* We have thus traced the history of a suit through all the stages [109] of its progress: many of these by consent of the parties, or the natural requirements of the case, are often omitted, and the duration of the suit proportionately shortened. It only remains here to notice those cases where, by special legislative enactment, proceedings in chancery are taken either by a shortened form of suit, or by summary application without suit. Where the object of the suit is the administration of the personal estate of a deceased person, or even in certain cases his real estate, a decree for the administration may be obtained without filing a bill, but by a simple summons in chambers served upon the executor or administrator, or a devisee of real estate entrusted by the will with a power of sale (r).

From what we have recently said, in these cases the main value of the proceedings depends upon what takes place after decree, therefore it is a great advantage to avoid the delay and expense of the pleadings and other matters which in a regular suit precede the decree. In most of the other cases to which reference was made in the last chapter (8), the summary application to the court is made by a petition, entitled or headed with the name of the act, and of the name of the subject-matter of the proceeding. The only case in which a summary application of this kind is, according to the practice, made by a simple motion, is where the application is to rectify the register of a joint-stock company, under the 35th section of the Companies' Act, 1862. But sometimes the method of proceeding by summons, for the purpose of originating proceedings, is adopted, as in a case under the Charitable Trust Act, 1853 (t).

*CHAPTER VII.

THE SUPERIOR COURTS OF LAW.

[*110]

FOLLOWING the plan indicated in the three preceding chapters, we shall next consider the superior courts of common law, their jurisdiction, and the proceedings in an action-of which subjects that first mentioned will, in anticipation of organic changes in this part of our system of judicature, be very briefly noticed.

By the ancient Saxon constitution there was only one superior court of justice in the kingdom; and that court had cognisance both of civil and spiritual causes: viz. the wittena-gemote, or general council, which assembled annually or oftener, wherever the king kept his Christmas, Easter, or Whitsuntide, as well to do private justice as to consult upon public business. After the Conquest the ecclesiastical jurisdiction was gradually diverted into another channel; and a court was established which sat in the king's hall, thence called by

(r) See 15 & 16 Vict. c. 86, ss. 45, 47. Where the only question is one of construction of a document or of title a special case may be

VOL. II. - 13

stated under Sir George Turner's Act, 13 &
14 Vict. c. 35.

(8) Pages 79-82.
(t) Cons. Order, xli. r. 10.

*

Bracton (a), and other ancient authors, aula regia, or aula regis (b). This court was composed of the king's great officers of state resident in [* 111] his palace, and usually attended on his person: such as the lord high constable and lord marshal, who chiefly presided in matters of honour and of arms; determining according to the law military and the law of nations. Besides these, there were the lord high steward, and lord great chamberlain; the steward of the household; the lord chancellor (c); and the lord treasurer, who was the principal adviser in all matters relating to the revenue. These high officers were assisted by certain persons learned in the laws, who were called the king's justiciars or justices; and by the greater barons of parliament, who sat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. All these in their several departments transacted secular business, criminal and civil, and likewise attended to matters connected with the revenue: whilst over all presided one special magistrate, called the chief justiciar (d) or capitalis justiciarius totius Anglia; who was also the principal minister of state, the second man in the kingdom, and by virtue of his office guardian of the realm in the king's absence. This officer, from the plentitude of his power, grew at length both obnoxious to the people and dangerous to the government which employed him (e).

Origin of the courts of law.

The aula or curia regis being bound to follow the king's household in his progresses and expeditions, the trial of common causes therein was found very burdensome to the subject. Wherefore king John, who dreaded three superior also the power of the justiciar, readily consented to that article which forms the eleventh chapter of Magna Carta, and enacts, that "communia placita non sequantur curiam * regis, sed teneantur [* 112] in aliquo loco certo." This certain place was established at Westminster, where the aula regis originally sat, when the king resided in that city; and to this article of the great charter we owe the institution of the court of common pleas, which has ever since remained stationary in Westminster Hall. In like manner, Philip the Fair, king of France, about the year 1302 fixed the parliament of Paris to abide constantly in that metropolis; which before used to follow the person of the king wherever he went, and in which he himself used frequently to decide the causes that were there depending; but all were then referred to the sole cognisance of the parliament and its learned judges. And thus also in 1495, the Emperor Maximilian I. fixed the imperial chamber (which before always travelled with the court and household) to be constantly held at Worms, whence it was afterwards translated to Spire (ƒ). Over the court of common pleas a chief judge and other justices were appointed; with

(a) L. 3, tr. 1, c. 7.

