PRIVATE WRONGS.
BOOK III.
Ch. 24.

CHAPTER THE TWENTY FOURTH.

OF JUDGMENT, AND IT'S INCIDENTS.

IN the following chapter we are to confider the tranfactions in a caufe, next immediately fubfequent to arguing the demurrer, or trial of the iffue.

IF the iffue be an iffue of fact; and, upon trial by any of the methods mentioned in the two preceding chapters, it be found for either the plaintiff or defendant, or fpecially; or if the plaintiff makes default, or is nonfuit; or whatever, in fhort, is doen fubfequent to the joining of iffue and awarding the trial, is done fubfequent to the joining of iffue and awarding the trial, it is entered on record, and is called a poftea ^a. The fubftance of which is, that poftea, afterwards, the faid plaintiff and defendant appeared by their attornies at the place of trial; and a jury, being fworn, found fuch a verdict; or, that the plaintiff after the jury fworn made default, and did not profecute his fuit; or, as the cafe may happen. This is added to the roll, which is now returned to the court from which it was fent; and the hiftory of the caufe, from the time it was carried out, is thus continued by the poftea.

.{FS}
^a Append. N^o. 11. §. 6.
.{FE}
NEXT
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Ch. 24.
NEXT follows, fixthly, the judgment of the court upon what has previoufly paffed; both the matter of law and matter of fact being now fully wrighed and adjufted. Judgment may however for certain caufes be fufpended, or finally arrefted: for it cannot be entered till the next term after trial had, and that upon notice to the other party. So that if any defect of juftice happened at the trial, by furprize, inadvertence, or mifconduct, the party may have relief in the court above, by obtaining a new trial; or if, notwithftanding the iffue of fact be regularly dicided, it appears that the complaint was either not actionable in itfelf, or not made with fufficient precifion and accuracy, the party amy fuperfede it, by arrefting or ftaying the judgment.

1. CAUSES of fufpending the judgment by granting a new trial, are at prefent wholly extrinfic, arifing from matter foreign to or dehors the record. Of this fort are want of notice of trial; or any flagrant mifbehaviour of the party prevailing towards the jury, which may have influenced their verdict; or any grofs mifbehaviour of the jury among themfelves: alfo if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, fo that he is reafonably diffatisfied therewith ^b; or if they have given exorbitant damages ^c; or if the judge himfelf has mif-directed the jry, fo that they found an unjuftifiable verdict; for thefe, and other reafons f the like kind, it is the practice of the court to award a new, or fecond, trial. But if two juries agree in the fame or a fimilar verdict, a third trial is feldom awarded ^d: for the law will not readily fuppofe, that the verdict of any one fubfequent jury can countervail the oaths of two preceding ones.


THE exertion of thefe fuperintendent powers of the king's courts, in fetting afide the verdict of a jury and granting a new trail, on account of mifbehaviour in the jurors, is of a date ex-

.{FS}
^b Law of nifi prius. 303, 4.
^c Comb. 357.
^d 6 Mod. 22. Salk. 649.
.{FE}

A a a 2

tremely

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Ch. 24.
tremely antient. There are inftances, in the yer books of the reigns of Edward III ^e, Henry IV ^f, and Henry VIII ^g, of judgments being (ftayed (even after a trial at bar) and new venire's awarded, becaufe the jury had eat and drank without confent of the judge, and becaufe the plaintiff had privately given a paper to a juryman before he was fworn. And upon thefe the chief juftice, Glyn, in 1655, grounded the firft precedent that is reported in our books ^h for granting a new trial upon account of exceffive damages given by the jury: apprehending with reafon, that notorious partiality in t he jurors was a principal fpecies of mifbehaviour. And, a few years before, a practice took rife in the common pleas ⁱ, of granting new trials upon the mere certificate of the judge, unfortified by any report of the evidence, that the verdict had paffed againft his opinion; though juftice Rolle (who allowed of new trials in cafe of mifbehaviour, furprize, or fraud, or if the verdict was notorioufly contrary to evidence ^k) refufed to adopt that practice in the court of king's bench. And at that time it was clearly held for law ^l, that whatever matter was of force to avoid a verdict, ought to be returned upon the poftea, and not merely furmifed to the court; left pofterity fhould wonder why a new venire was awarded, without any fufficient reafon appearing upon the record. But very early in the reign of Charles the fecond new trials were granted upon affidavits ^m; and the former ftrictnefs of the courts of law, in refpect of new trials, having driven many parties into equity to be relieved from oppreffive verdicts, they are now more liberal in granting them: the maxim at prefent adopted being this, that (in all cafes of moment) where juftice is not done upon one trial, the injured party is intitled to another ⁿ.

