuch evident oppreffion ⁿ, and driven it quite out of practice.

III. BUT, thirdly, the principal method of redrefs for erroneous judgments in the king's courts of record, is by writ of error to fome fuperior court, of appeal.

A WRIT of error ^o lies for fome fuppofed miftake in the proceedings of a court of record; for, to amend errors in a bafe court, not of record, a writ of falfe judgment lies ^p. The writ of error only lies upon matter of law arifing upon the face of the proceedings; for that no evidence is required to fubftantiate or fupport it: and there is no method of reverfing an error in the de-

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^k See pag. 317.
^l Finch. L. 488. F. N. B. 102.
^m 1 Roll. Abr. 308.
ⁿ Lord Raym. 439.
^o Append. N^o. III. §. 6.
^p Finch. L. 484.
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termination
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Termination of facts, but by an attaint, or a new trial, to correct the miftakes of the former verdict.

FORMERLY the fuitors were much perplexed by writs of error brought upon very flight and trivial grounds, as mis-fpellings and other miftakes of the clerks, all which might be amended at the common law, while all the proceedings were in paper ^q; for they were then confidered as only in fieri, and therefore fubject 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 permitte, unlefs within the very term in which the judicial act fo recorded was done: for during the term the record is in the breaft of the court; but afterwards it admitted of no alteration ^r. But now the courts are become more liberal; and, where juftice requires it, will allow of amendments at any time while the fuit is depending, notwithftanding the record be made up, and the term be part. For they at prefent confider the proceedings as in fieri, till judgment is given; and therefore that, till then, they have power to permit amendments by the common law. Miftakes are alfo effectually helped by the ftatutes of amendment and jeofails: fo called, becaufe when a pleader perceives any flip in the form of his proceedings, and acknowleges fuch error (jeo faile) he is at liberty by thofe ftatutes to amend it; which amendment is feldom actually made, but the benefit of the acts is attained by the court's overlooking the exception ^s. Thefe ftatutes are many in number, and the provifions in them too minute and particular to be here taken notice of, otherwife than by referring to the ftatutes themfelves ^t; by which all trifling exceptions are fo thoroughly guarded againft, that writs of error cannot now be maintained, but for fome material miftake affigned.

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^q 4 Bur. 1099.
^r Co. Litt. 260.
^s Stra,. 1011.
^t Stat. 14 Edw. III. c. 6. 9 Hen. V. c. 4. 4 Hen. VI. c. 3. 8 Hen. VI. c. 12 & 15. 32 Hen. VIII. c. 30. 18 Eliz. c. 14. 21 Jac. I. c. 13. 16 & 16 Car. II. c. 8. (ftiled in 1 Ventr. 100. an omnipotent act) 4 & 5 Ann. c. 16. 9 Ann. c. 20. 5 Geo. I. c. 13.
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THIS
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THIS is at prefent the general doctrine of amendments; and it's rife and hiftory are fomewhat curious. In the early ages of our jurifprudence, when all pleadings were ore tenus, if a flip was perceived and objected to by the oppofite party or the court, the pleader inftantly acknowleged his error and rectified his plea; which gave occafion to that length of dialogue reported in the antient year-books. So liberal were then the fentiments of the crown as well as the judges, that in the ftatute of Wales, made at Rothelan, 12 Edw. I. the pleadings are directed to be carried on in that principality, fine calumpnia verborum, non obfervata illa dura confuetudine, “qui cadit a fyllaba cadit a tota caufa.” The judgments were entered up immediately by the clerks and officers of the court; and if any mif-entry was made, it was rectified by the minutes or the remembrance of the court itfelf.

WHEN the treatife by Britton was publifhed, in the name and by authority of the king, (probably about the 13 Edw. I. becaufe the laft ftatutes therein referred to are thofe of Winchefter and Weftminfter the fecond) a check feems intended to be given to the unwarrantable practices of fome judges, who had made falfe entries on the rolls to cover their own mifbehaviour, and had taken upon them by amendments and rafures to falfify their own records. The king therefore declares ^u that “although we have granted to out juftices to make record of pleas pleaded before them, yet we will not that their own record fhall be a warranty for their own wrong, nor that they may rafe their rolls, nor amend them, nor record them, contrary to their original enrollment.” The whole of which, taken together, amounts to this, that a record furreptifioufly or erroneoufly made up, to ftifle or pervert the truth, fhould not be a fanction for error; and that a record, originally made up according to the truth of the cafe, fhould not afterwards by any private rafure or amendment be altered to any finifter purpofe.

