PART IV.

CLASS XIII.

Error and False Judgment.

[No. I. ] 52 Henry III. c. 19.-None but the King shall

hold plea of false judgment.

NONE fourt and plea of false judgment, given in the court of his

TONE from henceforth (except our Lord the King) shall hold in 52 Henry III.

tenants; for such plea specially belongeth to the crown and dignity

of our Lord the King.'

[No. II. 13 Edward I. stat. 1. c. 31.-An exception.to

a plea shall be sealed by the justices.

c. 19.

st. 1. c. 31.

W WHEN one that is impleaded before any of the justices doth allege 13 Edward I. an exception, praying that the justices will allow it, which if they 'will not allow, if he that alleged the exception do write the same ex'ception, and require that the justices will put to their seals for a witness, the justices shall so do; and if one will not, another of the company shall. And if the King, upon complaint made of the justices, 'cause the record to come before him, and the same exception be not found in the roll, and the plaintiff shew the exception written, with 'the seal of a justice put to, the justice shall be commanded that he appear at a certain day, either to confess or deny his seal. And if the 'justice cannot deny his seal they shall proceed to judgment according to the same exception, as it ought to be allowed or disallowed.' (1)

(1) For the form and course of proceedings in bills of exceptions, see Bull. N. P. 315; Tidd's Practice, C. 38. See also the view of the subject taken by Lord Redesdale in the case of the lessee of Lawlor v. Murray, 1 Schoales and Lefroy, 75, in which case his Lordship superseded a writ obtained from the cursitor, without order grounded upon this statute, commanding the judges of the King's Bench in Ireland, to affix their seals to a bill of exceptions, against an order for liberty to amend the record; holding, that no officer of the court was warranted in making such writ without special order; and secondly, that if any officer was so warranted, it was not the cursitor. He observed, that the authorities in support of his opinion were few, because the writ itself had been rarely used it had rarely been necessary to resort to it, as the judges would be most likely to seal the bill of exceptions in any case where they ought. In the marginal abstract of the case it is stated, that such writ does not lie where the exception taken is to an order of a court of law, amending one of its own records. Nor semble to any order made upon motion. I do not find this opinion expressed in the body of the report: but it seems in itself to be perfectly correct.

The better opinion seems to be, that a bill of

Lord

exceptions does not lie in criminal cases. The
following summary of the authorities is ex-
tracted from Mr. Phillips's Law of Evidence,
111. "The statute extends to the plaintiff as
well as the defendant, and to a trial at bar as
well as at nisi prius; but it has been doubted
whether it extends to criminal cases.
Coke, in his exposition of the statute, states
that it extends to all actions, real, personal,
and mixed; but of criminal cases he makes no
mention. In the case of Sir Henry Vane, (1
Lev. 68; Kel. 15; 1 Sid. 85.) who was tried
for high treason, the court refused to seal a bill
of exceptions, because, they said, criminal cases
were not within the statute, but only actions
between party and party. From this authority
Mr. Serjeant Hawkins infers only, that a bill
of exceptions is not allowable on an indictment
for treason or felony; Pl. Cro. v. 2. c. 46. s.
210. 'Whether a bill lies not in any criminal
case,' said Lord Hardwicke, 'is a point not
settled; Rex v. Inhabitants of Preston, Rep.
temp. Hind. 251. It was allowed in the case
of the King against Lord Paget and Others, on
an indictment for a trespass; 1 Leon, 5; and
also on an information in the nature of a quo
warranto; Rex v. Higgins and Others, 1 Vent,
366. But Lord Hardwicke, in the case before
referred to, after saying that he had known a

No. III.

14 Edw. III.

st. 1. c. 5.

[No. III. ] 14 Edward III. stat. 1. c. 5.-Delays of judgments in other Courts shall be redressed in Parlia

ment.

"ITE

TEM, Because divers mischiefs have happened for that in divers places, as well in the Chancery as in the King's Bench, the

bill of exceptions allowed in informations in the Exchequer, which are civil suits for the King's debt, added, that it has never been determined to lie in mere criminal proceedings in other courts.