.{FS
^e 24 Edw. III. 24. Bro. Abr. t. verdite. 17.
^f 11 Hen.IV. 18. Bro. Abr. t. Enqueft. 75.
^g 14 Hen. VII. 1. Bro. Abr. t. verdite. 18.
^h Styl. 466.
ⁱ Ibid. 138.
^k 1 Sid. 235. Styl. Pract. Reg. 310, 311. edit. 1657.
^l Cro. Eliz. 616. Palm. 325.
^m 1 Sid. 235. 2 Lev. 140.
ⁿ 4 Burr. 395.
.{FE}
FOR-
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FORMERLY the only remedy for reverfal of a verdict unduly given, was by writ of attaint; of which we fhall fpeak in the next chapter, and which is at leaft as old as the inftitution of the grand affife by Henry II ^o, in lieu of the Norman trial by battle. Such a fanction was probably thought neceffary, when, inftead of appealing to providence for the decifion of a dubious right, it was referred to the oath of fallible or perhaps corrupted men. Our anceftors faw, that a jury might give an erroneous verdict; and, if they did, that it ought not finally to conclude the queftion in the firft inftance: but the remedy, which they provided, fhews the ignorance and ferocity of the times, and the fimplicity of the points then ufually litigated in courts of juftice. They fuppofed that, the law being told to the jury by the judge, the proof of fact muft be always fo clear, that, if they found a wrong verdict, they muft be willfully and corruptly perjured. Whereas a juror may find a juft verdict from unrighteous motives, which can only be known to the great fearcher of hearts; and he may, on the contrary, find a verdict very manifeftly wrong, without any bad motive at all: from inexperience in bufinefs, incapacity, mifapprehenfion, inattention to circumftances, and a thoufand other innocent caufes. But fuch a remedy as this laid the injured party under an infuperable hardfhip, by making a conviction of the jurors for perjury the condition of his redrefs.

THE judges faw this; and very early, even for the mifbehaviour of jurymen, inftead of profecuting the writ of attain, awarded a fecond trial: and fubfequent refolutions, for more than a century paft, have fo extended the benefit of this remedy, that the attaint is now as obfolete as the trial by battle which it fucceeded: and we fhall probably fee the revival of the one as foon as the revival of the other. And there I cannot but again admire^p the wifdom of fuffering time to bring to perfection new remedies, more easy and beneficial to the fubject; which, by

.{FS}
^o Ipfi regali inftitutioni eleganter inferta. (Glanv. l. 2. c. 19.)
^p See pag. 268.
.{FE}
degrees,
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Ch. 24.
degrees, from the experience and approbation of the people fuperfede the neceffity or defire of ufing or continuing the old.

IF every verdict was final in the firft inftance, it would tend to deftroy this valuable method of trial, and would drive away all caufes of confequence to be decided according to the forms of the imperial law, upon depofitions in writing; which might be reviewed in a courfe of appeal. Caufes of great importance, titles to land, and large queftions of commercial property, come often to be tried by a jury, merely upon the general iffue: where the facts are complicated and intricate, the evidence of great length and variety, and fometimes contradicting each other; and where the nature of the difpute very frequently introduces nice queftions and fubtilities of law. Either party may be furpirzed by a piece of evidence, which (had he known of it's production) he could have explained or anfwered; or may be puzzled by a legal doubt, which a little recollection would have folved. In the hurry of a trial the ableft judge may miftake the law, and mifdirect the jury: he may not be able fo to ftate and range the evidence as to lay it clearly before them; nor to take off the artful impreffions which have been made on their minds by learned and experienced advocates. The jury are to give their opinion inftanter; that is, before they feparate, eat, or drink. And under thefe circumftances the moft intelligent and beft intentioned men may bring in a verdict, which they themfelves upon cool deliberation would wifh to reverfe.