(b) This court (says Mr. Millar, Eng. Gov. vol. ii. p. 108) corresponded in constitution and origin with that tribunal which, after the accession of Hugh Capet, was gradually formed out of the ancient parliament of France. It corresponded also with the Aulic council which, after the time of Otho the Great, arose out of the Diet of the German Empire. There is reason to believe that in every considerable European kingdom the progress of the feudal system gave rise to a similar institution, which became detached from the national council by connivance,

jurisdiction to hear and determine all pleas of land, and wrongs merely civil between subject and subject. Which critical establishment of this principal court of common law, at that particular juncture and that particular place, gave rise to the inns of court in its neighbourhood; and, thereby collecting together the whole body of the common lawyers, enabled the law itself to withstand the attacks of the canonists and civilians, who laboured to extirpate and destroy it (g).

The aula regia being thus stripped of so considerable a branch of its jurisdiction, and the power of the chief justiciar being also considerably curbed by the great charter, the authority of both began to decline apace under the long and troublesome reign of Henry III. And the other several offices of the chief justiciar were under Edward I. (who new modelled the frame of our judicial polity) subdivided and broken up into distinct* courts of judicature. [*113 ] A court of chivalry was erected, over which the constable and marshal presided; as did the steward of the household over another, constituted to regulate the king's domestic servants. The high steward, with the barons of parliament, formed an august tribunal for the trial of delinquent peers; and the barons reserved to themselves in parliament the right of reviewing the sentences of other courts in the last resort. The distribution of common justice, moreover, between man and man was thrown into so provident an order, that the great judicial officers were made to form a check upon each other: the court of chancery issuing writs framed in accordance with established precedents and under the great seal to the other courts (h); the common pleas being allowed to determine causes between private subjects; the exchequer managing the royal revenue; and the court of king's bench (i) retaining such portion of the jurisdiction of the aula regis as was not cantoned out to other courts, and particularly the sole cognisance of pleas of the crown or criminal causes. For pleas or suits are regularly divided into two sorts: "pleas of the crown," which comprehend all crimes and misdemeanors, wherein the crown (on behalf of the public) is the plaintiff; and "common pleas," which include all civil actions depending between subject and subject. The former of these were originally within the exclusive jurisdiction of the court of king's bench, the latter of the court of common pleas, which is a court of record, and is styled by sir Edward Coke (k) the lock and key of the common law; for therein only can real actions, as to which we shall hereafter inquire, be brought: and all other, or merely personal, pleas between man and man are likewise there determinable; though in regard to these latter the two other superior courts have now concurrent authority.

[*114]

*The three superior courts of common law take rank, beginning with the lowest, in the following order: the exchequer, the common pleas, the queen's bench; and as to each of these, which is now presided over by six judges (1), some few additional details are subjoined.

The

bling a

exchequer, saccharium, was so called from the chequered cloth, resemchess-board, which covered the table there: and on which, when certain of the king's accounts were made up, the sums were marked and scored with counters. It consists of two departments: the

Exchequer.

(9) Ante, vol. i. Introd. sect. i. (h) Ante, p. 30.

(i) This court is called the queen's bench n the reign of a queen, and during the pro

tectorate of Cromwell it was styled the upper bench.

(k) 4 Inst. 99.

(7) 31 & 32 Vict. c. 125, s. 11.

receipt of the exchequer, which manages the royal revenue, and with which these Commentaries have no concern; and the court or judicial part.

The court of exchequer seems first to have sat apart from the great council in the king's palace for the purpose of auditing his accounts, compelling payment of such feudal dues as were owing to him, and issuing writs applicable where the rights of the subject were withheld (as often happened in early times) by the officers or ministers of the crown. To this court all matters relating to the king's revenue were assigned for determination, and prior to the stat. of Rutland (10 Edward I.) it had acquired jurisdiction in some personal actions not at all affecting the rights or revenues of the crown. This appears, from the wording of the act in question, s. 3 of which enacts, that no plea shall be holden or pleaded in the exchequer unless it do specially concern the crown, its ministers or agents, in a matter appertaining to the king's exchequer. This statute, however, failed in consequence of an artifice in effecting its object, for it was held not to apply to suits between subjects who were debtors to the crown, and any suitor was permitted falsely to suggest in the process which he sued out that he was such a debtor, which at once gave the court jurisdiction (m).

*The court of exchequer is presided over by a lord chief baron and five [*115] puisne barons (n), and still retains, besides its jurisdiction over ordinary personal actions, peculiar and exclusive cognisance of matters of revenue (0) -matters involving the payment of stamp, succession, or other duties to government, and matters arising out of the laws regulating the customs and excise brought before it by information at suit of the attorney-general. If, therefore, an action touching any of the matters just specified should be brought in the court of queen's bench or common pleas, it will, on motion, be removed thence into the exchequer; indeed, it is a contempt of this latter court to proceed elsewhere in respect of any matter which lies within its own peculiar jurisdiction (p).

