from paying costs when plaintiffs, but shall suffer other punishment at the discretion of the judges. And it was formerly usual to give such paupers, if nonsuited, their election either to be whipped or pay the costs, though that practice is now disused. It seems, however, agreed that a pauper may recover costs, though he pays none; for the counsel and clerks are bound to give their labour to him, but not to his antagonist. Again, to prevent trifling and malicious actions, for words, for assault and battery, and for trespass; the plaintiff, if he recovers less than 40s., is not entitled to costs unless the judge certifies that the action was brought to try a right, besides the mere right to recover damages, or that the trespass or grievance was wilful and malicious. And in all actions for an alleged wrong, in which less than five pounds is recovered, the judge may certify to deprive the plaintiff of costs altogether. In actions upon judgments the plaintiff recovers no costs, and when he might have sued in the county court, but has resorted to a superior court, he is also, in certain circumstances, deprived of his costs, unless in either class of cases the court or a judge shall otherwise order.

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 other proceedings in the nature of appeals, which we shall consider in the succeeding chapter.

CHAPTER XV.

OF PROCEEDINGS IN THE NATURE OF APPEALS. Audita querela-Error-Bail in error-Assignment of errors-Judgment— Writ of restitution-Error on special case-Courts of error.

If the party condemned thinks himself unjustly aggrieved, he has now two modes of questioning the propriety of the judgment by proceedings in the nature of appeals, viz., by writ of auditâ querelâ; or by bringing error.

I. An auditâ querelâ is where a defendant, against whom judgment is recovered, and 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; as if the

plaintiff has given him a general release; or if the defendant has paid the debt to the plaintiff, without procuring satisfaction to be entered on the record. In these and the like cases, wherein the defendant has good matter to plead, but has 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, must always be before judgment, an auditâ querelâ lies to be relieved against the oppression of the plaintiff. It is a writ directed to the court, stating that the complaint of the defendant has been heard, auditâ querelâ defendentis, 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. But the indulgence now shown by the courts in granting a summary relief upon motion, in cases of such evident oppression, has almost rendered useless the writ of auditâ querelâ, and driven it quite out of practice; and that the courts may not be deprived of the opportunity of giving this summary relief, this writ cannot now be sued out without a rule of court or judge's order to that effect.

II. The principal method of redress for erroneous judgments in the courts of common law at Westminster, is by alleging, or as it is called, bringing error in some superior court of appeal.

Error lies for some supposed mistake in the proceedings of a court of record; for to amend errors in an inferior court, not of record, a writ of false judgment lies. 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 a new trial, to correct the mistakes of the former verdict.

This proceeding is the only mode of giving effect to a bill of exceptions, for the judgment of the court after the trial of the issues of fact being given on the verdict of the jury irrespective altogether of the bill of exceptions, to reverse that judgment, error must be brought; in order that the whole record, to which the bill of exceptions is then attached, may be before the court of error, which has then all the materials for a proper judgment.

On the principle previously stated, that every subject when wronged is to apply to the sovereign as the fountain of justice, for that redress which the law affords him for the particular injury complained of, error was formerly brought in all cases by the party grieved suing an original writ out of chancery; which, in suits in the superior courts at Westminster, was addressed to the chief justice, and, after reciting that in the record and proceedings and

also in the giving of judgment in the action, manifest error, as it was said, had intervened, it commanded the chief justice to send a transcript of the record and other proceedings under his seal to the judges of the court of Exchequer Chamber, that the same being examined by them, they might cause to be further done thereupon, what of right ought to be done. When error was brought in the House of Lords upon the judgment of the Exchequer Chamber, the writ directed the transcript and proceedings to be returned" in our present parliament;" that the same being reviewed, we may "further cause to be done thereupon, with the assent of the lords "spiritual and temporal in the same parliament, for correcting that error, what of right, and according to the law and custom of "England, ought to be done." To the writ of error, the Lord Chief Justice, or in case of error brought upon the judgment of inferior courts, the judge of the court to which the writ of error was directed, made a return of a transcript as directed, and the record and proceedings were thus at once brought before the court of error for review.

