order to strengthen a creditor's security, for the debtor to execute a warrant of attorney to some attorney named by the creditor, empowering him to confess a judgment by either of the ways, nihil dicit, cognovit actionem, or non sum informatus, in an action of debt to be brought by the creditor against the debtor for the specific sum due: which judgment, when confessed, is absolutely complete and binding, if docquetted, that is, abstracted and entered in a book, according to 4 & 5 Wm. & M. c. 20 (i). But where damages are to be recovered, a jury must be called in to assess them, under a writ of inquiry; in the execution of which the sheriff sits as judge, and tries by a jury, subject to nearly the same law and conditions as the trial by jury at nisi prius (j). When their verdict is given, which must assess some damages, the sheriff returns the inquisition, which is entered upon the roll, in manner of a postea; and thereupon it is considered that the plaintiff do recover the exact sum so assessed (k). In like manner, when a demurrer is determined for the plaintiff upon an action wherein damages are recovered, the judgment is also incomplete, without the aid of a writ of inquiry. Final judgments are such as put an end to the action, by declaring that the plaintiff has either entitled himself or has not, to recover the remedy he sues for ().

(i) Judgments must now be docketted according to the directions of 1 & 2 Vict. c. 110, and 2 & 3 Vict. c. 11, post, pp. 463 and 464. Judgments already docketted under 4 & 5 Wm. and M. c. 20, are not to affect any lands after 1st of August, 1841, unless registered according to the provisions of those acts.

(j) See now 3 & 4 Wm. 4, c. 42, ss. 16. 18. and 19, 28, 29, and 30, ante, the first note to the last chapter.

(k) By 1 & 2 Vict. c. 110, s. 9, no warrant of attorney to confess judgment in any personal action or cognovit actionem, given by any person shall be of any force, unless there shall be present some attorney on behalf of such person expressly named by him, and attending at his request to inform him of the nature and effect of such warrant or cognovit, before the same is executed; who is to subscribe his name as a witness to the execution, and thereby declare himself to be the attorney of the person executing the same, and state that he subscribes as such attorney.

(1) By 1 & 2 Vict. c. 110, s. 13, it is enacted, that any judgment then entered up or to be thereafter entered up, against any person in any of the courts at Westminster, shall operate as a charge upon all lands, and real estate, and on copyhold hereditaments, of which such person shall, at the time of entering up such judgment or afterwards, be seised, possessed, or entitled for any estate or interest at law or in equity, whether in possession, reversion, remainder, or expectancy, or over which such person shall, at the time of entering up such judgment, or, at any time afterwards, have any disposing power, which he might without the assent of any person exercise for his own benefit, and shall be binding as against the person against whom judgment shall be so entered up, and against all persons claiming under him after such judgment, and shall also be binding as against the issue of his body and all other persons whom he might, without

To judgments costs are a necessary appendage, it being now of costs. as well the maxim of ours as of the civil law, that he who

the assent of any other person cut off and debar from any remainder, reversion, or other interest in or out of any of the said lands, and that every judgment creditor shall have such and the same remedies in a court of equity against the hereditaments so charged, as he would be entitled to in case the person against whom such judgment shall have been so entered up, had power to charge the same hereditaments, and had by writing under his hand agreed to charge the same, with the amount of such judgment, debt, and interest thereon. But no judgment creditor shall be entitled to proceed in equity to obtain the benefit of such charge, until after one year from entering up judgment, or in cases of judgments then entered up, or to be entered up before 1st October, 1838, until 1st October 1839, nor shall such charge operate to give the judgment creditor any preference in case of the bankruptcy of the person against whom judgment shall have been entered up, unless such judgment shall have been entered up one year before the bankruptcy. As regards purchasers, mortgagees, or creditors, who shall have become such before October, 1838, such judgment shall not affect lands, &c. otherwise than as they would have been affected thereby if the act had not passed. And nothing in the act is to alter or affect any doctrine of courts of equity whereby protection is given to purchasers for valuable consideration without notice. By s. 14, if any person against whom any judgment shall have been entered up in any of the courts at Westminster, shall have any government stock, funds, or annuities, or any stock or shares in any public company in England standing in his name, in his own right, or in the name of any person in trust for him, it shall be lawful for a judge of one of the superior courts, on application of any judgment creditor, to order that such stock, funds, annuities, or shares, shall stand charged with the payment of the amount of the judgment and interest thereon, and such order shall entitle the judgment creditor to such remedies as he would have been entitled to if such charge had been made in his favour by the judgment debtor, but no proceedings can be taken to have the benefit of such charge until six months after such order. By s. 15, the order of the judge is to be made in the first instance ex parte, and on notice to the bank or company, is to operate as a distringas. By s. 16, securities not realized are to be relinquished if the person be taken in execution. By s. 17, judgment debts are to carry interest at four per cent. from the time when entered up or from the commencement of the act (1st October, 1838), if then entered up. By s. 18, all decrees and orders of courts of equity, and all rules of courts of common law, and all orders of the lord chancellor, or of the court of review in matters of bankruptcy, and all orders of the lord chancellor in matters of lunacy, whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the effect of judgments in the superior courts of common law; and the persons to whom any such monies or costs, charges, or expenses, shall be payable shall be deemed judgment creditors within the meaning of this act; and all powers thereby given to the judges of the superior courts of common law with respect to matters depending in the same courts, may be exercised by courts of equity with respect to matters therein depending, and by the lord chancellor and court of review in matters of bankruptcy, and by the lord chancellor in matters of lunacy; and all remedies thereby given to judgment creditors are in like manner given to persons to whom any monies or costs, charges or expenses, are by such orders or rules respectively directed to be paid. By s. 19, no such judgment, decree, order, or rule, is to affect real estate otherwise than as before the act, until registered with the senior master of the common pleas as thereby directed. By s. 20, new writs of execution are authorized to be framed and issued by the courts