NEXT to doing right, the great object in the adminiftration of public juftice fhould be to give public fatisfaction. If the verdict be liable to many objections and doubts in the opinion of his counfel, or even in the opinion of by-ftanders, no party would go away fatisfied unlefs he had a profpect of reviewing it. Such doubts would with him be decifive: he would arraign the determination as manifeftly unjuft; and abhor a tribunal which he imagined had done him an injury without a poffibility of redrefs.
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Ch. 24.
GRANTING a new trial, under proper regulations, cures all thefe inconveniences, and at the fame preferves intire and renders perfect that moft excellent method of decifion, which is the glory of the Englifh law. A new trial is a rehearing of the caufe before another jury, but with as little prejudice to either party, as if it had never been heard before. No advantage is taken of the former verdict on the one fide, or the rule of court for awarding fuch fecond trial on the other: and the fubfequent verdict, though contrary to the firft, imports no tittle of blame upon the former jury; who, had they poffeffed the fame lights and advantages, would probably have altered their own opinion. The parties come better informed, the counfel better prepared, the law is more fully underftood, the judge is more mafter of the fubject; and nothing is now tried but th e real merits of the cafe.

A SUFFICIENT ground muft however be laid before the court, to fatisfy them that is neceffary to juftice that the caufe fould be farther confidered. If the matter be fuch, as did not or could not appear to the judge who prefided at nifi prius, it is defclofed to the court by affidavit: if it arifes from what paffed at the trial, it is taken from the judge's information; who ufually makes a fpecial and minute report of the evidence. Counfel are heard on both fides to impeach or eftablifh the verdict, and the court give their reafons at the large why a new examination ought or ought not to be allowed. The true import of the evidence is duly weighed, falfe colours are taken off, and all points of law which arofe at the trial are upon full deliberation clearly explained and fettled.

NOR do the courts lend to eafy an ear to every application for a review of the former verdict. They muft be fatisfied, that there are ftrong probably grounds to fuppofe that the merits have not been fairly and fully difcuffed, and that the decifion is not agreeable to the juftice and truth of the cafe. A new trial is not
granted,
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BOOK III.
Ch. 24.
granted, where the value is too inconfiderable to merit a fecond examination. It is not granted upon nice and formal objections, which do not go to the real merits. It is not granted in cafes of ftrict right or fummam jus, where the rigorous exaction of extreme legal juftice is hardly reconcileable to confcience. Nor is it granted where the fcales of evidence hang nearly equal: that, which leans againft the former verdict, ought always very ftrongly to preponderate.

IN granting fuch farther trial (which is matter of found difcretion) the court has alfo an opportunity, which it feldom fails to improve, of fupplying thofe defects in this mode of trial which were ftated in the preceding chapter; by laying the party applying under all fuch equitable terms, as his antagonift fhall defire and mutually offer to comply with: fuch as the difcovery of fome facts upon oath; the admiffions of others, not intended to be litigated; the production of deeds, books, and papers; the examination of witneffes, infirm or going beyond fea; and the like. And the delay and expenfe of this proceeding are fo fmall and trifling, that it never can be moved for to gain time or to gratify humour. The motion muft be made within the firft four days of the next fucceeding term, within which term it is ufually heard and decided. And it is worthy obfervation, how infinitely fuperior to all others the trial by jury approves itfelf, even in the very mode of it's revifion. In every other country of Europe, and in thofe of our own tribunals which conform themfelves to the procefs of the civil law, the parties are at liberty, whenever they pleafe, to appeal from day to day and from court to court upon queftions merely of fact; which is a perpetual fource of obftinate chicane, delay, and expenfive litigation ^q. With us no new trial is allowed.

