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an exemption also lies from paying costs. Executors and administrators, when suing in the right of the deceased, shall pay none“: 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(5). And paupers, that is such as will swear themselves not worth five pounds, are, by statute ni Hen. VII. c. 12. to have original writs and subpoenas gratis, and counsel and attorney affigned 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

their costs: though that practice is now disused *. It seems [ 401 ] however agreed, that a pauper may recover costs, though

he pays none; for the counsel and clerks are bound to give
their labour to him, but not to his antagonists'. To prevent
also trifling and malicious actions, for words, for afsault and
battery, and for trespass, it is enacted by statutes 43 Eliz.
c. 6. (6) 21 Jac. I. c. 16. and 22 & 23 Car. II. c. 9. Ø 136.

u Cro. Jac. 229. 1 Vent. 92. Salk. 506.
wi Sid. 261. 7 Mod. 114. y 1 Equ. Cas. abr. 125.

(5) If executors fue as executors for money paid to their use after the testator's death, they fhall pay costs. 5 T. R. 234 When executors and administrators are defendants, they pay costs, like other persons. 2 Cromp. Prac. 476.

(6) The 43 Eliz. c. 6. enacts, that where the plaintiff in any per. fonal action, except for any title or interest in lands, or for a battery, recovers less than 40s, he shall have no more costs than damages, if the judge certifies that the debt or damages were under 40s. But if the judge does not grant such a certificate to the defendant, the plaintiff recovers full costs. Actions of trespass vi et armis, as for beating a dog, are within the statute. 37. R. 38. The certificate under this statute may be granted after the trial.

This certificate is to reftrain the costs ; but a certificate under the 22 & 23 Car. II. c. 9, is given in favour of the plaintiff to extend them froin a sum under 40 s. to full costs. If the defendant justifies the battery, the plaintiff thall have full costs

without

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 statute 4 & 5 W. & M. €. 23. and 8 & 9 W. III. c. 11. if the trespass were committed in hunting or sporting by an inferior tradesman, 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 40 s.

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.

z See pag. 214, 215.

without the judge's certificate, though the damages are under 40 s.; for it is held the admission of the defendant precludes the ne. cessity of the certificate. But a justification of the assault only will not be sufficient for this purpose ; for the judge must certify an actual battery. 3 T.R. 391. This certificate must be granted at the trial. 2 Cromp. Prac. 455.

In declarations for assault and battery, there is sometimes a count for tearing the plaintiff's cloaths ; and if this is stated as a subItantive injury, and the jury find it to have been such, and not to have happened in consequence of the beating, the plaintiff will be entitled to full colts (1 T. R. 656.); unless the judge should allift the defendant under the 43 Eliz. c. 6. So in a trespass upon land, the carrying away or asportavit of any independent personal property will entitle the plaintiff to full costs, unless the asportation, as by digging and carrying away turves, is a mode or qualification of the trespass upon the land. Doug. 780.

CHAPTER THE TWENTY-FIFTH.

: or PROCEEDINGS, IN THE

NATURE OF APPEALS.

DROCEEDINGS, in the nature of appeals from the i 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 a, that so the judgment following thereupon may be reversed; and this muit 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 alise; and seems to have been co-eval 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 allise, of finding a verdict according to their own personal knowlege, without the examination of

witnesses. And even here it extended no farther than to such ľ 403 7 instances, where the issue was joined upon the very point of

aslife (the heirship, diffeisin, &c.) and not on any collateral matter; as villenage, bastardy, or any other disputed fact. In these cases the alife was faid to be turned into an inquest or jury, (alifa vertitur in juratam ) or that the assise should be taken in rirodum juratae et non in modum alfae ; that is, that a Fikch. L. 484.

the

the issue should be tried by a common jury or inquest, and not by recognitors of atlife 6: and then I apprehend that no attaint lay against the inquest or jury that determined such collateral issue. 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, 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 inquefis, as well as afifes, 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", a writer contemporary with the statute; though sir Edward Cokef seems to hold a different opinion. Other subsequent statutes& introduced the same re. medy 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 assise, (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, ci- [ 404 ? ther at common law or by statute ; because that is determined by the grand allise, appealed to by the party himself, and now consisting of fixteen jurors',

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

o Bract, I. 4. fr. 1. c. 34. $ 2, 3, 4. tr. 3. 4. 17. 18. 5. c.4. $ 1,2. Flet. I. 5. 6. 22. $ 8. Co. Entr. 61.b. Booth. 213

c Bract. 4. 1, 34. 2. Fler. ibid.

d Yearb. 28 Edw. III 15. 17 Alf: pl. 15. Flet. 5. 92. 16.

e lo so 6.22. $ 8 & 16.

2 lott. 130. 237. & Stat. 1 Edw. III. st. 1. c. 6. 5 Edw. III. c. 7. 28 Edw. III. c. S.

See pag. 389. i Bract. 290. Fle. 5. 22. 7. Britt. 243. b. 12 Hen. VI. 6. Bro. alv. a. atteint, 42. i Rod Abr. 260.

that

that the oath of one jury of twelve men should be attainted or set aside by an equal number, nor by less indeed than double the formerk. If the matter in dispute be of forty pounds value in personals, or of forty shillings a year in lands and te. nements, 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 matter': 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 liberam 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 loft by reason of the unjuft verdict. But as the severity of this punishment had

it's usual effect, in preventing the law from being executed, ( 405 ) th

therefore by the statute ni 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 40 l value, a forfeiture of 20 / 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 com

k Bract. I. 4. tr. 5. 6. 4. § 1. Finch. L. 486. Flet. I. 5 6. 22. $ 7.

mon

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