loses the suit pays costs to his adversary. The statute 3 Hen. 7, c. 10, was the first which allowed costs on a writ of error;

of law, equity, and bankruptcy, for giving effect to the provisions of the act. By s. 21, powers, &c. of the act applicable to the courts and judges at Westminster, are made applicable to the courts of Lancaster and Durham. By s. 22, in cases where final judgment shall be obtained in any action or suit in any inferior court of record in which at the time of passing the act, a barrister of not less than seven years' standing, shall act as judge, assessor, or assistant, in the trial of causes, and also in all cases, where any rule or order shall be made by any such inferior court of record as aforesaid, whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, it shall be lawful for the judges of any of the courts of Westminster, or if such inferior court be within the county palatine of Lancaster, for the judges of the court of common pleas at Lancaster, or for any judge of any of the said courts, at chambers, either in term or vacation, upon the application of any person, who shall then have recovered, or shall thereafter recover such judgment, or to whom any money or costs, charges, or expenses, shall be payable by such rule or order as aforesaid, or upon the application of any person on his behalf, and upon the production of such record, rule, or order, to order and direct the same to be removed into the superior courts, or into the court of common pleas at Lancaster, as the case may be, and immediately thereupon such judgment, rule, or order, shall be of the same force, charge, and effect, as a judgment recovered in, or a rule or order made by such superior court. But no such judgment, rule, or order, when so removed as aforesaid, shall affect any lands, &c. as to purchasers, mortgagees, or creditors, any further than the same would have done if the same had remained a judgment, rule, or order, of such inferior court, unless and until a writ of execution thereon shall be actually put into the hands of the sheriff, or other officer, appointed to execute the same. By s. 27, the insolvent debtors' court is constituted a court of record for the purposes of the act.

By 2 & 3 Vict. c. 11, for the better protection of purchasers against judgments, crown debts, lis pendens, and fiats in bankruptcy, it is enacted, that no judgments are to be thereafter docketted under the provisions of 4 & 5 W. & M. c. 20. By s. 2, no judgment already docketted under 4 & 5 Wm. and M. c. 20, shall after 1 Aug. 1841, affect any lands, &c., until registered with the senior master of the common pleas as directed, by 1 & 2 Vict. c. 110. By s. 3, in addition to the entry required by 1 & 2 Vict. c. 110, the year and the day of the month when such memorandum is left with the senior master of the common pleas, are also to be inserted. By s. 4, judgments after five years from entry, are to be void, as against purchases, mortgagees, and creditors, unless a fresh memorandum is left. By s. 5 & 6, judgments duly registered are not to affect purchasers or mortgagees more extensively than judgments of the superior courts have hitherto done; nor is this act or that of 1 & 2 Vict. c. 110, to revive judgments already extinguished or barred. By s. 7, purchasers are not to be affected by any lis pendens, unless such suit is duly registered, as directed by this act. By s. 8, recognizances, statutes, or judgments in the queen's name, or inquisition by which any debt shall be found due to the queen, or obligation, or specialty to the queen, are not to affect any lands, &c., as to purchasers or mortgagees until registered in a book, to be intituled "the index to debtors and accountants to the crown," as therein directed, and such book, and also the book kept according to the provisions of 1 & 2 Vict. c. 110, are to be open to inspection by all persons. By s. 9, whenever a quietus shall be obtained by a debtor or accountant to the crown it is to be registered as therein directed. By s. 10, provision is made for discharging the estates of debtors or accountants to the crown in the hands of a purchaser or mortgagee in certain cases.

but no costs were formerly allowed the defendant in any shape till certain statutes gave him the same costs, if he prevailed, as the plaintiff would have had, in case he had recovered. These costs, on both sides, are taxed by the prothonotary, or proper officer of the court.

