Front Page Titles (by Subject) CHAPTER XXV.: OF PROCEEDINGS IN THE NATURE OF APPEALS. - Commentaries on the Laws of England in Four Books, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XXV.: OF PROCEEDINGS IN THE NATURE OF APPEALS. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF PROCEEDINGS IN THE NATURE OF APPEALS.
**402]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:1 which lieth to inquire whether a jury of twelve men gave a false verdict;(a) 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 writs of assize; 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 assize, of finding a verdict according to their own personal knowledge, without the examination of witnesses. And even here it extended no further than to such instances **403]where the issue was joined upon the very point of assize, (the heirship, disseisin, &c.,) and not on any collateral matter; as villenage, bastardy, or any other disputed fact. In these cases the assize was said to be turned into an inquest or a jury, (assisa vertitur in juratum,) or that the assize 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 assize:(b) and then I apprehend that no attaint lay against the inquest or jury that determined such collateral issue.(c) Neither do I find any 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 prosecuted by writ of entry. Nor 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 assizes, 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,(e) a writer contemporary with the statute; though Sir Edward Coke(f) seems to hold a different opinion. Other subsequent statutes(g) 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,(h) at the first introduction of the grand assize, (which at that time might consist of only twelve recognitors, in case they were all unanimous,) yet subsequent **404]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 determined by the grand assize, appealed to by the party himself, 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 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;(l) 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 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 plainiff 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 *[*405statute 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 40l. value, a forfeiture of 20l. apiece by the jurors, or, if under 40l., then 5l. 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 proceeding from whence our attaint may be derived.—If, upon a lawful trial before a superior tribunal, the jury were found to have given a false verdict, they were fined, and rendered infamous for the future.(o)
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.2 But of this enough hath been observed in a former chapter.(p)3
III. An audita querela is where a defendant, against whom judgment is recovered, and who is therefore in danger of execution, *[*406or 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 shown 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 defenaentis, 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 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;(s) 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 hath a good defence is too late to make it in the ordinary forms of law. But the indulgence now shown 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.4
IV. But, fourthly, 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.
**407]A writ of error(u) 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.(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.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 by the common law; but when judgment is once given and enrolled, 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 *[*408acts is attained by the court’s overlooking the exception.(z) 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) 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 perceived and objected to by the opposite party or the court, the pleader instantly acknowledged his error and rectitied 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 unwarrantable 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 **409]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 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 exchequer) 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, even the most able and upright.(d) The severity of which proceedings seems to have alarmed the **410]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 *[*411pleader, and overturned his client’s cause.(i) If they qurst not, or would not, set right mere formal mistakes at any time, upon equitable terms and conditions, they at least should have held, that trifling objections were at all times inadmissible, and that more solid exceptions in point of form came too late when the merits had been tried. They might, through a decent degree of tenderness, have excused themselves from amending in criminal, and especially in capital, cases. They needed not have granted an amendment, where it would work an injustice to either party; or where he could not be put in as good a condition as if his adversary had made no mistake. And, if it was feared that an amendment after trial might subject the jury to an attaint, how easy was it to make waiving the attaint the condition of allowing the amendment! And yet these were among the absurd reasons alleged for never suffering amendments at all!(k)
The precedents then set were afterwards most religiously followed,(l) to the great obstruction of justice, and ruin of the suitors: who have formerly suffered as much by this scrupulous obstinacy and literal strictness of the courts, as they could have done even by their iniquity. After verdicts and judgments upon the merits, they were frequently reversed for slips of the pen or mis-spellings; and justice was perpetually entangled in a net of mere technical jargon. The legislature hath therefore been forced to interpose, by no less than twelve statutes, to remedy these opprobrious niceties: and its endeavours have been of late so well seconded by judges of a more liberal cast, that this unseemly degree of strictness is almost entirely eradicated, and will probably in a few years be no more remembered than the learning of essoigns and defaults, or the counterpleas of voucher, are at present. But to return to our writs of error.
