Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

Statutes.

27. Eliz. cap. 8. An error in the Kings Bench in an action of debt, detinue, coue∣nant, accompt, action vpon the case, Eiectio∣ne firme, or trespasse first commenced there (where the King is no partie) may at the parties choise be reuersed in the Exche∣quer chamber before the Iustices of the Common place, and such Barons of the Ex∣chequer 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, de∣claration, pleading, processe, verdict, or pro∣ceeding whatsoeuer. And vpon the Iudge∣ment affirmed or reuersed, the Record shall be sent backe into the Kings Bench, to pro∣ceed and award execution thereupon.

The partie grieued with such reuersall or affirmation, may haue a writ of Error in the

Parliament as vpon 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 vpon error in a * 1.1 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 vpon it may bee re∣uersed, * 1.2 and the partie restored to all that he hath lost, that is to say, if it bee the defen∣dant to his damages and whatsoeuer else: if the plaintife, to his title, his action, &c. for an attaint lyeth not till Iudgement bee gi∣uen, * 1.3 and if the Writ beare date before it shall abate. And this lyeth onely vpon a * 1.4 verdict by xij. for if hee lose in a Writ of right no atraint lyeth neither by the Com∣mon 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, & vpon a writ to enquire of dama∣ges * 1.5 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) 1.6 partie himselfe, or (b) 1.7 all the petie Iurie bee dead, or (c) 1.8 all of them but one, the attaint faileth, and lyeth onely vpon a verdict in personall actions other than trespasses: for it seemeth that there was an attaint at the Common Law, be∣cause Westm̄ 1. cap. 37. speaketh of attaints * 1.9 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 perso∣nall, debt, detinue, couenant, and such like: but not in trespasse, for that is giuen by sta∣tute. And the reason why it lay not in an action of Trespasse, is because then vpon re∣uersing 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 haue a writ of right.

The Iurie here called the Grand Iurie, * 1.10 are 24. who are to be warned the first day. And the processe is against the partie som∣mons, * 1.11 resommons, as in a mortdancester, darrein presentment, and Iuris vtrum, a∣gainst the petie Iurie, venire facias and di∣stresse.

The petie Iurie must bee all present * 1.12 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 * 1.13 attaint, as a release, arbitrement, &c. for this

excuseth them of their false oath, but not in abatement of the writ, as another attaint * 1.14 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 giue no more euidence then was giuen at the * 1.15 first. But the defendant in affirmance of the first verdict may.

Notes

• * 1.1

  F. N. B. 17. & 18.
• * 1.2

  18. E. 4. 9.
• * 1.3

  9 ass. Pl. 21.
• * 1.4

  Br. attaint. 42.
• * 1.5

  3••. H. 6. 1. 3. H. 6. 29.
• (a) 1.6

  25. H. 8. Dy. 5 26. ass. Pl. 12.
• (b) 1.7

  13. E. 4. 5.
• (c) 1.8

  34 ass. Pl. 6. 26. ass. Pl. 2.
• * 1.9

  Br. attaint. 42.
• * 1.10

  Old N. B. 111.
• * 1.11

  Old. N B. 112.
• * 1.12

  22. H. 6. 8.
• * 1.13

  35. H. 6. 30.
• * 1.14

  19. ass. Pl. 15:
• * 1.15

  34. H. 8. Dy. 53.