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A simpler and less expensive method has, however, been provided for bringing error on the judgments of the superior courts, by making it a step in the cause; the writ of error in all actions therein being dispensed with, though still necessary in certain other proceedings. The party aggrieved now delivers to one of the masters of the court, in which the judgment complained of was given, a memorandum alleging error, which being filed, the master gives the plaintiff in error a note of the receipt thereof; a copy of which, together with a statement of the grounds of error intended to be argued, being served on the opposite party, operates at once as a supersedeas of execution; which cannot issue on the original judgment, except by order of the court or a judge, until default in putting in bail-affirmance of the judgment-discontinuance by the plaintiff in error-or the proceedings being otherwise disposed of, as by judgment of non pros. But if there is no statement of the alleged error, execution may issue; any statement, however frivolous, involving, nevertheless, the necessity of obtaining leave to do so, as it is not for the party himself to decide on its frivolity.

If error be brought to reverse any judgment of an inferior court of record, where the damages are less than fifteen pounds—or, if it is brought to reverse the judgment of any superior court, he that brings it, 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, which are now payable by the vanquished party in all, except a few particular instances. Execution, there

fore, against a defendant will not be stayed, unless within four days of his bringing error, he with two sureties become bound to the plaintiff below, now become the defendant in error, in double the ́amount awarded by the judgment, and also to pay to him all further cost and damages, if the judgment be affirmed or the proceedings in error discontinued.

The plaintiff in error next suggests on the roll that, in the proceedings in the action and the giving of judgment therein, there is error, adding thereto the defendant's denial, or joinder in error; after which the judgment roll is made up and carried into the court of error, which, on examining it awards the proper judgment, if the former was erroneous; unless the defendant in the mean time confesses the error by giving the plaintiff a notice to that effect, on which judgment of reversal may be signed. But if the defendant in error relies upon this proceeding being barred by lapse of time, or by release of error, or other matter of fact, he must give four days' written notice to the other party to assign error, which assignment of error is in the nature of a declaration, stating the grounds on which the plaintiff in error imputes error on the record; nothing being assignable for error that contradicts the record itself; and to this assignment the defendant in error must put in a plea, confessing that the judgment is erroneous, but showing that the plaintiff cannot take advantage of the error; as for instance by showing a release of errors. To the defendant's plea, the plaintiff replies or demurs, and the defendant again demurs or rejoins, so that ultimately an issue of law or in fact is joined, the latter being taken down for trial by the defendant in error by proviso, without his waiting for a default by the plaintiff, as we have seen he is obliged to do in ordinary cases.

The judgment of the court of error may be either in affirmance of the former judgment; or that it be reversed for error in law; or that the plaintiff be barred of his right to bring error, as when a plea of the statute of limitations has been found for the defendant. But the court of error may always give such judgment and award such process as the court below ought to have given, and therefore it may award a repleader, or direct a venire de novo.

When the judgment of the court below is affirmed, or the plaintiff in error non pros'd, the defendant is entitled to damages and costs, as well as to interest upon the sum awarded him by the court below for the time that execution has been delayed; but if the judgment of the court below is reversed, each party must pay his own costs. If, however, execution has been levied on the plaintiff in error for debt or damages, he is entitled to a writ of restitution, in order that he may recover all that he has thereby lost.

III. As error in law can only be brought on matter appearing cn the record, it does not lie to reverse the judgment on a special case, because there nothing appears on the record. But, unless the parties have agreed to the contrary, an appeal, which practically amounts to the same thing, may be brought against the judgment; the proceedings for doing so being, as nearly as may be, the same as in the case of error. And the same method of proceeding by appeal may be resorted to, by either party, where, at the trial, leave has been reserved to move that a verdict or nonsuit be entered, or for a new trial; and the court either refuses or grants the application; for here, as in a special case, nothing whatever appears on the record, and, technically, error cannot be brought.

Error lies from the inferior courts of record in England, existing at the common law, into the Queen's Bench, which is also the court of error and appeal from the judgments of the court of pleas at Durham, the court of common pleas at Lancaster, and the mayor's court of the City of London. 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 proceedings in the nature of appeals.

CHAPTER XVI.

OF EXECUTION.

Writ of habere facias seisinam or possessionem-de clerico admittendo—de retorno habendo-In detinue distringas or scire facias-Writ of capias ad satisfaciendum-Writ of fieri facias-Interpleader-Order to charge stock, &c.-Order to attach debts, &c.-Writ of levari facias-SequestrationWrit of elegit-Writ of extent-Writ of injunction-Writ of mandamus. THE last step in a suit is the execution of the 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 a real action or in ejectment, whereby the seisin or possession of land is awarded to him, the writ of execution is a habere facias seisinam, or writ of seisin, of a free