CHAPTER THE TWENTY-FIFTH.

OF PROCEEDINGS, IN THE NATURE OF APPEALS.

Proceedings, in the nature of appeals from the 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.8*

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 7 writs of assise; and seems to have been coeval 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 assise, 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 instances, where the issue was joined upon the very point of assise (the heirship, disseisin, etc.) and not on any collateral matter; as villenage, bastardy, or any other disputed fact. In these cases the assise was said to be turned into an inquest or jury (assisa vertitur in juratam), or that the assise should be taken in modum juratæ et non in modum assisæ; that is, that the issue should be tried by a common jury or inquest, and not by recognitors of assise: and then I apprehend that no attaint lay against the inquest or jury that determined such collateral issue.c† Neither do I find any

a Finch. L. 484.

b Bract. l. 4. tr. 1. c. 34. 2, 3, 4. tr. 3. c. 17. tr. 5. c. 4. § 1, 2 Flet. 1.5 c. 22. 8. Co. Entr. 61. b. Booth. 213.

c Bract. 4. 1. 34. 2. Flet. ibid.

8 Previously, "three."

The enumeration commented upon, 1 Bibb, 497.

† Cited, 48 N. H. 373.

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 [403] prosecuted by writ of entry. Nor indeed 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 inquests, as well as assises, 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 Coke' seems to hold a different opinion. Other subsequent statutes & introduced the same remedy 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, at the first introduction of the grand assise (which at that time might consist of only twelve recognitors), yet subsequent authorities have holden, that no attaint lies on a false verdict given upon the mere right, either at common law or by statute; because that is 7 d Yearb. 28 Edw. III. 15. 17 Ass. pl. 15. Flet. 5. 22. 16.

e l. 5. c. 22. 8 & 16.

f 2 Inst. 130. 237.

g Stat. 1 Edw. III. st. 1. c. 6. 5 Edw. III. c. 7. 28 Edw. III. c. 8. h See pag. 389.

7 Previously, "verdicts in action for such personal injuries as did not amount to trespass. For in real wrongs the party injured had redress by writ of right; but, after verdict against him in personal suits, he had no other remedy: and it did not lie in actions of trespass, for a very extraordinary reason; because, if the verdict was set aside, the king would lose his fine. But by statute Westm. 1. 3 Edw. I. c. 38. it was given in all pleas of land, franchise, or freehold and, by several subsequent statutes, in the reigns of Edward III.c and his grandson,d it was allowed in almost every action, except in a writ of right; for there no attaint lay, either by common law or statute, because it was," with notes: b Bro. Abr. t. atteint. 42. c Stat. 1 Edw. III. c. 6. 5 Edw. III. c. 7. 28 Edw. III. c. 8. 34 Edw. III. c. 7. d Stat. 9 Ric. II. c. 3.

*Cited, 48 N. H. 373.

determined by the grand assise, 'appealed to by the party himself, and now' consisting of sixteen jurors.1

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. 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 [404] 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 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 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 rased, their trees extirpated, 8 and their meadows ploughed; and that the plaintiffs i Bract. 290. Flet. 5. 22. 7. Britt. 243. b. 12 Hen. VI. S. Bro, abr. t. atteint. 42. 1 Roll. Abr. 280.

k Bracton. l. 4. tr. 5. c. 4. § 1. Flet. l. 5. c. 22. § 7.

1 Finch. L. 486.

8

8 Previous editions inserted here, "and because very terrible was the judgment which the common law inflicted upon then,” and divided the judgment into nine subdivisions, arranged slightly different from the text.

8 Previously, "3. That their lands and tenements should be seised into the king's hands. 4. That."

8 Previously, "rooted up."

8 Previously, "9. That the party." *Cited, 59 Pa. St. 116.

should be restored to all that he lost by reason of the unjust verdict. But as the severity of this punishment had it's 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 407. 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; 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 not observed any instance of an attaint in our books, 5 much later than the sixteenth 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 conclusive. Yet there was a proceeding, from whence our attaint may be derived. If, upon a lawful trial before a superior tribunal, [405] they were found to have given a false verdict, they were fined, and rendered infamous for the future."

II. The writ of deceit, or action on the case in nature of it, may be 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 m 3 Inst. 164.

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

o "Si tamen evidenti argumento falsum jurasse convincantur (id quod superius judicium cognoscere debet) mulctantur in bonis, de cætero perjuri et intestabiles." Stiernhook de jure Goth. l. 1 c. 4. [Formerly in text.]

8 Previously, "they had."

*Cited, 64 Cal. 604; 12 N. H. 175.

have been recovered to the prejudice of him that hath right. But of this enough hath been observed in a former chapter.ps

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 natter 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 entering satisfaction 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, 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. 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 then, have no opportunity to plead this special matter, and therefore they shall have redress by audita querp See pag. 166.

q See pag. 310.

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

8 Previously, "II."

Ref. Smith (N. H.) 120, n.

+-+ Quoted, 1 Aiken, 323; 15 Am. Dec. 694; partly, 2 Hill (S. C.) 300; 27 Am. Dec. 383. Cited, 16 Ala. 815; 20 Ala. 424; 24 Me. 306; 32 Md. 272; 12 N. H. 71; 2 Chip. D. 15.