The court of exchequer formerly exercised an extensive equity jurisdiction, which, by statute 5 Vict. c. 5, s. 1, was for the most part (q) abolished and transferred to the court of chancery.

It must not be supposed that the king's council did, even in the earliest. times, itself hear and determine the great majority of cases, civil or criminal, throughout the land; for, besides the local administration of justice by [* 116] *the county or shire court, and by the hundred court (r), assizes were, so early as the reign of Hen. 1., occa

Common Pleas.

(m) The writ upon which proceedings in the court of exchequer were grounded was called a quo minus; and by it the plaintiff suggested that he was the king's farmer or debtor, and that the defendant had done him the injury or damage complained of; quo minus sufficiens existit, by which he was the less able, to pay the king his debt or rent. (See Sellon's Pract. Introd. p. 32.) This fiction, as well as the form resulting from it, was abolished by stat. 2 Will. 4, c. 39.

(n) 31 & 32 Vict. c. 125, s. 11.

(0) See 22 & 23 Vict. c. 21. Att.-Gen. v. Sillem, Rep. ed. 1863.

(p) See Mountjoy v. Wood, 1 H. & N. 58; Att. Gen. v. Kingston, 8 M. & W. 163.

(7) Except perhaps-for some doubt exists upon this point-in revenue cases. Att.-Gen. v. Halling, 15 M. & W. 687; Corp. of London v. Att.-Gen., 1 H. L. Ca. 440. See 1 Chitt. Arch. Pr. 11th. ed. p. 2.

Suits on behalf of the Duke of Cornwall are instituted by way of information, filed by the attorney-general for the duchy, whose right to sue by information, in the nature of an English bill, on the equity side of the court of exchequer, was established in the case of Att. Gen. of the Prince of Wales v, St. Aubyn, Wightw. 36.

(r) Post.

sionally held by justices itinerant, and a practice was early resorted to of issuing special commissions of oyer and terminer at the suit of individuals when any extraordinary outrage had been committed. However, appeals lay in many cases to the king's council from decisions of the justices, and great expense and delay must have been thus occasioned to suitors who were compelled to resort to the supreme court. The hardship thus caused was partially remedied by the provision in Magna Carta already noticed (s), in virtue whereof the common pleas became stationary at Westminster. Nevertheless, suitors were still compelled to come thither for justice from very distant places, and to remedy this inconvenience the statute of Westm. II. (13 Edw. 1, c. 10), was passed, which enacted, that any person impleaded before the justices at Westminster, or at the assizes, might make a general attorney to sue for him. And to this statute it is thought that the habitual employment of attorneys of right in the courts at Westminster may properly be ascribed (†).

The court of common pleas has at this day a special cognizance of real actions (u). It is also the court of appeal from the decisions of revising barristers under the 6 & 7 Vict. c. 18; further it has some peculiar functions to discharge under the act for the abolition of fines and recoveries (x), and under "the Railway and Canal Traffic Act, 1854" (y). (478)

The court of queen's bench (so called because the sovereign used formerly to sit there in person, or at all events was theoretically present there, the style of the court still being coram ipsú reginá,) is (irrespective of appellate tribunals) the supreme court of common law in the

Queen's Bench.

* kingdom consisting of a chief justice and five puisne justices (z), [* 117] who are by their office the sovereign conservators of the peace, and supreme coroners of the land (a). Yet though the sovereign did occasionally, in early times, sit in this court (b), he did not, nor could he determine any cause or motion but by the mouth of his duly constituted judges (c).

The court of queen's bench, which (as we have said) is the remnant of the aula regia, is not, nor can it be, from its very nature and constitution, fixed to any certain place, but may follow the queen's person wherever she goes. It has indeed, for some centuries past, usually sat at Westminster, being an ancient palace of the crown; but might remove with the sovereign to York or Exeter, if she thought proper to command it. And we find that, after Edward I. had conquered Scotland, it actually sat at Roxburgh (d). And this moveable quality, as well as its dignity and power, are fully expressed by Bracton, when he says that the justices of this court are "capitales, generales,

(8) Ante, pp. 111, 113.

(t) See 1 Reeves, Hist. Eng. L. p. 169. (u) Post.

(x) 3 & 4 Will. 4, c. 74.

(y) 17 & 18 Vict. c. 31.

(z) 31 & 32 Vict. c. 125, s. 11.

(a) Ante, vol. i. p. 415.

(b) Dr. Henry says that he found no instance of any of our kings sitting in a court of justice before Edw. IV. "Edw. IV. (he adds) in the second year of his reign, sat three

(478) A court or courts of common pleas exist in many of the States of the United States. For a very interesting history of the court of common pleas for the city and county of New York, by Hon. Charles P. Daly, see 1 E. D. Smith, xvii.