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also trifling and malicious actions, for words, for assault and battery, and for trespass, where the jury who try any of these actions shall give less damages than 40s. the plaintiff shall be allowed no 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 (and not an assault only) was proved, or that in trespass the freehold or title of the land came chiefly in question. Also, if the trespass were committed in hunting and sporting by an inferior tradesman, or if it appear to be wilfully and maliciously committed, the plaintiff shall have full costs, though his damages assessed by the jury amount to less than 40s.

After judgment is entered, execution will immediately follow, unless the party condemned thinks himself unjustly aggrieved by any of these proceedings; and then he has his remedy to reverse them by several writs in the nature of appeals, which we shall consider in the succeeding chapter.

CHAPTER XXV.

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.

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. But the practice of setting aside verdicts upon motion, and granting new trials, has superseded the use of attaints.

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 have been recovered to the prejudice of him that hath right.

III. An audita querela is where a defendant, against whom judgment is recovered, 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. But the indulgence now shewn 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, 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 some superior court of appeal.

A writ of error lies for some supposed 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 arising upon the face of the proceedings; so that no evidence is required to substantiate or support it.

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. Mistakes are now 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. Writs of error cannot now be maintained, but for some material mistake assigned.

If a writ of error be brought to reverse any judgment of an inferior court of record, where the damages are less than ten pounds; or, if it be brought to reverse the judgment of any superior court after verdict, he that brings the writ, or that 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.

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

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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 then from the king's bench the cause is removeable to the house of lords. From proceedings on the law side of the exchequer a writ of error lies into the court of 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. 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 first commence therein by bill, but by original writ sued out of chancery, this takes the case out of the general rule laid down by the statute; so that the writ of error then lies, without any intermediate stage of appeal, directly to the house of lords, the dernier resort for the ultimate decision of every civil action. Each court 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.

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CHAPTER XXVI.

OF EXECUTION.

Ir the regular judgment of the court, after the decision of the suit, be not suspended, superseded, or reversed, by one or other of the methods mentioned in the two preceding chapters, the next and last step is the execution of that judgment, or, putting the sentence of the law in force. This is performed in different manners, according to the nature of the action upon which it is founded, and of the judgment which is had or recovered.

If the plaintiff recovers in an action real or mixed, whereby the seizin or possession of land is awarded to him, the writ of execution shall be an habere facias seisinam, or writ of seizin, of a freehold; or an habere facias possessionem, or writ of possession, of a chattel interest. These are writs directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so recovered: in the execution of which the sheriff may take with him the posse comitatus, or power of the county; and may justify breaking open doors, if the possession be not quietly delivered. But, if it be peaceably yielded up, the delivery of a twig, a turf, or the ring of the door, in the name of seizin, is sufficient execution of the writ. Upon a presentation to a benefice recovered in a quare impedit, or assize of darrein presentment, the execution is by a writ de clerico

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