.{FS}
^q Not many years ago an appeal was brought to the houfe of lords from the court of feffion in Scotland, in a caufe between Napier and Macfarlane. It was inftituted in March 1745; and, after many interlocutory orders and fentences below, appealed from and reheard as far as the courfe of proceeding's would admit, was finally determined in April 1749: the queftion being only on the property in an ox, adjudged to be of the value of three guineas. No pique or fpirit could have made fuch a caufe, in the court of king's bench or common pleas, have lafted a tenth of the time, or have coft a twentieth part of the expenfe.
.{FE}
unlefs
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PRIVATE WRONGS.
BOOK III.
Ch. 24.
unlefs there by a manifeft miftake, and the fubject matter be worthy of interpofition. The party who thinks himfelf aggrieved may ftill, if he pleafes, have recourfe to his writ of attaint after judgment; in the courfe of the trial he may demur to the evidence, or tender a bill of exceptions. And, if the firft is totally laid afide, and the other two very feldom put in practice, it is becaufe long experience has fhewn, that a motion for a fecond trial is the fhorteft, cheapeft, and moft effectual cure for all imperfections in the verdict; whether they arife from the miftakes of the parties themfelves, of their counfel or attornies, or even the judge or jury.

2. ARRESTE of judgment arife from intrinfic caufes, appearing upon the face of the record. Of this kind are, firft, where the declaration varies totally from the original writ; as where the writ is in debt or detinue, and the plaintiff declares in an action on the cafe for an affumpfit: for, the original writ out of chancery being the foundation and warrant of the whole proceedings in the common pleas, if the declaration does not purfue the nature of the writ, the court's authority totally fails. Alfo, fecondly, where the verdict materially differs from the pleadings and iffue thereon; as if, in an action for words, it is laid in the declaration that the defendant faid, “the plaintiff is a bankrupt;” and the verdict finds fpecially that he faid, “the plaintiff will be a bankrupt.” Or, thirdly, if the cafe laid in the declaration is not fufficient in point of law to found an action upon. And this is an invariable rule with regard to arrefts of judgment upon matter of law, “that whatever is alleged in arreft of judgment muft be fuch matter, as would upon demurrer have been fufficient to overturn the action or plea.” As if, on an action for flander in calling the plaintiff a Jew, the defendant denies the words, and iffue is joined thereon; now, if a verdict be found for the plaintiff, that the words were actually fpoken, whereby the fact is eftablifhed, ftill the defendant may move in arreft of judgment, that to call a man a Jew is not actionable: and, if the court be of that opinion, the judgment fhall be arrefted, and never entered

VOL. III.

B b b

for

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Ch. 24.
for the plaintiff. But the rule will not hold e converfo, “that every thing that may be alleged as caufe of demurrer will be good in arreft of judgment:” for if a declaration or plea omits to ftate fome particular circumftance, without proving of which, at the trial, it is impoffible to fupport the action or defence, this omiffion fhall be aided by a verdict. As if, in an action of trefpafs, the declaration doth not allege that the trefpafs was committed on any certain day ^r; or if the defendant juftifies, by prefcribing for a right of common for his cattle, and does not plead that his cattle were levant and coucbant on the land ^s; though either of thefe defects might be good caufe to demur to the declaration or plea, yet if the adverfe party omits to take advantage of fuch omiffion in due time, but takes iffue, and has a verdict againft him, thefe exceptions cannot after verdict be moved in arreft of judgment. For the verdict afcertains thofe facts, which before from the inaccuracy of the pleadings might be dubious; fince the law will not fuppofe, that a jury under the infpection of a judge would find a verdict for the plaintiff or defendant, unlefs he had proved thofe circumftances, without which his general allegation is defective ^t. Exceptions therefore, that are moved in arreft of judgment, muft be much more material and glaring than fuch as will maintain a demurrer: or, in other words, many inaccuracies and omiffions, which would be fatal, if early obferved, are cured by a fubfequent verdict; and no fuffered in the laft ftage of a caufe, to unravel the whole proceedings. But if the thing omitted be effential to the action or defence, as if the plaintiff does not merely ftate his title in a defective manner, but fets forth a title that is totally defective in itfelf^u, or if to an action of debt the defendant pleads not guilty inftead of nil debet^w, thefe cannot be cured by a verdict for the plaintiff in the firft cafe, or for the defendant in the fecond.