From the language of the statute itself, I certainly should not infer its application to criminal cases. The rule that the King is not bound by the general words of an Act of Parliament would also seem to militate against such construction; and perhaps the cases in the Exchequer, which are in opposition to this application of the maxim, may have passed without discussion or opposition. The general feeling of the profession upon the subject is most strongly evinced by the fact of no such bill of exceptions having been tendered for a very long period of time, although many important questions of criminal law have been discussed with great warmth, and with strong feelings of opposition to the opinions of the court, of which the much agitated question of the functions of the jury in cases of libel, previous to the statute of 32 George III., is perhaps the most prominent instance. Upon referring to the case in 1 Leon. 5, which is the only direct authority alleged in support of the opposite opinion, it appears that the Bishop of Coventry and Lichfield, being indicted for a trespass in the close of Lord Paget, challenged the array, because that he being a lord of Parliament no knight was returned, upon which the Queen's counsel did demur in law; but at last, for expedition, &c. the court delivered to the counsel for the bishop, a bill sealed to secure him the advantage of the said challenge, and the inquest was taken de bene esse. The case was finally disposed of in favour of the defendant upon an objection to the indictment, and no argument or discussion whatever took place as to the general question of the admitting bills of exceptions in criminal cases; but the course seems to have been adopted by general consent at the suggestion of the judge, as the most convenient way of saving the question of challenge. It seems doubtful whether the challenge of the array is quite the proper object of a bill of exceptions, and whether such challenge ought not, independently of the statute, to be introduced on the record, so as to entitle the party to the benefit of a writ of error in case of its being overruled.

The case of the quo warranto in Ventr. seems to give as little direct support to the general right to a bill of exceptions, even in that mixed form of proceeding. That was also the case of a challenge to the jury, on the ground of their not being freeholders. The court held, that the statutes requiring jurymen to have so much freehold, do not extend to corporate

towns. It was then said, that by the common law jurymen were to be freeholders. But the court overruled the challenge; but at the importunity of the counsel they allowed a bill of exceptions, and a verdict passed against the defendants, and afterwards it was moved in arrest of judgment upon the point. But the court would not admit the matter to be debated before them, (though divers precedents of the like nature were offered) because they said they had delivered their opinions before, and the redress might be had upon writ of error.

In this case also it is observable, that there was no discussion as to the general question of a bill of exceptions being admissible in regard to the particular kind of proceeding. The bill of exceptions is stated to be admitted at the importunity of the defendant's counsel; but it is certainly contrary to the general understanding respecting this proceeding, that the admission or rejection of it shall be discretionary in the court; and I apprehend that in all cases where a bill of exceptions is held properly to lie, it is considered as perfectly a matter de jure, to require an acceptance of the tender of it.

Bills of exceptions are in practice not frequently resorted to, which I think is rather to be regretted as far as regards the general interests of legal science, and the due investigation of those principles, upon which it is most important to establish general conclusions of jurisprudence. It is impossible to deny the existence of a certain feeling of disrespect supposed to be connected with them. Of this, one of the strongest proofs is the apology by which they are always accompanied, and the declaration of inoffensiveness with which they are as constantly received; whereas, to have their proper effect and influence in the administration of justice, it is desirable that they should pass without any adventitious notice, and be treated as matter of course in the same manner as a common motion for a new trial. Sir James Burrough, in recording the great quantity of business dispatched in the Court of King's Bench at the period comprised in the first four volumes of his Reports, (insignificant as it was in comparison to the present) and noticing the small proportion of writs in London and Middlesex which afterwards came before the court in the shape of special verdicts, special cases, motions for new trial, or in arrest of judgment, adds that of a bill of exceptions there had been no instance, which certainly affords undeniable evidence of the kind of feeling adverted to.

The advantage arising from the full and deliberate discussion of a question introduced in the record, is strongly exemplified in the

No. III.

14 Edw. III.

st. 1. c. 5.

