vet subsequent authorities have holden, that no attaint lies on a false ver dict given upon the mere right, either at common law or by statute; be cause that is determined by the grand assise, appealed to by the party him. self, and now consisting of sixteen jurors (i). The jury who are to try this false verdict must be twenty-four, and are called the grand jury; for the law wills not 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 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 [*404] 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 (1); because the petit jury may have formed their verdict upon evidence of their own knowledge, 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 became 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 razed, 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 its usual effect, in preventing the law from being executed, therefore by the statute 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 401. value, a forfeiture of 201. apiece by the jurors, or, if under 401., then 51. 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 common law, at his election (m); 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 (n). 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 proceed ing from whence our attaint may be derived.-If, upon a lawful [405] trial before a superior "tribunal, the jury were found to have given a false verdict, they were fined, and rendered infamous for the fu ture (o). II. The writ of deceit, or action on the case in nature of it, may be (i) Bract. 290. Flet. 5. 22. 7. Britt. 242. b. 12 Hen. VI. 6 Bro. Abr. t. atteint, 42. 1 Roll. Abr. 289. (n) Cro. Eliz. 309. Oro. Jac. 90. (o)" Si tamen evidenti argumento falsum jurasse convincantur (id quod superius judicium cognoscere testabiles." Stiemhook de jure Goth. l. 1, c. 4. (k) Bract. 1. 4, tr. 5, c. 4, 1. Flet. l. 5, c. 22, ◊ 7. debet) muletantur in bonis, de caetero perjuriet v (1) Finch, L. 486. (m) 3 Inst. 164. (89) See Hov. n. (89) at the end of the Vol. B. III. (90) [bid. (90) B. II. 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 chapter (p) (2). 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 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 puis darrein continuance, which, as was shewn in a former chapter (q), must always be before judgment), an audita querela lies, in the nature of a bill in equity, to be relieved against the oppression of the plaintiff. It is a writ directed to the court, stating that the complaint of the defendant hath been heard, audita querela defendentis, and then setting 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 cause justice to be done between them (r). It also lies for bail, when judgment is obtained against them. by scire facias to answer the debt of their principal, and it happens atterwards 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 (s); which is a writ of a most remedial nature, and seems to have been invented, lest in any case there should be an op- [*406] pressive 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 (t), has almost rendered useless the writ of audita querela, and driven it quite out of practice (3). (p) See page 165. (g) See page 310. (r) Finch, L. 488. F. N. B. 102. (2) By stat. 9 Geo. 1V. c. 14, sect. 6, no action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, liability, trade, or dealings, of any other person, to the intent or purpose that such other person may obtain credit, money, or goods unless such representation or assurance be made in writing signed by the party to be charged therewith. Statute not to take effect till the 1st of January, 1829. (3) Ch. J. Eyre says, "I take it to be the modern practice to interpose in a summary way, in all cases where the party would be entitled to relief on an audita querela." 1 Bos. & Pul. 428. In general the courts will not put the defendant to the trouble and expense of an audita querela, but will relieve him in a summary way on motion, 4 Burr. 2287; but where the ground of his relief is a release, hen there is some doubt about the execuion, or some matter of fact which cannot be clearly ascertained by affidavit, and therefore (s) 1 Roll. Abr. 308. proper to be tried, the court has driven the defendant to his audita querela. 1 Salk. 93. 264. 1 Ld. Raym. 439. 12 Mod. 240. 2 Ld. Raym. 1295. 2 Stra. 1198. See also, 5 Taunt. 561. 2 Marsh. 37. And indeed the indulgence which of late has been shewn by courts of law in granting summary relief upon motion in most cases of evident oppression, for which the only remedy was formerly by audita querela, has occasioned this remedy now to be very rarely restored to. An audita querela may be brought in the same court in which the record on which it is founded remains, or returnable in the same court; and yet the defendant may have an audita querela out of chancery, re turnable in the common pleas or king's bench, and so it is sometimes judicial, sometimes ori ginal. F. N. B. 239, 240. B. 7th edit. An audita querela is no supersedeas; and there fore execution may be taken out, unless a su persedeas be sued forth; and if an audita querela be founded on a deed, it must be proved in court before a supersedeas shall be granted. 1 Salk. 92. 1 Sid. 351. But an IV. But, fourthly, the principal method of redress for erroneous judg ments in the king's court of record, is by writ of error to some superior court of appeal. A writ of error (u) lies for some supposed mistake in the proceedings o court of record; for to amend errors in a base court, not of record, a writ of false judgment lies (v). 