Page:Harvard Law Review Volume 5.djvu/386

37Q HAR YARD LA W RE VIE W. brother has a superior claim in a writ of right, yet he cannot maintain a mortdancestor, for the older brother, and not he, is the nearest heir. It was, therefore, wrong in the justices to give judgment for the younger brother. Accordingly it was now ad- judged as follows; "Because the justices acknowledge that the jurors said that the said Oliver had an older brother named Ralph, and therein have absolved the jurors, and the justices adjudged that Oliver was the next heir on the ground that the said Ralph could not be dominus et /teres whereas this (namely, being domi- nus et heres ) has regard to jus and not to possessio or to the assise of mortdancestor, it is adjudged that the said justices erred in making that judgment, and made a false judgment ; and there- fore the justices are amerced, and the jurors go without day, and Oliver is amerced, and the prior recovers his seisin." ' (c.) It was sometimes found, in preparing to give judgment, that the verdict of the jury was obscure or incomplete ; the judges below had not questioned them enough. In such cases they were re- summoned to the court in banc ad ceitificandum. This was called the certification One sees it in 1232 (Br. N. B. ii., case 887), and 1237 (id. iii., case 1226). In 1290-1 (PI. Ab. 284, col. 2, Suff.), one who had caused the jury to be resummoned for this purpose, being asked in what the jury had been insufficiently questioned or had spoken obscurely, answered by merely re- peating their verdict, which he seems to say is wrong. His ad- versary replied that the verdict is not obscure, and for a plain verdict non potest esse certificatio set pocius attincta and she asks judgment and has it. (d). The attaint at first was but a limited remedy, given only in assises, but it grew by statute and by the discretion allowed to the judges. The first mention of it in the statutes is a mere mention in 1268 (St. Marlebridge, 52 H. III. c. 14), cutting down general exemptions from serving on "assises, juries and inquests," in cases where necessity requires the service, — as it may, said the 1 In 1235-6 (Br. N. B. iii., case 1166), there is a complaint to the king of an error, committed by the justices at Westminster, in giving judgment too quickly against a de- fendant on default, " whereas many distraints should follow . . . before the said Thomas should have recovered on the default." The justices appeared and admitted the facts, but pleaded ignorance, tusciverunt in dicto ne%ocio melius procedere. The judgment was reversed. There was no jury in this case, and nothing is said of any punishment of the judges; "but observe," says Maitland in his note (vol. iii. p. 179) "that proceedings in error are a complaint against the judges who have erred."