.{FS}
^r Carth. 389.
^s Cro. Jac. 44.
^t 1 Mod. 292.
^u Salk. 365.
^w Cro. Eliz. 778.
.{FE}
.P 395
PRIVATE WRONGS.
BOOK III.
Ch. 24.
IF, by the mifconduct or inadvertence of the pleaders, the iffue be joined on a fact totally immaterial, or infufficient to determine the right, fo that the court opon the finding cannot know for whim judgment ought to be given; as if, on an action on the cafe in affumpfit againft an executor, he pleads that he himfelf (inftead of the teftator) made no fuch promife^x; or if, in an action of debt on bond conditioned to pay money on or before a certain day, the defendant pleads payment on the day ^y (which, if found for the plaintiff, would be inconclufive, as it might have been paid before) in thefe cafes the court will after verdict award a repleader, quod partes replacitent: unlefs it appears from the whole record that nothing material can poffibly be pleaded in any fhape whatfoever, and then a repleader would be fruitlefs^z. And, whenever a repleader is granted, the pleadings muft begin de novo at that ftage of them, whether it be the plea, replication, or rejoinder, &c, wherein there appears to have been the firft defect, or deviation from the regular courfe^a.

IF judgment is not by fome of thefe means arrefted within the firft four days of the next term after the trial, it is then to be entered on the roll, or record. Judgments are the fentence of the law, pronounced by the court upon the matter contained in the record; and are of four forts. Firft, where the facts are confeffed by the parties, and the law determined by the court; as in cafe of judgment upon demurrer: fecondly, where the law is admitted by the parties, and the facts difputed; as in cafe of judgment on a verdict: thirdly, where both the fact and the law arifing thereon are admitted by the defendant: which is the cafe of judgments by confeffion or default: or, laftly, where the plaintiff is convinced that either fact, or law, or both, are infufficient to fupport his action, and, therefore abandons or withdraws his profecution; which is the cafe in judgments upon a nonfuit or retraxit.

.{FS}
^x 2 Ventr. 196.
^y Stra. 994.
^z 4 Burr. 301, 302.
^a Raym, 458. Salk. 579.
.{FE}

B b b 2

THE

.P 396
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Ch. 24.
THE judgment, though pronounced or awarded by the judges, is not their determination or fentence, but the determination and fentence of the law. It is the conclufion that naturally and regularly follows from the premifes of law and fact, which ftand thus: againft him, who hath rode over my corn, I may recover damages by law; but A hath rode over my cord; therefore I fhall recover damages againft A. If the major propofition be denied, this is a demurrer in law: if the minor, it is then an iffue of fact: but if both be confeffed (or determined) to be right, the conclufion or judgment of the court cannot but follow. Which judgment or conclufion depends not therefore on the arbitrary caprice of the judge, but on the fettled and invariable principles of juftice. The judfment, in fhort, is the remedy prefcribed by law for the redrefs of injuries; and the fuit or action is the vehicle or means of adminiftring it. What that remedy may be, is indeed the refult of deliberation and ftudy to point out, and therefore the ftile of the judgment is, not that it is decreed or refolved by the court, for then the judfment might appear to be their own; but, “it is confidered,” confideratum eft per curiam, that the plaintiff do recover his damages, this debt, his poffeffion, and the like: which implies that the judgment is none of their own; but the act of law, pronounced and declared by the court, after due deliberation and enquiry.

ALL thefe fpecies of judgments are either interlocutory or final. Interlocutory judgments are fuch as are given in the middle of a caufe, upon fome plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the fuit. Of this nature are all judgments for the plaintiff upon pleas in abatement of the fuit or action: in which it is confidered by the court, that the defendant do anfwer over, refpondeat oufters that is, put in a more fubftantial plea ^b. It is eafy to obferve, that the judgment here given is not final, but merely interlocu-

.{FS}
^b 2 Saund. 30.
.{FE}
tory;
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Ch. 24.
tory; for there are afterwards farther proceedings to be had, when the defendant hath put in a better anfwer.

