mon law, at his election ; and in both of them may reverse the former judgment. But the practice of setting aside verdicts upon motion, and granting new trials, has fo fuperfeded the use of both forts of attaints, that I have obferved very few inftances of an attaint in our books, later than the fixteenth 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 conclufive. Yet there was a proceeding, from whence our attaint may be derived. —If, upon a lawful trial before a fuperior tribunal, the jury were found to have given a falfe 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 collufion 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 obferved 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 [406] upon good matter of difcharge, which has happened fince 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 fatisfaction to be entered on the record. In these 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 fuit, or puis darrein continuance, which, as was fhewn in a former chapter 9, muft always be before judgment) an audita querela lies, in the nature of a bill in equity, to be relieved against the oppreffion

m 3 Inft. 164.

n Cro. Eliz. 309. Cro Jac. 90.

“Si tamen evidenti argumento falfum juraffe convincantur (id quod fuperiusjudicium cognofceredibet) mul&an

"tur in bonis, de cactero perjuri et intef
"tabiles." Stiernhook de jure Goth.
1. 1. c. 4.

P See pag. 165.

q See pag. 310.

of

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'. It alfo lies for bail, when judgment is obtained against them by feire 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; which is a writ of a most remedial nature, and seems to have been invented, left in any cafe there should be an oppreflive 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 fhewn by the courts in granting a fummary relief upon motion, in cafes of fuch evident oppreffion', has almoft rendered useless the writ of audita querela, and driven it quite out of practice.

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

[407] A WRIT of error lies for fome fuppofed 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". The writ of error only lies upon matter of law arifing upon the face of the proceedings; fo that no evidence is required to fubftantiate or fupport it: there being no method of reverfing an error in the determination of facts, but by an attaint, or a new trial, to correct the mistakes of the former verdict.

FORMERLY the fuitors were much perplexed by writs of error brought upon very flight and trivial grounds, as mif

Finch. L. 488. F. N. B. 102.

fi Roll. Abr. 308.

Lord Raym, 439

7

t Append N° III. § 6.
u Finch. L. 484.

fpellings

spellings and other mistakes of the clerks, all which might be amended at the common law, while all the proceedings were in paper"; 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 permitted, unless 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. 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, notwithstanding the record be made up, and the term be past. 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 but when judgment is once given and enrolled, no amendment is permitted in any fubfequent term y. Miftakes are also effectually helped by the ftatutes of amendment and jefails: fo called, because 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 excep- [ 408 ] tion. These ftatutes are many in number, and the provifions in them too minute to be here taken notice of, otherwise than by referring to the ftatutes themfelves; by which all trifling exceptions are fo thoroughly guarded against, that writs of error cannot now be maintained, but for fome material miftake affigned.

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 opposite party or the court, the pleader instantly 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 mis-entry was made, it was rectified by the minutes, or by the remembrance of the court itself.

WHEN the treatife by Britton was published, in the name and by authority of the king, (probably about the 13 Edw.I. because the laft ftatutes therein referred to are thofe of Winchester and Westminster 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 that although we have granted to our justices to [409] "make record of pleas pleaded before them, yet we will not "that their own record should be a warranty for their own "wrong, nor that they may rafe their rolls, nor amend them, "nor record them contrary to their original enrolment." The whole of which, taken together, amounts to this, that a record furreptitiously or erroneously made up, to stifle 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 purpose.

BUT when afterwards king Edward, on his return from his French dominions in the feventeenth year of his reign, after upwards of three years abfence, found it necessary (or convenient, in order to replenish his exchequer) to profecute

Brit. fr.em. 2, 3.

409 his judges for their corruption and other mal-practices, the perverfion of judgments and other manifold errors, occafioned by their erafing and altering records, were among the caufes aligned for the heavy punishments inflicted upon almost all the king's juftices, even the most able and upright. The severity of which proceedings feems fo to have alarmed the fucceeding judges, that, through a fear of being faid to [410] do wrong, they hefitated at doing what was right. As it was fo hazardous to alter a record duly made up, even from compaffionate motives, (as happened in Hengham's cafe,