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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 was proved, or that in trespass, the freehold or title to the land came chiefly in question.
CHAPTER XXV.—PROCEEDINGS IN THE NATURE OF
Kinds. These proceedings are of four kinds: writs of attaint, of deceit, of audita querela, and or error. 1. WRIT OF ATTAINT.
Where it Lies. This lies to inquire, whether a jury of twelve men gave a false verdict; so that the judgment following thereon may be reversed. This must be brought in the lifetime of the successful party, and of two at least of the jurors who gave it. This lies, at the cominon law, only on writs of assize, and upon the very point involved, and not upon collateral matter. This issue should be tried by a common jury. It did not lie, under the common law, in trespass, debt, or other actions personal, because these were always determined by common juries. Subsequently, however, by statute, an attaint could be sued upon inquests, and allowed in all pleas of trespass, and further extended to all pleas whatever, personal and real, except only the writ of right.
The Jury. The jury, who are to try this false verdict, must be twenty-four, and are called the grand jury. In suits involving forty or more pounds, or of forty shillings a year in land, each grand juror must have freehold to the annual value of twenty pounds. The same evidence is given to the grand jury, as to the petit jury.
Punishment of Jurors. If the grand jury found the verdict a false one, the judgment by the common law was, that the jurors should become forever 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 he had lost by reason of the unjust verdict. The severity of this punishment had the usual effect of preventing the execution of the law, and hence by statute, a more moderate punishment was inflicted on attainted jurors, viz.: perpetual infamy, and a forfeiture of money. 2. WRIT OF DECEIT.
When Used. This action, or one in the nature of it, may be brought in the court of common pleas, to reverse a judgment there had by frand or collusion in a real action, whereby lands have been recovered to the prejudice of him who has right.: 3. AUDITA QUERELA.
Defined. This 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 has given him a general release, or if the defendant has paid the debt to the plaintiff, without procuring satisfaction to be entered on the record. In these, and the like cases, wherein the defendant has good matter to plead, but has had no opportunity of pleading it, either at the beginning of the suit, or puis darrein continuance, which must be always before judgment, an audita querela lies, in the nature of a bill in equity, to be relieved against the oppression of the plaintiff.
Nature and Form of the Writ. It is a writ directed to the court, stating that the complaint of the defendant has 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 it, and having heard their allegations and proofs, to cause justiee to be done between them.
When it Lies. It also lies for bail, when judgment is obtained against them by scire 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, lest in any case there should be an oppressive defect of justice, where a party, who has a good defence, is too late to make it in the ordinary forms of law.
Almost Obsolete. But the indulgence now shown 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. 4. WRIT OF ERROR.
Method of Redress. The principal method of redress for erroneous judgments in the king's court of record, is by writ of error to some superior court of appeal.
When it Lies. A writ of error lies for some supposed mistake in the proceedings of a court of record. To amend errors in a court not of record, a writ of false judgment lies. The writ of error only lies upon matters of law arising upon the face of the proceedings; so that no evidence is required to substantiate or support it. The method of reversing an error in the determination of facts, is by a new trial to correct the mistakes of the former verdict.
Amendments. Formerly writs of error were sometimes brought on very trivial grounds, as mis-spellings and other mistakes of the clerks, all of which might be amended at common law, while all the proceedings were on paper, and hence considered as only in fieri, and therefore subject to the control of the courts. But when once the record was made up by the common law, no amendment could be permitted, unless within the very terms of 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. But now the courts have become more liberal, and will allow of amendments at any time, while the suit is pending, notwithstanding the record be made up, and the term be past. They consider the proceedings in fieri, till the judgment is given, and therefore 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 subsequent term.
Mistakes. Statute of Jeofails. 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 the proceedings, and acknowledges such error (jeo faile), he is at liberty by such statute to amend it. These statutes are numerous, and by them all trifling exceptions are so thoroughly guarded against, that writs of error cannot now be maintained, but for some material mistake assigned.
History of Amendments. The rise and history of amendments is curious. Formerly when all pleadings were ore tenus, if · a slip was perceived and objected to by the opposite party or the court, the pleader instantly acknowledged his error, and rectified his plea, which caused the length of dialogue reported in the ancient year books. The judgments were entered up by the clerks, and if any mis-entry was made, it was rectified by the minutes, or by the remembrance of the court itself. In the reign of Edward I, when the treatise of Britton was published, a check was given to the unwarrantable practice of some judges, who had made false entries on the rolls to cover their own misbehavior, and had taken upon them by amendments and erasures to falsify their own records. The king forbade such alterations, and inflicted heavy punishments upon justices, who had been addicted to this practice. The severity of these proceedings alarmed succeeding judges, who through fear of being charged with doing wrong, hesitated to do right. It was so hazardous to alter a record, that they resolved not to touch the records, but held that even palpable errors, when enrolled and the term at an end, were too sacred to be rectified or called into question. Even though the record was a falsity, they dared not judicially and publicly amend it to make it agreeable to truth. In the reign of Richard II, they refused to amend the most glaring errors and mis-entries, except by authority of parliament.
Refusal to Amend. Under this affected timidity of the judges, every slip, even of a syllable or letter, was now held to be fatal to the pleader, and overturned his client's cause. They might have excused themselves from amending in criminal, and especially in capital cases. They need not have granted an amendment, where it would work injustice to either party, or where he could not be put in as good a condition, as if his adversary had made no mistake. The precedents were strictly followed to the great obstruction of justice and the ruin of suitors, who suffered as much by the obstinacy and strictness of the courts, as they could have done even by their iniquity. Justice was entangled in a net of mere technical jargon.
Technical Objections Removed. The legislature has therefore been compelled to interfere by no less than twelve statutes to remedy those opprobrious niceties, in which it has been seconded by judges of a more liberal cast, and this unseemly degree of strictness is almost eradicated.
Bail must be Entered. If a writ of error he brought to reverse any judgment of an inferior court of record, where the damages are less than ten pounds; or if it is brought to reverse the judgment of any superior court after verdict, he who brings the writ, or who is plaintiff in error, must, except in some peculiar cases, find substantial pledges of prosecution or bail, to prevent delays by frivolous pretences to appeal, and for securing payment of costs and damages, which are now payable by the vanquished party in most cases.
The Courts of Appeal. A writ of error lies from the inferior courts of record in England into the king's bench, and not into the common pleas. Also from the king's bench in Ireland to the king's bench in England. It likewise may be brought from the common pleas at Westminster to the king's bench, and from the latter court to the house of lords. From proceedings on the law side of the exchequer, a writ of error lies into the court of the exchequer chamber before the lord chancellor, lord treasurer and the judges of the court of king's bench and common pleas, and from thence, it lies to the house of peers.
To the House of Lords. From proceedings in the king's bench in debt, detinue, covenant, account, case, ejectment or trespass, originally begun therein by bill, except where the king is party, it lies to the exchequer chamber, before the justices of the common pleas and barons of the exchequer, and from thence also to the house of lords, but where the proceedings in the king's bench do not commence therein by bill, but by original writ sued out of chancery, this takes the case out of the general rule, so that the writ of error then lies, without any intermediate state of appeal, directly to the house of lords, the ultimate resort of every civil action.
Court of Last Resort. All courts of appeal, in their respective stages, may upon hearing the matter of law, in which the error is assigned, reverse or affirm the judgment of the inferior courts, but none of them are final, save only the house of peers, to whose judicial decisions, all other tribunals must therefore submit and conform their own.