BUT the interlocutory judgments, moft ufually fpoken of, are thofe incomplete judgments, whereby the right of the plaintiff is indeed eftablifhed, but the quantum of damages fuftained by him is not afcertained: which is a matter that cannot be done without the intervention of a jury. As by the old Gothic conftitution the caufe was not completely finifhed, till the nembda or jurors were called in “ad executionem decretorum judicii, ad aeftimationem pretii, damni, lucri, &c^c. This can only happen where the plaintiff recovers; for when judgment is given for the defendant, it is always complete as well as final. And this happens, it the firft place, where the defendant fuffers judgment to go againft him by default, or nihil dicit; as if he puts in no plea at all to the plaintiff's declaration: by confeffion or cognovit actione, where he acknowleges the plaintiff's demand to be juft: or by non fum informatus, when the defendant's attorney declares he has no inftructions to fay any thing in anfwer to the plainfitt, or in defence of his client; which is a fpecies of judgment by default. If thefe, or any of them, happen in actions where the fpecific thing fued for is recovered, as in actions of detinue or debt for a fum or thing certain, the judgment is abfolutely complete. And therefore it is very ufual, in order to ftrengthean a bond-creditor's fecurity, for the debtor to execute a warrant of attorney to any one, empowering him to confefs a judgment by either of the ways juft now mentioned (by nihil dicit, cognovit actionem, or non fum informatus) in an action of debt to be brought by the creditor for the fpecific fum due: which judgment, when confeffed, is abfolutely complete and binding. But where damages are to be recovered, a jury muft be called in to affefs them; unlefs the defendant, to fave charges, will confefs the whole damages laid in the declaration: otherwife the entry of the judgment is, “that the plaintiff ought to recover his damages, (indefinitely) but, becaufe the court know not what

.{FS}
^c Stiernhook de jure. Goth. l. 1. c. 4.
.{FE}
damages
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Ch. 24.
“damages the faid plaintiff hath fuftained, therefore the fheriff is commanded, that by the oaths of twelve honeft and lawful men he enquire into the faid damages, and return fuch inquifition when taken into court.” This procefs is called a writ of enquiry: in the execution of which the fheriff fits as judge, and tries by a jury, fubject to nearly the fame law and conditions as the triial by jury at nifi prius, what damages the plaintiff hath really fuftained; and when their verdict is given, which muft affes fome damages (but to what amount they pleafe) the fheriff returns the inquifition into court, which is entered upon the roll in manner of a poftea; and thereupon it is confidered, that the plaintiff do recover the exact fum of the damages fo affeffed. In like manner, with a demurrer is determined for the plaintiff upon an action wherein damages are recovered, the judgment is alfo incomplete, till a writ of enquiry is awarded to affefs damages, and returned; after which the judgment is completely entered.

FINAL judgments are fuch as at once put an end to the action, by declaring that the plaintiff has either entitled himfelf, or has not, to recover the remedy he fues for. In which cafe if the judgment be for the plaintiff, it is alfo confidered that the defendant be either amerced, for his willful delay of juftice in not immediately obeying the king's writ by rendering the plaintiff his due ^d; or be taken up, capiatur, to pay a fine to the king, in cafe of any forcible injury ^e. Though now by ftatute 5 & 6 W. 7 M. c. 12. no writ of capias fhall iffue for this fine, but the plaintiff fhall pay 6 s 8 d, and be allowed it againft the defendant among his other cofts. And therefore in judgments in the court of common pleas they enter that the fine is remitted, and in the court of king's bench they now take no notice of any fine or capias at all ^f. But if judgment be for the defendant, then it is confidered, that the plaintiff and his pledges of profecuting be (nominally) amerced for his falfe fuit, and that the defendant

.{FS}
^d 5 Rep. 49.
^e Append. N^o. II. §. 4.
^f Salk. 54. Carth. 390.
.{FE}
may
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Ch. 24.
may go without a day, eat fine die, that is, without any farther continuance or adjournment; the king's writ, commanding his attendance, being now fully fatisfied, and his innocence publicly cleared ^g.