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 facts, but by an attaint, or a new trial, to correct the mistakes of the former verdict (4), (5). Formerly, the suitors were much perplexed by writs of error brought upon very slight and trivial grounds, as mis-spellings and other mistakes of the clerks, all which might be amended at the common law, while all the proceedings were in paper (w); for they were then considered as only in fieri, and therefore subject 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 terms in which the judicial act so recorded was done : for during the term the record is in the breast of the court; but afterwards it admitted of no alteration (x). But now the courts are become more liberal; and, where justice requires it, will allow of amendments at any time while the suit is depending, notwithstanding the record be made up, and the term be past. For they at present consider the proceedings as in fieri, till judgment is given; and therefore that, till then, they have power to permit amendments (u) Append. No. III. 46. () Finch, L. 484. audita querela was lately brought in the case of Nathan v. Giles, 7 Taunt. 557. 1 Marsh. 226. S. C.; a d it was there held that a writ of audita querela need not be moved for, but is a proceeding of common right and ex debito justiciae. However the supersedeas found ed thereon must be moved for. If the plaintiff be nonsuited, he may have a new audita querela, but he shall not have a supersedeas. F. N. B 104. O. 9th edit. In Nathan v. Giles, the court declared their opinion, that there can be no motion in arrest of judgment on an audita querela. 2 Saund. 148. a. f.t (4) A writ of error lies for some error or defect in substance, that is not aided, amendable, or cured at common law, or by some of the statutes of jeofails. And it lies to the same court in which the judgment was given, if it be erroneous in matter of fact only; for error in fact is not the error of the judges, and reversing it is not reversing their own judg ment as where an infant appeared by attorney instead of guardian, or the plaintiff or defendant at the time of commencing the suit was a married woman. If a judgment in the king's bench be erroneous in matter of fact only, and not in point of law, it may be reversed in the same court by writ of error coram nobis, or quae coram nobis resident; so called from its being founded on the record and process, which are stated in the writ to remain in the court of the lord the king, be (†) In New-York the Supreme Court may compel a witness to testify to a matter to be (w) 4 Burr. 1099. (z) Co. Litt. 260. fore the king himself. But if the error be in the judgment itself, and not in the process, a writ of error does not lie in the same court upon such judgment. 1 Roll. Ab. 746. In the common pleas, the record and process being stated to remain before the king's justices, the writ is called a writ of error coram vobis, or quae coram vobis resident. On a judgment against several parties, the writ of error must be brought in all their names, 6 Co. 25. 3 Mod. 134. 5 ib. 16. 1 Ld. Raym. 244. 2 ib. 1532. 3 Burr. 1792. 2 T. R. 737; but if one or more die, the survivors may bring the writ of error. Palm. 151. 1 Stra. 234. Or if it be brought in the names of several, and one or more refuse to appear and assign errors, they must be summoned, and severed, and then the rest may proceed alone. Yelv. 4. Cro. Eliz. 892. 6 Mod. 40. 1 Stra. 234. Cas. Temp Hardw. 135, 6. (5) But this writ cannot be brought after twenty years, unless in case of personal disability from infancy, covertures, persons of unsound mind, prisoners, or beyond seas; these respectively ceasing, the writ must be brought within five years afterwards. See stat. 10 & 11 W. III. c. 14. In New-York the writ must be brought with in two years, unless the party is under disabi lity, and then within two years after the remo val of the disability, provided the whole time shall not exceed five years. 2 R. S. 594, 422, &c. used on motion before the count. 2R S. 554 $24, &c. by the common law: but when judgment is once given and en. [*407] rolled, no amendment is permitted in any subsequent term (y). Mistakes are also effectually helped by the statutes of amendment and jeofails so called, because when a pleader perceives any slip in the form of his proceedings, and acknowledges such error (jeo faile), he is at liberty by those statutes to amend it; which amendment is seldom actually made but the benefit of the acts is attained by the court's overlooking the exception (2). These statutes are many in number, and the provisions in them too minute to be here taken notice of, otherwise than by referring to the statutes themselves (a);91 by which all trifling exceptions are so thoroughly guarded against, that writs of error cannot now be maintained, but for some material mistake assigned (6). This is at present the general doctrine of amendments; and its rise and history are somewhat curious. In the early ages of our jurisprudence, when all pleadings were ore tenus, if a slip was preceived and objected to by the opposite party or the court, the pleader instantly acknowledged his error and rectified his plea; which gave occasion to that length of dialogue reported in the ancient year-books. So liberal were then the sentiments of the crown as well as the judges, that in the statute of Wales, made at Rothelan, 12 Edw. I., the pleadings are directed to be carried on in that principality, “sine calumpnia verborum, non observata illa dura consuetudine, qui cadit a syllaba cadit a tota causa." The judgments were entered up immediately by the clerks and officers of the court; and if any misentry was made, it was rectified by the minutes, or by the remembrance of the court itself. When the treatise by Britton was published, in the name and by authority of the king (probably about the 13 Edw. I. because the last statutes therein referred to, are those of Winchester and Westminster the second), a check seems intended to be given to the un- [*408] warrantable practices of some judges, who had made false entries on the rolls to cover their own misbehaviour, and had taken upon them by amendments and rasures to falsify their own records. The king therefore declares (b), that "although we have granted to our justices to make record of pleas pleaded before them, yet we will not that their own record shall be a warranty for their own wrong, nor that they may rase 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 surreptitiously or erroneously made up, to stifle or pervert the truth, should not (y) Stat. 11 Hen. IV. c. 3. (z) Stra. 1011. (a) Stat. 14 Edw. III. c. 6. 