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^u Britt. proëm. 2, 3.
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BUT when afterwards king Edward, on his return from his French dominions is the feventeenth year of his reign, after upwards of three years abfence, found it neceffary (or convenient) to profecute his judges for their corruption and other mal-practices, the perverfion of judgments ^w by erafing and altering records was one of the caufes affigned for the heavy punifhments inflicted upon almoft all the king's juftices, even the moft able and upright ^x. The feverity of which proceedings feems fo to have alarmed the fucceeding judges, that, through a fear of being faid to do wrong, hey hefitated at doing that which was right. As it was fo hazardous to alter a record, even from compaffionate motives, (as happened in Hengham's cafe, which in ftrictnefs was

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^w Judicia perverterunt, et in aliis erraverunt. (Matth. Weftm. A. D. 1289.)
^x Among the other judges, fir Ralph Hengham chief juftice of the king's bench is faid to have been fined 7000 marks, fir Adam Stratton chief baron of the exchequer 34000 marks, and Thomas Wayland chief juftice of the common pleas to have been attainted of felony, and to have abjured the realm, with a forfeiture of all his eftates; the whole amount of the forfeitures being upwards of 100000 marks, or 70000 pounds, (3 Pryn. Rec. 401, 402.) An incredible fum in thofe days, before paper credit was in ufe, and when the annual falary of a chief juftice was only fixty marks. (Clauf. 6 Edw. l. m. 6. Dugd. chron. fer. 26.) The charge againft fir Ralph Hengham (a very learned judge, to whom we are obliged for two excellent treatifes of practice) was only, according to a tradition that was current in Richard the third's time, (Yearbook. M. 2 Ric. III. 10.) his altering out of mere compaffion a fine, which was fet upon a very poor man, from 13 s. 4 d. to 6 s. 8 d. for which he was fined 800 marks; a more probable fum that 7000. It is true, the book calls the judge fo punifhed Ingham and not Hengham: but I find no judge of the name of Ingham in Dugdale's Series; and fir Edward Coke (r Inft. 255.) and fir Matthew Hale (1 P. C. 646.) underftand it to have been the chief juftice. And certainly his offences was nothing very atrocious or difgraceful: for though removed from the king's bench at this time (together with the reft of the judges) we find him about twelve years afterwards made chief juftice of the common pleas, (Pat. 29 Edw. I. m. 7. Dugd. chron. fer. 32.) in which office he continued till his death in 2 Edw. II. (Clauf. 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 juftice Southcote in the reign of queen Elizabeth; (3 Inft. 72. 4 Inft. 255.) that with this fine of chief juftice Hengham a clock-houfe was built at Weftminfter, and furnifhed with a clock, to be heard into Weftminfter-hall. Upon which ftory I fhallonly remark, that the firft introduction of clocks was not till an hundred years afterwards, about the end of the fourteenth century. (Eneyclopedie. tit. horloge.)
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certainly indefenfible) they refolved not to touch a record any more; but held that even palpable errors, when enrolled and the term at an end, were too facred to be rectified or called in queftion: and, becaufe Britton had forbidden all criminal and clandeftine alterations, to make a record fpeak a falfity, 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 juftice in eyre) to eftreat a larger fine than had been recorded by the clerk of the court below ^y; but, inftead of amending the clerk's erroneous record, they made a fecond enrollment of what the juftice had declared ore tenus; and left it to be fettled by pofterity in which of the two rolls that abfolute verity refides, which every record is faid to import in itfelf ^z. And, in the reign of Richard the fecond, there are inftances ^a of their refufing to amend the moft palpable errors and mif-entries, unlefs by the authority of parliament.

