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If, by some of these means, judgment is not arrested within the first four days of the next term after the trial, it is then to be entered on the roll or record. But when judgment is arrested, each party pays his own costs. Judgments are not the judge's determinations, but the sentence of the law, and are of four sorts; first, when the facts are confessed by the parties themselves, and the law is determined by the court: as in the case of judgment on demurrer; secondly, when the law is admitted by the parties, but the facts disputed as in the case of judgment on a verdict; thirdly, when both the law and the facts arising thereon are admitted by the defendant : which is the case of judgment by confession or default; or, lastly, when the plaintiff is convinced that either fact or law, or both, are insufficient to support his action, and therefore abandons or withdraws his prosecution ; which is the case in judgments on a non-suit, or retraxit.
The consequence of judgment is execution, which will follow immediately, unless the party condemned thinks himself unjustly aggrieved by any of these proceedings; and then he has his remedy to reverse them by several writs in the nature of appeals.
The principal method of redress in wrong judgment, by way of appeal, is by a writ of error to some superior court. A writ of error for some supposed material mistake, assigned in the proceedings of a court of record, lies, in the last resort, to the house of Lords, whose decision cannot be reversed, or even reviewed. When judgment has not been suspended, superseded, nor reversed, execution follows, or the law is put in force, according to the nature of the action. The different writs of execution must be sued out within a year and a day after judgment is entered: otherwise the court concludes that the judgment is satisfied and extinct; yet the defendant may be compelled to show cause why the judgment should not be revived, &c.
II. COURTS OF EQUITY.-Although there is some difference with regard to the forms of practice adopted in the court of Chancery, and the equity court of Exchequer, yet the same system of redress is pursued in each.
Equity, in its true and genuine import, is the soul and spirit of all law. Positive law is construed, and rational law is made by it. Nothing more is intended by equity than the sound interpretation of the law: the words of the law itself may, and often are too general, too special, or otherwise defective. In such cases, it is the province of equity to expound their true meaning. However the courts of law and of equity may differ in their outward forms, they rest upon the same substantial foundation. Their proceedings are dissimilar in their mode of proof, the mode of trial, and the mode of relief. But the essential difference between them consists in the different modes of administering justice in each.
With respect to the mode of proof: where facts, or their leading circumstances, depend only on the knowledge of the party, a court of equity ap
plies itself to his conscience; and purges him upon oath with regard to the transaction. The truth being hereby once discovered, the judgment is the same in equity as it would have been had the same facts appeared in a court of law. The mode of trial in courts of equity is by interrogatories, administered to the witnesses; upon which their depositions are taken in writing, wherever they happen to reside. If, therefore, the cause arise in a foreign country, and the witnesses live on the spot; if in cases arising in England the witnesses are abroad, or soon to leave the kingdom; or if witnesses residing at home are aged and infirm: a court of equity may and will grant a commission to examine them.
As to the mode of relief: the want of a more specific remedy than can be obtained in the courts of law, gives a concurrent jurisdiction to a court of equity in a great many instances, as in executing agreements, which a court of equity will cause to be carried into strict execution, instead of giving damages for their non-performance. And in other instances, a more extensive and specific relief may be had in courts of equity than can be obtained in courts of law.