9 Hen. V. c. 4. 4 Hen. VI. c. 3. 8 Hen. VI. c. 12 & 15. 32 Hen. Vill. c. 30. 18 Eliz. c. 14. 21 Jac. I. c. 13. 16 & (6) And now, by stat. 9 Geo. IV. c. 15, every court of record holding plea in civil actions, any judge sitting at Nisi Prius, and any court of oyer and terminer and general gaol delive ry in England, &c. and Ireland, if any such court or judge shall see fit to do so, may cause the record on which any trial may be pending before any such judge or court, in any civil action, or in any indictment or information for any misdemeanor, when any variance shall sppear between any matter in writing or in pris produced in evidence, and the recital or setting forth thereof upon the record, wherein 1: Car. II. c. 8. (styled in 1 Ventr. 100. an omnipotent act), 4 & 5 Ann. c. 16. 9 Ann. c. 20. 5 Geo. L c. 13. (6) Brit. proem. 2, 3. the trial is pending, to be forthwith amended in such particular by some officer of the court, on payment of such costs, if any, to the ether party as such judge or court shall think rea sonable, and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postea, and returned together with the record; and thereupon the papers, rolls, and other records of the court from which such record issued, shall be awarded accordingly. As to New-York, see 2 R. S. 424. (91) Bee Hov n (91) at the end of the Vol. B. III. be a sanction for error; and that a record, originally made up according to the truth of the case, should not afterwards by any private rasure or amendment be altered to any sinister purpose. But when afterwards king Edward, on his return from his French dominions in the seventeenth year of his reign, after upwards of three years' absence, found it necessary (or convenient, in order to replenish his exche quer) to prosecute his judges for their corruption and other mal-practices, the perversion of judgments and other manifold errors (c), occasioned by their erasing and altering records, were among the causes assigned for the heavy punishments inflicted upon almost all the king's justices, [*409] even the most able and upright (d). The severity of which "proceedings seems to have alarmed the succeeding judges, that through a fear of being said to do wrong, they hesitated at doing what was right. As it was so hazardous to alter a record duly made up, even from compassionate motives (as happened in Hengham's case, which in strictness was certainly indefensible), they resolved not to touch a record any more; but held that even palpable errors, when enrolled and the term at an end, were too sacred to be rectified or called in question: and, because Britton had forbidden all criminal and clandestine alterations, to make a record speak a falsity, 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 justice in eyre) to estreat a larger fine than had been recorded by the clerk of the court below (e); but instead of amending the clerk's erroneous record, they made a second enrolment of what the justice had declared ore tenus ; and left it to be settled by posterity in which of the two rolls that absolute verity resides, which every record is said to import in itself (f). And, in the reign of Richard the Second, there are instances (g) of their refusing to amend the most palpable errors and mis-entries, unless by the authority of parliament. To this real sullenness, but affected timidity, of the judges, such a narrowness of thinking was added, that every slip (even of a syllable or letter) (h) was now held to be fatal to the pleader, and overturned his (e) Judicia perverterunt, et in aliis erraverunt. (Matth. West. A. D. 1289.) (d) Among the other judges, sir Ralph Hengham, chief justice of the king's bench, is said to have been fined 7000 marks: sir Adam Stratton, chief baron of the exchequer, 34,000 marks; and Thomas Wayland, chief justice of the common pleas, to have been attainted of felony, and to have abjured the realm, with a forfeiture of all his estates: the whole amount of the forfeitures being upwards of 100,000 marks, or 70,000 pounds. (3 Pryn. Rec. 401, 402.) An incredible sum in those days, before paper credit was in use, and when the annual salary of a chief justice was only sixty marks. (Claus. 6 Edw. I. m. 6. Dugd. chron. ser. 26.) The charge against sir Ralph Hengham (a very learned judge, to whom we are obliged for two excellent treatises of practice) was only, according to a tradition that was current in Richard the Third's time, (year-book, M. 2 Ric. III. 10.) his altering, out of mere compas sion, a fine which was set upon a very poor man, from 18s. 4d. to 6s. 8d. for which he was fined 800 marks; a more probable sun than 7000. It is true, the book calls the judge so punished Ingham and not Hengham: but I find no judge of the name of Ingham in Dugdale's Series; and sir Edward Coke (4 Inst. 955.) and sir Matthew Hale (1 P. C. 646.) understand it to have been the chief justice. And certain.y his offence (whatever it was) was nothing very atrocious or disgraceful: for though removed (e) 1 Hal. P. C. 647. (f) 1 Leon. 183. Co Litt 117. See page 331 (g) Hal. P. C. 648. (h) Stat. 14 Edw. III. . 6. |