Law, Book 4 · Chapter 47
CHAP. 47.
Of new Originals in the nature of Iudiciall writs, to vndo matters concerning Iudgements.
THe new Originals in the nature of Iudiciall writs to vndoe ſome matters concerning Iudgements, whether it be the Iudgement it ſelf, or the verdict whereupon Iudgement is giuen, that ſo the iudgment alſo may be vndone, or to auoid the execution growing vponupon the iudgment, are either writs groū ded vponupon error, or an Attaint, and Audita quaerela.
Writs grounded vponupon Error, are a writ of Error and falſe Iudgment; both which lie vponupon any Error in the proceeding, as well in Redditione executionis, (as vponupon a Capias ad ſatisfaciendum, awarded for dammages 16. H, 7. 6.recouered in a reall action) as in Redditione Iudicij.
But Error in Proceſſe, may the ſame Terme bee reformed in the ſame Court, Whether it be in the Kings Bench (a)7. H. 6. 28.or Common place, (b)F. N. B. 21. …. 12. E. 4. 11. 5. H. 7. 25.and that by writ or without.
The Proceſſe here is a Scire facias.
The partie bringing a writ to reuerſe error in the Iudgement, may hauehave a Superſedeas to ſtay execution till the error be diſcuſſed, Whether it be matter apparent, or matter en fait, that is alledged for Errour. But no ſuch Superſedeas ſhall bee vponupon an Artaint; for that which is found by the oath of twelue men is intended true till it be reuerſed, but it may as well be intended that there is an errour in the Record, as not.
A writ of Error is vponupon an Errour in Court of Record.
And may be ſued in the Kings Bench, or Parliament.
In the Kings Bench when the errour is in any inferior court, whether the iudgment be giuen in the Common Place, (a)F. N. B. 21. i.Chancerie, (b)13. El Pl. 393Citie, (c)14. H. 7. 1. 8. Eli. Dy. 250. 21. El. So holden in the Common place, contrarie to Fitz. N. B. 21. i.or Gorporat towne, as before the Maior of Exceſter, or other Court of Record; for no Wait of Error is returnable in the Common place.
Statutes.
9 Ric. 2, Cap. 3. If tenant for life, or in taile, after poſſibilitie of the iſſue extinct be impleaded, and iudgement paſſe againſt him, hee that is in the reuerſion at the time of the iudgement, ſhall hauehave a Writ of Error vponupon an error in the record of the ſame iudgement, as well in the life of ſuch a tenant, as after his death. And if at any time of reuerſing of the iudgement, the Tenant for life, &c. be aliue, he ſhall not bee reſtored, &c. his poſſeſſion, with the meſn, iſſues, and he in the reuerſion to the arrerages of the ſame rent, if any be due. But if the tenant for life, &c. be dead at rhe time of the reuerſing of the iudgement, then hee in the reuerſion ſhall bee reſtored to poſſeſſion, with the iſſues after the death of their Tenant for life, &c. and the arrerages of rent due in his life.
31 Ed. 3. Cap. 12. Errour in the Exchequer ſhall be reuerſed before the Chancellor, and Treaſurer, taking to them the Iuſtices, and other ſuch ſage perſons, as they thinke fit. And after the roll ſhall be ſent backe into the Exchequer, to make execution.
31, Eliz Cap 1. If either Lord Chancellor or Lord Treaſurer, or both the chiefe Iuſtices, come at the day of adiournement in a writ of Error in the Exchequer, it ſhall be no diſcontinuance.
32. H. 8. Cap 30. made perpetuall. 2. E. …. Cap. 22. After a verdict tried by twelue men, or more, in any ſuit in Court of Record, no iudgement ſhall be ſtayed or reuerfed for any miſpleading, lacke of color, inſufficient pleading, miſcontinuance, diſcontinuance, miſcontaining of Proceſſe, miſioyning of the iſſue, lacke of Warrant of Atturnie: for the partie againſt whom the iſſue is tried, or any other default or negligence of the parties, their councellors, or Atturnies.