A suit in Chancery commences by preferring a bill to the lord chancellor in the style of a petition, "humbly complaining, showeth to your lordship, your orator A. B. that," &c. setting forth the circumstances of the case at length, as some fraud, trust, or hardship; "in tender consideration whereof, and for that your orator is wholly without remedy at the common law ;" relief is therefore prayed for at the chancellor's hand, and also a process of subpoena against the defendant to compel him to answer upon oath, to all matter charged in the bill, &c. The bill preferred must be signed by counsel as a certificate of decency and propriety. When the bill is filed, process of subpœna is taken out, commanding the defendant to appear and answer to the bill on pain of the forfeiture of £100; and if he do not appear within the time limited by the rules of the court, he is then said to be in contempt: the consequence of which is an attachment. This is a writ in the name of a capias directed to the sheriff, commanding him to attach or take up the defendant, and bring him into court. If the sheriff should return that the defendant non est inventus, that is, was not found, then an attachment with proclamations issues,-which enjoins the sheriff to cause proclamations to be made throughout the county, to summon the defendant upon his allegiance, personally to appear and answer. If this writ should also be returned with a non est inventus, a commission of rebellion is awarded against him for not obeying the king's proclamations, according to his allegiance; and four commissioners, therein named, or any of these, are ordered to attach him wherever they find him, as a rebel to the king's government. If, notwithstanding, a non est inventus be still returned, the court sends a sergeant at arms in quest of him. And if he elude the search of the sergeant also, then a sequestration issues to seize
all his personal estate, and the profits of his real, and to detain them, subject to the order of the court. After an order of sequestration is issued, the plaintiff's bill is to be taken pro confesso, and a decree to be made accordingly. And thus much if the defendant abscond. But if the defendant be taken in any stage of the process, he is transmitted to the Fleet, or other prison, till he put in his appearance, or answer, or perform whatever else this process is issued to enforce. He must also clear his contempts by paying the costs which the plaintiff has thereby incurred.
If the defendant should be a body corporate, the process is by distringas to distrain them of their goods and chattels, rents and profits, till they shall obey the summons or directions of the court. But if the defendant should be a peer of the realm, the lord chancellor sends a copy of the bill together with a letter missive to him, requesting his appearance. If he neglect to appear, he may be served with a subpoena; and if he still continue in contempt, a sequestration issues out immediately against his lands and goods. The same process is pursued against a member of the house of commons, except only that the lord chancellor does not send his letter missive to him. Should the defendant appear regularly and take a copy of the bill, he is then to demur, plead, or answer.
A demurrer in equity is nearly of the same nature as a demurrer in law. It is an appeal to the judgment of the court, whether the defendant shall be bound to answer the plaintiff's bill. If the demurrer be overruled, the defendant is ordered to answer. A plea may be either to the jurisdiction, showing that the court has no cognizance of the cause; or to the person, showing some disability in the plaintiff; as by outlawry, excommunication, and the like; or it is in bar, showing some matter, whereof the plaintiff can demand no relief. An answer in equity courts is the most usual defence that is made to the plaintiff's bill. It is given in on the oath of a commoner, or the honour of a peer or peeress. But when these are amicable defendants, their answer is usually taken without oath, by the plaintiff's consent. If the defendant live within twenty miles of London, his answer must be obtained by swearing him before one of the masters of the court; if he reside farther off, there may be a commission to take his answer in the country, where the commissioners administer to him the usual oath. The answer being then sealed up, is carried by one of the commissioners up to the court, or is sent by a messenger, who swears he received it from one of the commissioners, and that the same has not been opened or altered since he received it. The answer must be signed by counsel, and must either deny or confess all the material parts of the bill, or it may confess and avoid; that is, justify or palliate the facts. If none of this be done, the answer may be objected to as insufficient, and the defendant be compelled to put in a more satisfactory one. In his answer the defendant may pray to be dismissed the court; but if he have any relief to
pray against the plaintiff, he must do it by an original bill of his own, called a cross bill. After an answer is put in, the plaintiff upon payment of costs, may amend his bill; either by adding new parties or new matter; and the defendant is obliged to answer afresh to such amended bill.