**[**410If 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 is 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:(m) 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 all except in a few particular in stances, by virtue of the several statutes recited in the margin.(n)7
A writ of error lies from the inferior courts of record in England into the king’s bench,(o) and not into the common pleas.(p)8 Also from the king’s bench in Ireland to the king’s bench in England.9 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 removable 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;10 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;(q) but where the proceedings in the king’s bench do not first commence therein by bill, but by original writ sued out of chancery,(r) this takes the case out of the general rule ****411]laid down by the statute;(s) so that the writ of error then lies, without any intermediate state of appeal, directly to the house of lords, the dernier resort for the ultimate decision of every civil action.11 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. And thus much for the reversal or affirmance of judgments at law by writs in the nature of appeals.12
[1 ] Abolished, by stat 6 Geo. IV. c. 60, ante.
[(a) ] Finch, L. 484.
[(b) ] Bract. l. 4, tr. 1, c. 34, 2, 3, 4; tr. 3, c. 17; tr. 5, c. 4, [Editor: illegible character] 1, 2. Flet. l. 5, c. 22, 8. Co. Entr. 61, b. Booth, 213.
[(c) ] Bract. 4, 1, 34, 2. Flet. ibid.
[(d) ] Year-book, 28 Edw. III. 15, 17. Ass. pl. 15. Flet. 5, [Editor: illegible character] 16.
[(e) ]I., 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 page 389.
[(i) ] Bract. 290. Flet. 5, 22, 7. Britt. 242. b. 12 Hen. VI. 6 Bro. Abr. tit. atteint, 42. 1 Roll. Abr. 289.
[(k) ] Bract. l. 4, tr. 5, c. 4, 1. Flet. l. 5, c. 22, 7.
[(l) ] Finch, L. 486.
[(m) ] 3 Inst. 164.
[(n) ] Cro. Eliz. 309. Cro. Jac. 90.
[(o) ] “Si tamen evidenti argumento falsum jurasse convin[Editor: illegible character]itur (id quod superius judicium cognoscere debet) muletantur in bonis, de cætero perjuri et intestabiles.” Stiernh de jure Goth. l. 1, c. 4.
[2 ] The writ has been abolished, by 3 & 4 W. IV. c. 27, s. 36.—Stewart.
[(p) ] See page *165.
[3 ] By stat. 9 Geo. IV. c. 14, s. 6, no action shall be brought whereby to charge an 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.—Chitty.
[(q) ] See page 310.
[(r) ] Finch, L. 488. F. N. B. 102.
[(s) ] 1 Roll. Abr. 308.
[(t) ] Lord Raym. 439.
[4 ] 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, when there is some doubt about the execution, or some matter of fact which cannot be clearly ascertained by affidavit, and therefore 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 shown 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 resorted 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, returnable in the Common Pleas or King’s Bench; and so it is sometimes judicial, sometimes original. F. N. B. 239, 240, b., 7th ed. An audita querela is no supersedeas, and therefore execution may be taken out, unless a supersedeas 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 audita querela was lately brought in the case of Nathan vs. Giles, (7 Taunt. 557. 1 Marsh. 226, S. C.;) and 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 justiciæ. However, the supersedeas founded thereon must be moved for. If the plaintiff be non-suited, he may have a new audita querela, but he shall not have a supersedeas. F. N. B. 104, o., 9th ed. In Nathan vs. 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.—Chitty.
[(u) ] Append. No. III. 6.
[(v) ] Finch, L. 484.
[5 ] 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 judgment: 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 quæ 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, before 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. Abr. 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 quæ 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. Ca. temp. Hardw. 135, 136.—Chitty.
But this writ cannot be brought after twenty years, unless in case of personal disability from infancy, coverture, 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.—Chitty.
[(w) ] 4 Burr. 1099.
[(x) ] Co. Latt. 260.
[(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 and 15. 32 Hen. VIII. c. 30. 18 Eliz. c. 14. 21 Jac. I. c. 13. 16 & 17 Car. II. c. 8, (styled in 1 Ventr. 100 an omnipotent act.) 4 & 5 Anne, c. 16. 9 Anne, c. 20. 5 Geo. I. c. 13.