TO this real fullennefs, but affected timidity, of the judges fuch a narrownefs of thinking was added, that every flip (even of a fallable or a letter ^b) was now held to be fatal to the pleader, and overturned his client's caufe^c. If they durft not, or would not, fet right mere formal miftakes at any time upon equitable terms and conditions, they at leaft fhould have held, that trifling objections were at all times inadmiffible; and that more folid exceptions in point of form came too late when the merits had been tried. They might, through a decent degree of tendernefs, have excufed themfelves from amending in criminal, and efpecially in capital, cafes. They needed not have granted an amendment, where it would work in injuftice to either party; or where he could not be put in as good a condition, as if his adverfary

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^y 1 Hal. P. C. 647.
^z 1 Leon. 183. Co. Litt. 117. See pag. 331.
^a 1 Hal. P. C. 648.
^b Stat. 14 Edw. III. c. 6.
^c In thofe days it was ftrictly true, what Ruggle (in his ignoramus) has humoroufly applied to more modern pleadings; “innoftra lege unum comma evertit totum placitum.”
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had made no miftake. And, if it was feared that an amendment after trial might fubject the jury to an attaint, how eafy was it to make waiving the attaint the condition of allowing the amendment! And yet thefe were among the abfurd reafons alleged for never fuffering amendments at alleged for never fuffering amendments at all ^d!

THE precedents then fet were afterwards moft fcrupuloufly followed ^c, to the great obftruction of juftice, and ruin of the fuitors; who have formerly fuffered as much by thefe obftinate fcruples and literal ftrictnefs of the courts, as they could have done even by their iniquity. After verdicts and judgments upon the merits, they were frequently reverfed for flips of the pen or mif-fpellings: and juftice was perpetually intangled in a net of mere technical jargon. The legiflature hath therefore been forced to interpofe, by no lefs than twelve ftatutes, to remedy thefe opprobrious niceties: and it's endeavours have been of late of well feconded by judges of a more liberal caft, that this unfeemly degree of ftrictnefs is almoft intirely eradicated; and will probably in a few years be no more remembered, that the learning of effoins and defaults, or the counterpleas of voucher, are at prefent. But, to return to our writs of error.

IF a writ of error be brought after verdict, he that brings the writ, or that is plaintiff in error, muft in moft cafes find fubftantial pledges of profecution, or bail ^f: to prevent delays by frivolous pretences to appeal; and for fecuring payment of cofts and damages, which ae now payable by the vanquifhed party in all, except a few particular, inftances, by virtue of the feveral ftatutes, recited in the margin ^g.

A WAIT of error lies from the inferior courts of record in England into the king's bench ^h, and not into the common

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^d Styl. 207.
^e 8 Rep. 156. &c.
^f Stat. 3 Jac. I. c. 8. 13. Car. II. c. 2. 16 & 17 Car. II. c. 8.
^g 3 Hen. VII. c. 10. 13 Car. II. c. 2. 8 & 9 W. III. c. 11. 4 & 5 Ann. c. 16.
^h See chap. 4.
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pleas ⁱ. Alfo from the king's bench in Ireland to the king's bench in England. It likewife may be brought from the common pleas at Weftminfter to the king's bench; and then from the king's bench the caufe is removeable to the houfe of lords. From proceedings on the law fide of the exchequer a writ of error lies into the court of exchequer chamber before the lords. From proceedings on the law fide of the exchequer a writ of error lies into the court of exchequer chamber before the lord chancellor, lord treafurer, and the judges of the court of king's bench and common pleas: and from thence it lies to the houfe of peers. From proceedings in the king's bench, in debt, detinue, covenant, account, cafe, ejectment, or trefpafs, originally begun therein (except where the king is party) it lies to the exchequer chamber, before the juftices of the common pleas, and barons of the exchequer; and from thence alfo to the houfe of lords ^h: but where the proceedings in the king's bench are commenced by original writ, fued out of chancery, (which muft be for fome forcible injury, in which the king is fuppofed to be a party, in order to punifh the trefpafs committed in a criminal manner) this takes the cafe out of the general rule laid down by the ftatute; fo that the writ of error then lies, without any intermediate ftage of appeal, directly to the houfe of lords, the dernier refort for the ultimate decifion of every civil action. Each court of appeal, in their refpective ftages, may upon hearing the matter of law in which the error is affigned, reverfe or affirm the judgment of the inferior courts; but none of them are final, fave only the houfe of peers, to whofe judicial decifions all other tribunals muft therefore fubmit and conform their own. And thus much for reverfal or affirmance of judgments by writs in the nature of appeals.

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ⁱ Finch. L. 480. Dyer. 250.
^k Stat. 27 Eliz. c. 8.
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