18. Eliz. Ca. 4. After a verdict of twelue men, or more, in any ſuit in Court of Record, iudgement ſhall not be ſtayed or reuerſed for default in form, or lack of form, as falſe Latin, variance from the Regiſter, &c, in any writ originall or iudiciall, declaration, bill, or plaint, or for want of any writ originall or iudiciall, or by reaſon of any imperfect or inſufficient returne, or for want of any Atturny, or for any manner of default in proceſſe vponupon, or after the praier or voucher.
27, Eliz. Cap 5. After demurrer ioyned or entred in any ſuit in Court of Record, the Iudges ſhall proceed and giuegive iudgement according as the verie right of the cauſe and matter in law ſhall appeare vntounto them, without regarding any imperfection, defect, or want of form in any writ, return, plaint, or declaration, or other pleading whatſoeuer; except thoſe onelyonly which the partie ſpecially & ꝑticularly ſhal ſet down and expreſſe together with his demurrer. And that no iudgment to be giuen, ſhall be reuerſed by any writ of Errour, or by any ſuch imperfection, defect, or want of form, as is aforeſaid, except as only be before excepted.
Theſe two laſt ſtatutes extend not to ſuits of felonie or murder, nor to enditemēt or preſentment of them, or of treaſon, or other matter, nor to proceſſe vponupon any of them, nor to any ſuit vponupon a popular or penall ſtatute.
In the Parliament, when the errour is 1. H. 7. 19. 23. El. Dy. 375.in the Kings Bench: And is returnable before the king and the lords only. The order wherof is this, viz. The party that ſueth it muſt hauehave a bill from the king indorſed; and thereupon the Chancellor muſt make him a writ of Error, and then the chiefe Iuſtice of the Kings Bench ſhall bring with him (in the Parliament) vntounto the Lords in the inner Parliament Chamber, the writ of Error, and the bill endorſed, and all the Rols wherein are contained the pleas and proceſſe in which error is ſuppoſed, and there ſhall leaue the tranſcript of all the Record and Proceſſe, &c. together with the ſaid writ of Error with the Clarke of the Parliament, who ſhall hauehave the cuſtodie thereof. And by the Lords onelyonly, and not the Cominalty ſhal a Steward be aſſigned, who together with the Lords, by aduiſe of the Iuſtices, ſhall proceed to amend the error.
Statutes.
27. Eliz. cap. 8. An error in the Kings Bench in an action of debt, detinue, couenant, accompt, action vponupon the caſe, Eiectione firme, or treſpaſſe firſt commenced there (where the King is no partie) may at the parties choiſe be reuerſed in the Exchequer chamber before the Iuſtices of the Common place, and ſuch Barons of the Exchequer as are of the choiſe, or ſixe of them at the leaſt, other then for error concerning the iuriſdiction of the kings Bench, or want of forme in a writ, returne, plaint, bill, declaration, pleading, proceſſe, verdict, or proceeding whatſoeuer. And vponupon the Iudgement affirmed or reuerſed, the Record ſhall be ſent backe into the Kings Bench, to proceed and award execution thereupon.
The partie grieued with ſuch reuerſall or affirmation, may hauehave a writ of Error in the Parliament as vponupon iudgement in the kings Bench.
31. Eliz. cap. 1. Any three of the Iuſtices and Barons (if the full number come not) may receiue writs of error, award, proceſſe, prefixe dayes for the continuance of the writs of Error.
Falſe Iudgement is vponupon error in a F. N. B. 17. & 18.baſe Court.
Thus much of writs of Error and falſe Iudgement, there followeth an Attaint, and Audita querela.
Attaint is to enquire whether a Iurie of 12. men gaue a falſe verdict. That ſo the iudgement following vponupon it may bee reuerſed, 18. E. 4. 9.and the partie reſtored to all that he hath loſt, that is to ſay, if it bee the defendant to his damages and whatſoeuer elſe: if the plaintife, to his title, his action, &c. for an attaint lyeth not till Iudgement bee giuen, 9 aſſ. Pl. 21.and if the Writ beare date before it ſhall abate. And this lyeth onelyonly vponupon a Br. attaint. 42.verdict by xij. for if hee loſe in a Writ of right no atraint lyeth neither by the Common Law nor Statute, becauſe it paſſeth by a Iurie of more then xij. that is to ſay, the grand aſſiſe. No more doth it in an enqueſt of office, & vponupon a writ to enquire of damages 3…. H. 6. 1. 3. H. 6. 29.in treſpaſſe, for that may bee by a leſſe number then xij.