[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-delivery 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 misdemeanour, when any variance shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record, wherein 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 other party as such judge or court shall think reasonable, 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 endorsed 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.—Chitty.
[(b) ] Brit. proem. 2, 3.
[(c) ]Judicia perverterunt, et in aliis erraverunt. Matth. West. ad 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 Caron. 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 compassion, 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 sum 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 certainly his offence (whatever it was) was nothing very atrocious or disgraceful; for though removed from the King’s Bench at this time, (together with the rest of the judges,) we find him, about eleven years afterwards, one of the justices in eyre for the general perambulation of the forest, (Rot. perambul. forest in turri Lond., 29 Edw. I. m. 8,) and the next year made chief-justice of the Common Pleas (Pat. 29 Edw. I. m. 7. Dugd. Chron. Ser. 32,) in which office he continued till his death, in 2 Edw. II. Claus. 1 Edw. II. m. 19. Pat. 2 Edw. II. p. 1, m. 9. Dugd 34. Selden, pref to Hengham. There is an appendix to this tradition, remembered by justice Southcote in the reign of queen Elizabeth, (3 Inst. 72, 4 Inst. 255,) that with this fine of chief-justice Hengham a clock-house was built at Westminster, and furnished with a clock, to be heard into Westminster hall. Upon which story I shall only remark that (whatever early instances may be found of the private exertion of mechanical genius in constructing horological machines) clocks came not into common use till a hundred years afterwards, about the end of the fourteenth century. Encyclopedie, tit. Horloge, 6 Rym. Fœd. 590. Derham’ Artif Clockmaker, 91.
[(e) ] 1 Hal. P. C. 647.
[(f) ] 1 Leon. 183. Co. Litt. 117. See page 331.
[(g) ] 1 Hal. P. C. 648.
[(h) ] Stat. 14 Edw. III. c. 6.
[(i) ] In those days it was strictly true, what Ruggle (in his Ignoramus) has humorously applied to more modern pleadings:—“in nostra a lege unum comma evertit tatum placitum.”
[(k) ] Styl. 207.
[(l) ] 8 Rep. 156, &c.
[(m) ] Stat. 3 Jac. I. c. 8. 13 Car. II. c. 2. 16 & 17 Car. II. c. 8. 19 Geo. III. c. 70.
[(n) ] 3 Hen. VII. c. 10. 13 Car. II. c. 2. 8 & 9 W. III. c. II. 4 & 5 Anne, c. 16.
[7 ] By the 3 Jac. I. c. 8, (made perpetual by 3 Car. I. c. 4, s. 4,) to restrain unnecessary delays of execution, it was provided “that in the actions therein specified no writ of error should be allowed, unless the party bringing the same, with two sufficient sureties, shall first be bound unto the party for whom the judgment is given, by recognizance to be acknowledged in the same court, in double the sum, to be recovered by the former judgment, to prosecute the said writ of error with effect, and also to satisfy and pay if the said judgment be affirmed or the writ of error nonprossed, all and singular the debts, damages, and costs adjudged upon the former judgment, and all costs and damages to be awarded for the delaying of the execution.” And now, by the 6 Geo. IV. c. 96, for further preventing the delays occasioned by frivolous writs of error, it is enacted that upon any judgment hereafter to be given in any of the courts of record at Westminster, in the counties palatine, and in the courts of great session in Wales, in any personal action, execution shall not be stayed or delayed by any writ of error, or supersedes thereupon, without the special order of the court, or some judge thereof, unless a recognizance, with a condition according to the 3 Jac. I. c. 8, (above noticed,) be first acknowledged in the same court. After final judgment, and before execution executed, a writ of error is, generally speaking, a supersedeas of execution from the time of its allowance. (1 Vent. 31. 1 Salk. 321. 1 T. R. 280. 2 B. & P. 370. 2 East. 439. 5 Taunt. 204. 1 Gow. 66. 1 Chitty R. 238, 241. 3 Moore, 89;) but it is no supersedeas unless bail in error be put in, and notice thereof given within the time limited by the rules of the court. 2 Dowl. & Ry. 85. And when it is apparent to the court that a writ of error is brought against good faith, (2 T. R. 183. 8 Taunt. 434,) or for the mere purpose of delay, (4 T. R. 436. 2 M. & S. 474, 476. 1 Bar. & Cres. 287,) or it is returnable of a term previous to the signing of final judgment, (Barnes, 197,) it is not a supersedeas. Tidd, 8th ed. 1202. In Tidd, 1199, 8th ed. it is said that there must be fifteen days between the teste and return of a writ of error; but it was said in Laidler vs. Foster, where there was an interval of twelve days only, that there is a distinction between writs of error and those which are the commencement of a suit; and the usual course of practice was followed in this case, (viz., not to pass over more than one return between the teste and return:) the court therefore refused to quash the writ. 4 Bar. & Cres. 116. And in another case the court of King’s Bench held that the court could not quash a writ of error upon a judgment of the Common Pleas of Durham, nor award execution upon the judgment of an inferior court. 4 Dowl. & Ry. 153.—Chitty.
