Twelve men, taken at random from the sheriff's book, and, perhaps, of the most ordinary education, if not grossly ignorant-or even a special jury of persons above the rank of the common freeholders (which is resorted to in matters of greater than usual consequence), cannot be so competent to decide a difficult question as a learned and experienced judge, who has gone through an elaborate legal education, and a long course of training in forensic or judicial business. And the frequent occurrence of absurd or grossly erroneous verdicts has sometimes even endangered that traditional veneration in which Englishmen hold trial by jury. It must also be confessed that the political advantages of this celebrated institution are more visible in criminal than in civil proceedings. But, on the other hand, its effect is to relieve the judges from a portion of the judicial function; and thus it is not necessary that they should be so numerous as in countries where the decision of both law and fact is imposed upon the magistrates. The consequence is, that not only the small number of our judges adds greatly to their dignity and the estimation in which they are held, but the crown is enabled to allow them very high salaries, whereby men of the highest eminence in the legal profession are obtained to fill judicial offices. Such men of course acquire a degree of influence over the jurors, who repose the greatest confidence in their ability and character, which enables them, in most cases, to prevent an incompetent jury from falling into any very gross absurdity or injus tice. But, on the other hand, if ever it should be attempted by corrupt or tyrannical judges to overturn the laws of property or the civil rights of the subject, they would probably meet with an obstacle insurmountable in the jurors, the commons of the judicial order. And we may conclude that this is one of those institutions whose

defects are, indeed, easily discovered; though, on the whole, it is valuable and useful as a part of the system of the constitution, which, vesting the entire judicial authority in the crown, has at the same time distributed its exercise among the royal judges and the mass of the people.

The next regular stage of a judicial proceeding, subsequently to arguing a demurrer or issue of law, or the verdict of a jury on an issue of fact, is the judgment of the court. The finding of the jury is entered on the record, and then judgment remains to be given thereon, not by the judge of assize, but by the court in which the cause was originally begun at Westminster.

Judgment, may, however, for certain causes be suspended, or finally arrested; for it cannot be entered till the next term after trial had, and that upon notice to the other party.

say,

The judgment is suspended by granting a new trial, which is done for a variety of causes, wholly extrinsic, arising from matter not appearing upon, and foreign to, or dehors, the record. Thus the court in bank, that is to the full court at Westminster, may be moved to grant a new trial on the ground of the judges having misdirected the jury, or having admitted or refused evidence contrary to law; or on the ground that the jury gave their verdict contrary to the evidence, or on evidence insufficient in law. But with respect to the last-mentioned of these causes, it would supersede the functions of juries entirely, if not confined within certain limits. For this reason, though the verdict was disapproved of by the judge who tried the cause, the court will not disturb it, if there was a contrariety of evidence, which brought the question fairly within the discretion of the jury. The court, in

1 Tidd's Practice, new edit. vol. ii. p. 935.

2 Stephen on Pleading, c. i. p. 104.

granting new trials, does not interfere unless the finding is evidently wrong, and to remedy some manifest abuse, or to correct some manifest error in law or fact. If the jury have misconducted themselves, as by casting lots to determine their verdict, a new trial will be granted. In these and the like instances, the court will (except in very trifling cases2) afford an opportunity for a more satisfactory trial of the issue. A new jury-process consequently issues, and the cause comes on to be tried over again.3

Arrests of judgment arise from intrinsic causes appearing upon the face of the record; as, for instance, where the verdict materially differs from the pleadings, and the issue thereon. If a new trial or arrest of judgment be not granted, the judgment follows, which is the sentence of the law pronounced by the court upon the matter contained in the record; and this judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law.

The next and last regular stage of the proceedings is execution; but before considering that subject, we must see what means the law has provided for reviewing the judgment, and rectifying it if erroneous.

These are two: a writ of audita querela, and a writ of

error.

1. An audita querela 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 defendant has given him a general release, or if the defendant has paid

1 Carstairs v. Stein, 4 Maule and Selw. 192. And see Swinnerton v. Marquess of Stafford, 3 Taunt. 91, 232.

2 Tidd, New Pract. 541.

3 Archbold, Pract. 229, 1st edit.

4 Blackst. Com. b. iii. c. xxiv. p. 393.

the debt to the plaintiff, without procuring the satisfaction to be entered on the record. But the indulgence now shewn by the courts, in granting a summary relief upon motion in cases of such evident oppression, has almost rendered useless the writ of audita querela, and driven it quite out of practice.

2. The principal mode of redress for erroneous judgments in the queen's courts of record is by writ of error to some superior court of appeal; for to amend errors in a base court, not of record, a writ of false judgment lies.2 The writ of error only lies upon matter of law arising upon the face of the proceedings; so that no evidence is required to substantiate 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. It is an original writ, issuing out of the court of chancery, in the nature as well of a certiorari to remove a record from an inferior to a superior court, as of a commission to the judges of such superior court, by which they are authorised to examine the record upon which a judgment. was given in the inferior court; and on such examination to affirm or reverse the same according to law.3

We must, however, not omit to observe that there is also a species of writ of error where the error on the record arises from an error of fact; as, for instance, if the plaintiff or defendant was a married woman at the commencement of the suit, or died before verdict.5 In such case it is necessary to suggest the new fact upon the record, of which the court was not before informed; and

1 Lord Raym. 439.

2 Co. Litt. 288 b. Finch, L. 484.

3 Jenk. Rep. 25. 4 Inst. p. 20. 2 Inst. 40. Yelv. 120. Hardw. 340. As to proceedings on a writ of error, see general rule, Hil. term, 4 Wm. IV.

therefore the error may be rectified in the same court wherein the judgment was given: and this is done by virtue of a peculiar species of writ of error, called the writ coram nobis (that is to say, before the queen), or coram vobis (that is, before the justices), according as the proceedings are in the queen's bench or common pleas.

If the judgment of the court, after the decision of the suit, be not suspended, superseded, or reversed, by one or other of these methods, the next and last step is the execution of that 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. Thus, where the possession of land is awarded to the plaintiff, he has a writ directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so recovered; and in other actions, where the judgment is that something in special be done or rendered by the defendant, then in order to compel him so to do, and to see the judgment executed, a special writ of execution issues to the sheriff, according to the nature of the

case.

Executions in actions where money only is recovered, as a debt, or damages, are of five sorts: either against the body of the defendant, or against his goods and chattels, or against his goods and the profits of his land. But the examination in detail of these different sorts of executions, which are all enforced by means of judicial writs (that is to say, writs issued not out of chancery, in which case they are called original, but out of the court in which the proceedings are had), directed to the sheriff, who is the officer of the superior courts, and bound to execute their sentences, would lead us beyond the scope of this Commentary.