THUS much for judgments; to which cofts are a neceffary appendage; it being now as well the maxim of ours as of the civil law, that “victus victori in expenfis condemnandus eft ^h.” Though the common law did not profeffedly allow any, the amercement of the vanquifhed party being his only punifhment. The firft ftatute which gave cofts, eo nominee, to the demandant in a real action was the ftatute of Gloucefter, 6 Edw. I. c. 1. as did the ftatute of Marlbridge 52 Hen. III. c. 6. to the defendant in one particular cafe, relative to wardfhip in chivalry: though in reality cofts were always confidered and included in that quantum of damages, in fuch actions where damages are given; and, even now, cofts for the plaintiff are always entered on the roll as increafe of damages by the court ⁱ. But, becaufe thofe damages were frequently inadequate to the plaintiff's expenfes, the ftatute of Gloucefter orders cofts to be alfo added; and farther directs, that the fame rule fhall hold place in all cafes where the party is to recover damages. And therefore in fuch actions where no damages were then recoverable (as in quare impedit, in which damages were not given till the ftatute of Weftm. 2. 13. Edw. I.) no cofts are now allowed ^k; unlefs they have been expreffly given by fome fubfequent ftatute. The ftatute 3. Hen. VII. c. 10. was the firft which allowed any cofts on a writ of error. But no cofts were allowed the defendant in any fhape, till the ftatutes 23 Hen. VIII. c. 15. 4 Jac. I. c. 3. 8 & 9 W. III. c. 11. and 4 & 5 Ann. c. 16. which very equitably gave the defendant, if he prevailed, the fame cofts as the plaintiff would have had, in cafe he had recovered. Thefe cofts on both fides are taxed and moderated by the prothonotary, or other proper officer of the court.

.{FS}
^g Append. N^o. III. §. 6.
^h Cod. 3. 1. 13.
ⁱ Append. N^o. II. §. 4.
^k 10 Rep. 116.
.{FE}
THE
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BOOK III.
Ch. 24.
THE king (and any perfon fuing to his ufe^l) fhall neither pay, nor receive cofts: for befides that he is not included under the general words of thefe ftatutes, as it is his prerogative not to pay them to a fubject, fo it is beneath his dignity to receive them. And it feems reafonable to fuppofe, that the queen-confort participates of the fame privilege; for, in actions brought by her, fhe was not at the common law obliged to find pledges of profecution, nor could be amerced in cafe there was judgment againft her ^m. In two other cafes an exemption alfo lies from paying cofts. Executors and adminiftrators, when fuing in the right of the deceafed, fhall pay none ⁿ. And paupers, that is fuch as will fwear themfelves not worth five pounds, are, by ftatute 11 Hen. VII. c. 12. to have original writs and fubpoenas gratis, and counfel and attorney affigned them without fee; and are excufed from paying cofts, when plaintiffs, by the ftatute 23 Hen. VIII. c. 15. but fhall fuffer other punifhment at the difcretion of the judges. And it was formerly ufual to give fuch paupers, if nonfuited, their election either to be whipped or pay the cofts^o: though that practice is now difufed ^p. It feems however agreed, that a pauper may recover cofts, though he pay none; for the counfel and clerks are bound to give their labour to him, but not to his antagonifts^q. To prevent alfo trifling and malicious actions, for words, for affault and battery, and for trefpafs, it is enacted by ftatutes 43 Eliz. c. 6. 21 Jac. I. c. 16. and 22 & 23 Car. II. c. 9 §. 136. that, where the jury who try any of thefe actions fhall given lefs damages than 40 s. the plainftiff fhall be allowed no more cofts than damages, unlefs the judge before whom the caufe is tried fhall certify under his hand on the back of the record, that an actual battery (and not an affault only) wan proved, or that in trefpafs the freehold or title of the land came chiefly in queftion. Alfo by ftatute 4 & 5 W. & M. c. 23. and 8 & 9 W. III. c. 11. if the trefpafs were committed


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^l Stat. 24. Hen. VIII. c. 8.
^m F. N. B. 101. Co. Litt. 133.
ⁿ Cro. Jac. 229.
^o 1 Sid. 261. 7 Mod. 114.
^p Salk. 506.
^q 1 Equ. Caf. abr. 125.
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PRIVATE WRONGS.
BOOK III.
Ch. 24.
in hunting or fporting by an inferior tradefman, or if it appear to be willfully and malicioufly committed, the plaintiff fhall have full cofts ^r, though his damages as affeffed by the jury amount to lefs than 40 s.

AFTER judgment is entered, execution will immediately follow, unlefs the party condemned thinks himfelf unjuftly aggrieved by any of thefe proceedings; and then he has his remedy to reverfe them by feveral writs in the nature of appeals, which we fhall confider in the fucceeding chapter.

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^r See pag. 214, 215.
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