"Common Bench, and in the Exchequer before the justices as-
signed, and other justices to hear and determine deputed, the
judgments have been delayed, sometime by difficulty, and some-
"time by divers opinions of the judges, and sometime for some
"other cause;" it is assented, established, and accorded, That from
famous case of Bent and Baker, in which
many vague notions respecting the competence
of witnesses, which had before prevailed, were
fully refuted, and the doctrine was reduced to
a plain, general, and intelligible principle. In
cases where the objection to be encountered
relates to evidence supposed to be improperly
received, the party taking the exception can-
not be met by the observation, (which some-
times prevails upon motions for new trials,)
that independently of the evidence objected to,
there was sufficient to warrant the jury to come
to the same conclusion, when possibly the
particular evidence may have been the con-
necting link upon which the credit of all the
rest may have depended. In some cases, as
where the objection is to the want of a proper
stamp, the ground of such objection may be
removed in the event of obtaining a new trial.
The expense attending the proceeding by writ
of error, in which alone a bill of exceptions is
of any avail, is sometimes considered as a rea-
son against resorting to it; but I am inclined
to think, that the expenses of a second trial at
nisi prius would generally exceed those of re-
moving the record; although in this respect
much will in every case depend upon adventi-
tious circumstances. I certainly think that it
would be a considerable improvement if the
law in this respect were altered, and that a
bill of exceptions taken at nisi prius might be
argued in the first instance in the court in
which the action is brought. At the time of
passing the statute, and long afterwards, al-
most all important issues were tried at bar, a
mode of trial which is now almost entirely dis-
continued, and of which I do not remember
three instances in civil cases. The sittings at
nisi prius in Middlesex were not instituted un-
til a comparatively modern period, and the
summary relief given upon motions for new
trials was not introduced until near four cen-
turies after the passing of the Act. The dis-
cussion of exceptions in the same court would
at that time have been very much an appeal ab
eodem ad eundem; whereas at present that ob-
jection would not apply, and the other difficul-
tics at present operating against this mode of
reserving the discussion of a disputed question,
would be in a great measure removed.

ferences to be deduced from such facts must
be also conceded.
See upon this subject,
Wright v. Pindar, Alleyn, 18, cited 2 H. B.
208. The following view of the subject by
Buller, J. in Cocksedge v. Fanshaw, Doug. 134,
(the judgment of the court, in conformity to
which was affirmed in the Exchequer Chamber
and House of Lords, n. ibid.) is very distinct :
"Upon the question,-What is the nature
of a demurrer to evidence? I think Mr. Da-
venport (the counsel for the defendant) has
gone a great way too far. It is the province
of a jury alone to judge of the truth of facts
and the credibility of witnesses, and the party
cannot, by a demurrer to evidence or any other
means, take that province from them, and
draw such questions ad aliud examen. I think
the plain and simple rule is this:-The demur-
rer admits the truth of all facts, which, upon
the evidence stated, might be found by the jury
in favour of the party offering the evidence.
Mr. Davenport puts the case of a special ver-
dict, and says, the reason for a demurrer is,
that the party demurring does not choose to
trust the jury. In a certain degree that is true:
but the reason of not trusting the jury is, be-
cause they may, if they please, refuse to find a
special verdict, and then the facts never appear
on the record. But whether the case comes
before the court on a demurrer to evidence,
or a special verdict, the law is the same. Í
agree with Mr. Wood in his definition of a de-
murrer to evidence, viz. that it admits all mat-
ters of fact which a jury might find, and only
brings the demurrer upon the inference, in
point of law, from those facts before the court."

A demurrer to evidence coincides with a bill of exceptions in the circumstance that it is a means whereby the party can, at his own discretion, introduce the point which he contends for on the record; but the cases in which there is a convenient opportunity of doing so are but unfrequent, and the instances of this procedure are, I apprehend, still more rare than those of bills of exceptions. In order to take this course, not only the truth of the evidence must be admitted, and withdrawn from the jury, but the presumptions and in

The matter was brought to a more precise point by the opinion of the judges, as delivered by Eyre, C. J., in Gibson and Johnson v. Hunter, 2 H. B. 187, 209, in Dom. Proc., in which, after an examination of preceding authorities, he stated it to be the answer of the judges to a question proposed by the House," that upon the state of the evidence given for the plaintiff, it was not competent to the defendants to insist upon the jury being discharged from giving a verdict by demurring to the evidence, and obliging the plaintiff to join in demurrer, without distinctly admitting upon the record every fact and every conclusion which the evidence given for the plaintiff tended to prove."

In cases which can be fairly brought within this rule, and where the matter in dispute is reduced to a plain and distinct point of law, I apprehend that a demurrer to evidence, however unusual, would in many cases be found a very judicious course of proceeding, as well in respect of the interests of the immediate parties as in producing a solemn and deliberate decision upon the legal question.

With respect to special verdicts, these are considered by Sir W. Blackstone, 3 Com. 377,

henceforth at every Parliament shall be chosen a prelate, two earls, and two barons, which shall have commission and power of the King 'to hear by petition delivered to them, the complaints of all those that 'will complain them of such delays or grievances done to them; and they shall have power to cause to come before them at Westminster,