If the plaintiff now find sufficient matter confessed in the defendant's answer on which to ground a decree, he may proceed to the hearing of the cause, upon bill and answer only ;-but in that case, he must take the defendant's answer to be true in every point. Should this not be the case, the plaintiff is then to reply generally to the answer, averring his bill to be true, certain, and sufficient, and the defendant's answer to be the reverse; which he is ready to prove as the court shall award. Upon which the defendant rejoins, averring the like on his side, which is joining issue upon the disputed facts. The next step is to prove these facts; which is done by examining witnesses, and taking their depositions in writing. The witnesses near London are examined at an office appointed, and those in the country by commissioners. When all the witnesses are examined, the depositions may be published. After which they are open for the inspection of all the parties, and copies may be taken. The cause is now ripe to be set down for hearing; which may be done at the procurement of the plaintiff or defendant, either before the lord chancellor or the master of the rolls, according to the direction of the clerk in court, the nature of the suit, and the arrival of causes depending before each. The decrees of the master of the rolls are valid, but subject to be discharged or altered by the chancellor, and cannot be enrolled till they are signed by his lordship.
The method of hearing causes in court is this: the parties on both sides appearing by their counsel, the plaintiff's bill is first opened, and the defendant's also by the junior counsel on each side. After which the plaintiff's leading counsel states the case, the matters in issue, and the points of equity thereon arising. Then such depositions as are called for by the plaintiff are read by one of the six clerks; and the plaintiff may also read any part of the defendant's answer, and after this, the rest of his counsel proceed to make their observations and arguments. The defendant's counsel then goes through the same process for him, except that they may not read any part of his answer; and the counsel for the plaintiff are heard in reply. The court then pronounces the decree, adjusting every point in debate according to equity and good conscience. If either party think himself injured by the decree, he may petition the court for a rehearing; but the petition must be signed by two respectable counsel, certifying that it is their opinion, that the cause is proper to be reheard. But after the decree is once signed and enrolled, it cannot be reheard or rectified, but by a bill of review or by appeal to the house of lords.
A bill of review may be had upon apparent error in judgment appearing upon the face of the decree; or by special leave of the court, upon
oath made of the discovery of new matters or evidence which could not be possibly had or used at the time when the decree passed. But the dernier resort of the party who thinks himself aggrieved, is an appeal to the house of lords. This is effected by petition to that high court, and not by writ of error. But no new evidence is admitted in the house of lords, upon any account.
III. PUNISHMENT.-It may not be uninteresting now to inquire into the nature of crimes and their punishment. In the preceding article, those offences have been considered which arise between man and man: we shall now consider the criminal law or pleas of the crown. The king is the proper prosecutor for every offence, because as he is the sovereign and head of all estates and classes in the nation, he is supposed to be personally injured when any of the great family of which he is the head and father personally suffers.
A crime is an act either committed or omitted in breach of a public law, which either forbids or commands it.
A misdemeanor is a term of a milder import, and signifies any indictable offence which does not amount to felony; such as perjury, battery, libels, conspiracies, &c.
Laws are necessarily enacted for the good government and security of the state, and for the punishment of those who commit any crime; and as the king enacts these laws by the advice and consent of his great council, the three estates of parliament, it follows as a matter of course, that he is armed with the power of enforcing them. "He beareth not the sword in vain; for he is the minister of God, a revenger to execute wrath upon him that doeth evil." Rom. xiii. Punishments have been devised, denounced, and inflicted by human laws in consequence of the disobedience of those who have been guilty of such outrages, as, if permitted with impunity, would soon loosen all the bands of society. But there is no law, human or divine, which empowers private individuals or parties, being subjects, to assume at their own hands the right of executing justice, either "between plea and plea, or stroke and stroke," inasmuch as the divine right of demanding blood for blood was conferred by God on Noah, as the universal sovereign and his sons: and from them naturally descending, as an undoubted prerogative of their crown, on all sovereign princes, and who have in consequence exercised this right in all ages, both civilized and barbarous, to the entire prevention of the people assuming to themselves the privilege of avenging their own quarrels, far less of executing public justice, and which in no age or country has ever been disputed.
Human punishment may be considered with regard to its power, end, and measure.
With respect to the power or right of the sovereign to inflict punishment; every one must at once see the mischief that would arise, if men were