And this muſt be brought in the life of him for whom it paſſed, and of ſome of them that gaue it, whom we call the petie Iurie, for if either the (a)25. H. 8. Dy. 5 26. aſſ. Pl. 12.partie himſelfe, or (b)13. E. 4. 5.all the petie Iurie bee dead, or (c)34 aſſ. Pl. 6. 26. aſſ. Pl. 2.all of them but one, the attaint faileth, and lyeth onelyonly vponupon a verdict in perſonall actions other than treſpaſſes: for it ſeemeth that there was an attaint at the Common Law, becauſe Weſtm̄ 1. cap. 37. ſpeaketh of attaints Br. attaint. 42.without expreſſing any penaltie. And 34. E. 3 cap. 7. giueth it in plea reall as well as perſonall. So as it lay before in a plea perſonall, debt, detinue, couenant, and ſuch like: but not in treſpaſſe, for that is giuen by ſtatute. And the reaſon why it lay not in an action of Treſpaſſe, is becauſe then vponupon reuerſing of the recouerie the K. ſhall loſe his fine. Neither did it lye at the Common law in a plea reall of land, for Weſtm̄ 1. cap. 37. giueth it in that caſe. And the reaſon of that was, becauſe he that loſeth may hauehave a writ of right.
The Iurie here called the Grand Iurie, Old N. B. 111.are 24. who are to be warned the firſt day. And the proceſſe is againſt the partie ſommons, Old. N B. 112.reſommons, as in a mortdanceſter, darrein preſentment, and Iuris vtrum, againſt the petie Iurie, venire facias and diſtreſſe.
The petie Iurie muſt bee all preſent 22. H. 6. 8.when the grand Iurie is taken, elſe it can neuer be taken, which was a great miſchiefe at the Common Law, for it might be that ſome of them had nothing, and ſo would neuer appeare, And may plead in bar of the 35. H. 6. 30.attaint, as a releaſe, arbitrement, &c. for this excuſeth them of their falſe oath, but not in abatement of the writ, as another attaint 19. aſſ. Pl. 15:hanging, that the demaundant had ioyntly with another not named in the writ: or if a woman bring it to ſay ſhe is couert, &c.
The Plaintife in the attaint can giuegive no more euidence then was giuen at the 34. H. 8. Dy. 53.firſt. But the defendant in affirmance of the firſt verdict may.
Statutes.
Weſtm̄ 1. cap 37. An attaint is giuen in pleas of land or of freehold, or of things that touch freehold.
1. E. 3. cap. 8. In writs of treſpaſſe as well vponupon the principall as the damages, though Execution be not ſued of them.
28. E. 3. cap 8. And that as well by bill as by writ, without regarding the quantitie of the damages.
34. E. 3. cap. 7. An attaint is giuen in euerie plea, reall as well as perſonall.
9. Ric. 2. cap. 3. Giuen to him in the reuerſion lyuing his Tenant for terme of life vponupon a recouerie againſt him, with reſtitution of the Tenant that loſt his poſſeſſion, with the meſne iſſues. And of him in the reuerſion to the arrerages of his rent. But if the Tenant that loſt be either dead, or were of couin with him that recouered, then reſtitution ſhall be to him in the reuerſion of the poſſeſſion it ſelfe, with the meſne, iſſues and arrerages, after ſuch death and recouerie by couin.
14▪ E. 2. Of Sherifes and greene waxe, if the pety Iurie appeare not at the firſt grand diſtreſſe againſt them, or a Nihil be returned the grand Iurie ſhall be taken by their default.
23. H. 8. cap. 3. made perpetuall 13. Eliz. cap. 9. In a ſuite before Iuſtices of Record not concerning life, an attaint is giuen againſt the petie Iurie, and eueryevery of them, and the partie himſelfe.
The proceſſe againſt the petie Iurie and fraud Iurie, ſhall bee ſommons and reſommons, and diſtreſſe infinite.
Open proclamation ſhall be made in the Court where the diſtreſſe is awarded more then xv. dayes before the returne of the diſtreſſe.
The graund ſhall be taken in default of the defendant, or petie Iurors, or any of them.