nor receives

The king, and any person suing to his use, shall neither The king pay nor receive costs; and paupers, or such as will swear them- neither pays selves not worth 57., are by 11 Hen. 7, c. 12, to have original costs. writs and subpoenas gratis, and counsel and attorney assigned them without fee, and are excused from paying costs, when plaintiffs, by 23 Hen. 8, c. 15; but a pauper may recover costs, though he pays none. In actions for words, for assault 1 Eq. Cas. and battery, and for trespass, if the jury shall give less damages than 40s., the plaintiff shall be allowed no more costs than damages, unless the judge shall certify that an actual battery was proved, or that in trespass the freehold or title of the land came chiefly in question. But by 9 Wm. 3, c. 11, if the trespass is wilful, the plaintiff shall recover full costs, though less than 40s. damages be awarded (m).

Abr. 125.

CHAPTER XXV.

OF PROCEEDINGS IN THE NATURE OF APPEALS, AND HEREIN

OF THE WRIT OF ERROR.

PROCEEDINGS in the nature of appeals from the proceedings Proceedings in in the king's courts of law, are various, according to the subject the nature of matter in which they are concerned.

A writ of attaint lay at the common law, to inquire whether a jury of twelve men gave a false verdict, that the judgment following thereupon might be reversed (a).

appeals.

of the writ of attaint.

Finch. L. 484.

The writ of deceit or action on the case in the nature of it, of the writ of

was to reverse a judgment there had by fraud (b).

An audita querela, is where a defendant, against whom

deceit.

(m) Every trespass is wilful where the defendant has notice, and is especially forewarned not to come upon the land, see ante, p. 391.

(a) By 6 Geo. 4, c. 50, ss. 60 and 61, the writ of attaint was abolished.

and corrupt jurors are now punishable by fine and imprisonment.

(b) By 3 & 4 Wm. 4, c. 27, s. 36, the writ of deceit was abolished.

HH

Embracers

Of audita querela.

Of the writ of error.

judgment is recorded, and who is therefore in danger of execution, or 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. But the summary relief now granted upon motion in such cases has rendered useless and driven this writ out of practice.

The principal method of redress for erroneous judgments in the king's courts of record is by writ of error (c) to some

(c) By 6 Geo. 4, c. 96, s. 1, upon any judgment thereafter to be given in any personal action, execution shall not be stayed or delayed by writ of error or supersedeas thereon, without the special order of the court or some judge thereof, unless a recognizance with condition according to 3 Jac. 1, c. 8, be first acknowledged in the same court. By 11 Geo. 4 and 1 Wm. 4, c. 70, s. 8, writs of error upon any judgment given by any of the superior courts at Westminster, shall be made returnable only before the judges, or judges and barons, as the case may be of the other two courts in the exchequer chamber; and a transcript of the record only shall be annexed to the return of the writ; and the court of error, after errors are duly assigned and issue in error joined, shall at such time as the judges shall appoint, either in term or vacation, review the proceedings and give judgment as they shall be advised thereon; and such proceedings and judgment as altered or affirmed shall be entered on the original record, and such further proceedings as may be necessary thereon, shall be awarded by the court in which the original record remains, from which judgment in error no writ of error shall lie or be had, except the same may be made returnable in parliament. A transcript of the record only is to be annexed to the writ of error to the exchequer chamber; and the proceedings and judgment are to be entered on the original record, and further proceedings awarded in the court in which that record remains. By Reg. Gen. 4 Wm. 4, no rule to certify or transcribe the record is necessary; but the plaintiff in error is within twenty days after allowance of the writ of error, to get the transcript prepared and examined with the clerk of the errors of the court in which the judgment is given, and pay the transcript money to him; in default whereof, the defendant in error, his executors, or administrators, are at liberty to sign judgment of non pros. The clerk of the errors, after payment of the transcript money, is to deliver the writ of error when returnable with the transcript annexed, to the clerk of the errors of the court of error. No rule to allege diminution, nor rule to assign errors, nor scire facias, quare executionem non, shall be necessary, in order to compel an assignment of errors, but within eight days after the writ of error with the transcript annexed, shall have been delivered to the clerk of the errors of the court of error, or to the signer of the writs in the Q. B. in cases of error to that court, or within twenty days after the allowance of the writ of error, in cases of error coram nobis, or coram vobis, the plaintiff in error shall assign errors, and on

failure to assign errors, the defendant in error, his executors, or administrators, shall be entitled to sign judgment of non pros. The assignment of errors and subsequent pleadings thereon shall be delivered to the attorney of the opposite party, and not filed with the officer of the court. No scire facias ad audiendum errors shall be necessary, unless in case of a change of parties, but the plaintiff in error may demand a joinder in error, or plead to the assignment of errors; and the defendant in error, his executors, or administrators, shall be bound within twenty days after such demand, to deliver a joinder