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Executors and addeceased, shall pay

an exemption alfo lies from paying costs. miniftrators, when fuing in the right of the none": for the ftatute 23 Hen. VIII. c. 15. doth not give cofts to defendants, unless where the action fuppofeth the contract to be made with, or the wrong to be done to, the plaintiff himself (5). And paupers, that is fuch as will swear themselves not worth five pounds, are, by ftatute 11 Hen. VII. c. 12. to have original writs and fubpoenas gratis, and counsel and attorney affigned them without fee; and are excufed from paying cofts, when plaintiffs, by the ftatute 23 Hen. VIII. c. 15. but fhall fuffer other punishment at the difcretion of the judges. And it was formerly ufual to give fuch paupers, if nonfuited, their election either to be whipped or pay their cofts: though that practice is now difufed. It seems [401] however agreed, that a pauper may recover cofts, though he pays none; for the counfel 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 affault and battery, and for trefpafs, it is enacted by statutes 43 Eliz. c. 6. (6) 21 Jac. I. c. 16. and 22 & 23 Car. II. c. 9. § 136. x Salk. 506.

u Cro. Jac. 229. 1 Vent. 92.
W I Sid. 261. 7 Mod. 114.

y 1 Equ. Caf. abr. 125.

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

(6) The 43 Eliz. c. 6. enacts, that where the plaintiff in any perfonal action, except for any title or intereft in lands, or for a battery, recovers lefs than 40s. he shall have no more cofts than damages, if the judge certifies that the debt or damages were under 40s. But if the judge does not grant fuch a certificate to the defendant, the plaintiff recovers full cofts. Actions of trespass vi et armis, as for beating a dog, are within the ftatute. 3 T. R. 38. The certificate under this ftatute may be granted after the trial.

This certificate is to reftrain the cofts; but a certificate under the 22 & 23 Car. II. c. 9, is given in favour of the plaintiff to extend them from a fum under 40s. to full cofts. If the defendant juftifies the battery, the plaintiff fhall have full costs

without

that, where the jury who try any of these actions shall give lefs damages than 40s, the plaintiff fhall be allowed no more cofts than damages, unlefs the judge before whom the cause is tried fhall certify under his hand on the back of the record, that an actual battery (and not an affault only) was proved, or that in trefpafs the freehold or title of the land came chiefly in queftion. Alfo by ftatute 4 & 5 W. & M. c. 23. and 8 & 9 W. III. c. 11. if the trefpafs were committed in hunting or sporting by an inferior tradesman, or if it appear to be wilfully and maliciously committed, the plaintiff fhall have full cofts, though his damages as affeffed 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 thefe proceedings; and then he has his remedy to reverse them by feveral writs in the nature of appeals, which we shall confider in the fucceeding chapter.

2 See pag. 214, 215.

without the judge's certificate, though the damages are under 40s.; for it is held the admiffion of the defendant precludes the neceffity of the certificate. But a juftification of the affault only will not be fufficient 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 affault and battery, there is fometimes a count for tearing the plaintiff's cloaths; and if this is ftated as a fubstantive injury, and the jury find it to have been fuch, and not to have happened in confequence of the beating, the plaintif will be entitled to full cofts (1 T. R. 656.); unless the judge fhould affift the defendant under the 43 Eliz. c. 6. So in a trefpafs upon land, the carrying away or afportavit of any independent personal property will entitle the plaintiff to full costs, unless the afportation, as by digging and carrying away turves, is a mode or qualification of the trefpafs upon the land. Doug. 780.

CHAPTER THE TWENTY-FIFTH.

OF PROCEEDINGS, IN THE
NATURE OF APPEALS.

