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CHAPTER THE TWENTY-FIFTH,

Of P R O C E E D I N G S, In The

NATURE OP 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: which lieth to inquire whether a jury of twelve men gave a false verdict *; 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 ajfise; 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 affise, of finding a verdict according to their own personal knowlege, without the examination os witnesses. And even here it extended no farther than to such r 40, i instances, where the issue was joined upon the very point of assise (the heirship, disseisin, CSV.) and not on any collateral matter; as villenage, bastardy, or any other disputed fact. In these cases the njjise was said to be turned into an inquejl or jury, (ajjisa vertitur injuratam) or that the assise should be taken in medumjuratae et non in modum ajpsae; that is, that

a Fihch. L. 484.

the the'issue should be tried by a common jury or inquest, and not by recognitors of astise b: and then I apprehend that nd attaint lay against the inquest or jury that determined such collateral issuec. Neither do I find any mention made by our antient writers, of such a process obtaining after the trial by inquest or jury, in the old Norman or feodal actions prosecuted by writ of entry. Nor did any attaint lie in trespass f debt, or other action personal, by the old common law: because those were always determined by common inquests or juriesd. At length the statute of Wcilm. 1. 3 Edw. I. c. 38. allowed an attaint to be sued upon inquefis, as well as q/fifes, 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 c, a writer contemporary with the statute; though fir Edward Coke f seems to hold a different opinion. Other subsequent statutes5 introduced the fame remedy in all pleas of trespass, and the statute 34 Edw. HI. c. 7. extended it to all pleas whatsoever, personal as well as real; except only the writ of right, in such cases where ths mlse 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 assise, (which at that time might consist of only twelve recognitors, in cafe they were all unanimous) yet subsequent authorities have holden, that no attaint lies on a false verdict given upon the mere right, ci- s 404 "] fher at common law or by statute; because that is determined by the grand assise, appealed to by the party himself, and now consisting of sixteen jurors'.

The jury who are to try this false verdict must be twentyfour, and are called the grand jury; for the law wills not

b Bract. /. 4. tr. I. c. 34. § 3, 7, lj Intl. Ijo. 137.

4, ir. J. r. 17. tr. 5. s.4. § 1, a. g Stat. 1 Edw. Ill; st. 1. c. 6.

Flet. /. 5. t. sa. § 8. Co. Entr. 61. *. 5 Edw. III. c. 7. 28 tJw III. c. S.

Sooth.213. *> Seepag. 389.

c Bract. 4. 1. 34. a. Flet. Mit. i Bract. 350. Fl»-. 5. 21. 7. Rritt.

i Yearb. 28 Edw. Ill 15. 17 /Iff. 24.3- b. 12 Hen. VI. 6. Bro. air. t.

ft. 15. Flet. 5. la, 16. sttrist. 42. 1 Rail Air. 2S0.

•:. 5. <-. 22. $ 8 & 16.

that

that the oath of one jury of twelve men should be attainted or set alkie 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 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 matter1: because the petit jury may have formed their verdict upon evidence of their own knowlege, 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 itberatn legem and become for ever 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 rased, 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 it's usual effect, in preventing the law from being executed, r . 1 therefore by the statute 11 Hen. VII. c. 24. revived by 23 Hen. VIII. c. 3. and made perpetual by 13 Eliz. c. 2j. 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 40 / value, a forfeiture of 20 / apiece by the jurors; or, if under 40 /, then 5 / 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 com

k Bi ict. /. 4. tr. 5, c. 4. ^ 1. • Finch, L. 4S6.

Ttet. I. 5 Ml. § 7.

moo

mon law, at his election1"; 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". 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 °.

II. The writ of deceit, or action on the cafe 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 chapterp.

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 [ 4°6" J 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 puts darrein continuance, which, as was shewn in a former chapter \ must always be before judgment) an audita querela lies, in the nature of a bill in equity, to be relieved against the oppression

I" 3 Inst. 164. "tur in Icnis, dt catten ftrjuri tt ir.ttj

» Cro. Ellz. 309. Cro Jac. 90. "latilei." Stiernhook. dt jurt Cite.

0 *' Si tamen tvidenti argununta sal- /. I. f. 4.

** jiimjuraJstconi'inrantur( id quod Just- P See pag. 165.

* rwijudicium agmsarUllli) muISljn- 1 See jiaj. 31a.

of

of the plaintiff. It is a writ directed to the court, stating that the complaint of the defendant hath been heard, audits querela iefendentis, and then setting out the matter of the complaint, it at length enjoins the court to call the panics before them, and, having heard their allegations and proofs, to cause justice to be done between them\ It also lies for bail, when judgment is obtained against them by Jcirefacias 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 tliis special matter, and therefore they (hall have redress by audita querela(; which is a writ of a mod remedial nature, and seems to have been invented, lest in any cafe 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 the indulgence now shewn by the courts in granting a summary relief upon motion, in cases of such evident oppression', has almost rendered useless the writ of audita querela, and driven it quite out of practice.

IV. But, fourthly, the principal method of redrese for erroneous judgments in the king's courts of record, is by virit of error to some superior court, of appeal.

£ 407 "] A Writ of error' 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 TM. 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 fuels, but by an attaint, or a new trial, to correct die mistakes of the former verdict.

Formerly the suitors were much perplexed by writs of error brought upon very flight and trivial grounds, as mis

» Finch. L. 4S8. F. N. B, roi. t Append N» III. § 6.

f 1 Roll. Abr. 508. u Finch. L. 484.

• Lord Raym. 439.

7 spelling!

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