The petie Iurie that appeare beeing the ſame perſons, and the writ, proceſſe, returne, aſſignment of the falſe oath good, ſhall hauehave no anſwer, but that hee made a true oath, except the plaintife or demaundant hath beene non ſuite, or diſcontinued, or had iudgement againſt the petie Iurie vponupon his ſuite of attaint. But the partie himſelfe ſhal plead any thing onelyonly in barre of the attaint. Notwithſtanding which plea, the grand Iurie ſhall without delay enquire of the truth of the verdict. Such a day ſhall be giuen in the proceſſe as in a Writ of dower, and no eſſoyne or protection allowable.
By the death of the partie, or one of the petie Iurie, the attaint ſhall not abate, nor be deferred againſt the reſt as long as two of the petie Iurie ſhall liue.
EueryEvery attaint ſhall not bee in the Kings Bench, or Common place, and the Niſi prius granted vponupon the diſtreſſe by the diſcretion of the Iuſtices. And eueryevery of the petie Iurie may be by Atturny. The non ſuit or releaſe of one when there be diuerſe Plaintifes or demaundants in an attaint ſhall not preiudice the reſt.
EueryEvery one of the grand Iurie muſt hauehave xx. markes a yeare land of freehold, out of auntient demeſne. But if the value of the thing in ſuite bee vnderunder the value of fortie pounds, then v. marks a yeare, or a C. marks worth of goods ſufficeth for default of ſuch ſufficient Iurors, within the ſame Countie, a Tales ſhall be awarded vntounto the next.
11. H 6. cap 4. The Plaintife ſhall recouer coſts and damages againſt the Iuror or defendant that pleads a fained plea in delay. Audita querela is for one being or to be in execution to relieue him vponupon good matter of diſcharge which hee hath no meanes to plead. As if one hauing a releaſe be taken 22. H. 8. 56.in execution in one Court, as in the Common place, by writ out of another (as out of the Chancerie) returnable in the Common place, vponupon a Recogniſance, or condemnation in the Chancerie. (But if the Recogniſance or condemnation had beene in the Common place, then they might hauehave awarded proceſſe vponupon that matter) If execution be ſued of a Recogniſance by Fieri facias or elegit: (but not by Scire facias, 48. E. 3. 20.for there he hath day to anſwer, therefore it is his ſolly if he come not in and plead it, that is to ſay, where the Sherife returneth him warned: otherwiſe it is vponupon a Nihil returned) if a releaſe or acquittance be made vntounto him after the Scire facias ſued, if after verdict and before iudgement they hauehave put themſelues into abitrement.
The proceſſe where the Audita quertla is ſued, before execution is a venire facias and 12. H 4 6. 15. Br. Audit. quaerela. 15. 22. H. 6. 56. 12. H. 4. ibid. 47. E. 3. 1. 17▪ E. 3. 3. 28. E. 3. ꝓ Old N. B. 66.diſtreſſe, and vponupon default after appearance and plea pleaded, a diſtringas ad audiendum Iudicium, for thereby Iudgement is to bee giuen againſt him. And in this caſe of an Audita querela ſued before execution, he may hauehave a Superſedeas vponupon good matter of diſcharge ſurmiſed in the writ of Audita querela, to ſtay for once the execution vponupon ſureties, ſo (a)11. R. 2. Superſed. 14.can he not beeing in execution. Neither (b)2▪ H. 7. 12. 21. H. 6. 34.can he hauehave a Superſedeas before execution oftner then once, though (c)43 E. 3 …8. F. N. B. 104. q. cont.it bee vponupon new matter. But if the (d)F. N B. 204. q.Audita querela bee abated for variance from the Record, or ſuch like, there in another Audita querela he may hauehave a ſecond Superſedeas.
After execution the proceſſe is a Scire facias, as if he be brought in by a Capias ad 22 H. 6. 56. 15. E. 4. 5.ſatisfaciendum, for there hee is in priſon, otherwiſe it is if he be not taken by a capias, but come in gratis. And this ſcire facias is onelyonly for the more haſty expedition of the partie that is in priſon, for if the proceſſe ſhould be by diſtreſſe infinite, peraduenture the partie would loſe iſſues, to keepe the others body in perpetuall priſon.