PROC

ROCEEDINGS, 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 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 affife; and feems to have been co eval with that inftitution by king Henry II. at the inftance of his chief justice Glanvil: being probably meant as a check upon the vast power then repofed in the recognitors of affife, of finding a verdict according to their own perfonal knowlege, without the examination of witnesses. And even here it extended no farther than to fuch 403 inftances, where the iffue was joined upon the very point of affife (the heirship, diffeifin, &c.) and not on any collateral matter; as villenage, bastardy, or any other disputed fact. In these cafes the affife was faid to be turned into an inqueft or jury, (affifa vertitur in juratam) or that the affife should be taken in modum juratae et non in modum affifae; that is, that

a Fikch. L. 484.

the

the iffue fhould be tried by a common jury or inquest, and not by recognitors of affife: and then I apprehend that no attaint lay against the inqueft or jury that determined such collateral ifflue. Neither do I find any mention made by our antient writers, of such a process obtaining after the trial by inqueft 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 perfonal, by the old common law: because those were always determined by common inquefts or juries d. At length the ftatute of Weftm. 1. 3 Edw. I. c. 38. allowed an attaint to be sued upon inquefts, as well as affefes, which were taken upon any plea of land or of freehold. But this was at the king's difcretion, and is fo understood by the author of Fleta, a writer contemporary with the statute; though fir Edward Cokef feems to hold a different opinion. Other fubfequent ftatutes introduced the fame remedy in all pleas of trefpafs, and the ftatute 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 mife or iffue is joined on the mere right, and not on any collateral queftion. For, though the attaint feems to have been generally allowed in the reign of Henry the fecond 1, at the first introduction of the grand affise, (which at that time might confist of only twelve recognitors, in cafe they were all unanimous) yet subsequent authorities have holden, that no attaint lies on a falfe verdict given upon the mere right, ci- [ 404 ] ther at common law or by ftatute; because that is determined by the grand affife, appealed to by the party himself, and now confisting of fixteen jurors 1.

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

b Bract. 1. 4. tr. 1. c. 34. § 2, 3, 4 tr. 3. f. 17. tr. 5. c. 4. § 1, 2. Flet. l. 5. c. 22. § 8. Co. Entr. 61. b. Booth. 213.

c Bract. 4. I. 34. 2. Flet. ibid.
d Yearb. 28 Edw. III 15. 17 A

pl. 15. Flet. 5. 32. 16.
• 1. 5. c. 22. § 8 & 16.

f 2 Int. 130. 237.

g Stat. 1 Edw. III. ft. I. c. 6. 5 Edw. III. c. 7. 28 Edw. III. c. S. h See pag. 389.

i Bract. 200. Fle. 5. 22. 7. Britt. 243. b. 12 Hen. VI. 6. Bro. abr. & atteint, 42. 1 Roll Abr. 280.

that

[405]

that the oath of one jury of twelve men should be attainted or
fet afide by an equal number, nor by lefs indeed than double
the former. If the matter in difpute be of forty pounds va-
lue in perfonals, or of forty fhillings 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 whe-
ther or no they did right upon the evidence that appeared to
them, the law adjudged it the highest abfurdity to produce
any fubfequent proof upon fuch trial, and to condemn the
prior jurifdiction for not believing evidence which they ne-
ver knew. But those against whom it is brought are allow-
ed, 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 falfe one, the
judgment by the common law was, that the jurors should
lofe their liberam legem and become for ever infamous; fhould
forfeit their goods and the profits of their lands; fhould
themfelves be imprifoned, and their wives and children
thrown out of doors; fhould have their houfes rafed, their
trees extirpated, and their meadows ploughed; and that the
plaintiff fhould be restored to all that he loft by reafon of the
unjuft verdict. But as the feverity of this punishment had
it's ufual effect, in preventing the law from being executed,
therefore by the ftatute 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 40 value, a forfeiture of 20 apiece
by the jurors; or, if under 40, then 5 apiece; to be di-
vided between the king and the party injured. So that a man
may now bring an attaint either upon the statute or at com-
I Finch. L. 486.

k Bract. 1. 4. tr. 5. c. 4. § 1. Flet. . 5. 22. § 7.

mon

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