[(o) ] See ch. 4.
[(p) ] Finch, L. 480. Dyer, 250.
[8 ] It is not correct that a writ of error does not lie from an inferior court into the court of Common Pleas. There is a modern instance of such a proceeding in Bower vs. Wait, 1 M. & G. 1, in a learned note to which (p. 2, note a.) the opinion in the text is controverted.—Couch.
[9 ] This appeal is taken away by 23 Geo. III. c. 21. Since the union, however, a writ of error lies from the superior courts in Ireland to the house of lords. Before the union with Scotland, a writ of error lay not in this country upon any judgment in Scotland; but it is since given, by statute 6 Anne, c. 26, s. 12, from the court of Exchequer in Scotland, returnable in parliament. And see the 48 Geo. III. c. 151, concerning appeals to the house of lords from the court of session in Scotland.—Chitty.
[10 ] The 31 Edw. III. c. 12 directs that the chancellor and treasurer shall take to their assistance the judges of the other courts, and autres sages come lour semblera. But the 20 Car. II. c. 4 has dispensed with the presence of the lord treasurer when the office is vacant; and it is the practice for the two chief justices alone to sit in this court of error, who report their opinion to the chancellor, and the judgment is pronounced by him.—Chitty.
[(q) ] Stat. 27 Eliz. c. 8.
[(r) ] See page 43.
[(s) ] 1 Roll. Rep. 264. 1 Sid. 424. 1 Saund. 340. Carth. 180. Comb. 295.
[11 ] But now, by statute 1 Will. IV. c. 70, and the Common-Law Procedure Act, 1852, error upon any judgment of the Queen’s Bench, Common Pleas, or Exchequer must be brought in the Exchequer chamber before the judges, or judges and barons, as the case may be, of the other two courts, whence it again lies to the house of lords.—Stewart.
[12 ] In this chapter Sir W. Blackstone has considered only the modes by which a judgment may be reversed by writ of error brought in a court of appeal, and has stated that this can only be done for error in law. There is, however, a proceeding to reverse a judgment by writ of error in the same court, where the error complained of is in fact and not in law, and where of course no fault is imputed to the court in pronouncing its judgment. This writ is called the writ coram nobis or coram vobis, according as the proceedings are in the King’s Bench or Common Pleas, because the record is stated to remain before us (the king) if in the former, and before you (the judges) if in the latter, and is not removed to another court. In this proceeding it is of course necessary to suggest a new fact upon the record, from which the error in the first judgment will appear: thus, supposing the defendant, being an infant, has appeared by attorney instead of guardian, it will be necessary to suggest the fact of his infancy of which the court was not before informed. There is therefore no inconsistency in bringing this writ of error before the same judges who pronounced the judgment in the first instance; because they are required to pronounce upon a new state of facts, without impeachment of the former judgment on the facts as they then stood.—Coleridge.