CHAP. II.

Judges of King's
Bench, and

Common Pleas.

Barons of Exchequer.

Additional puisne judges.

Of the JUDGES of the SUPERIOR COURTS of Law at WESTMINSTER, and their SUMMARY JURISDICTION, and POWER of making GENERAL RULES, &c.: and of the OFFICERS of the COURTS, and their FEES; TERMS, and RETURNS, &c.

IN the present Chapter it is intended to notice, first, the appointment of additional puisne judges in the superior courts of law at Westminster, and Common Pleas at Lancaster, and the manner in which business is conducted in the bail court, in the King's Bench; secondly, the summary jurisdiction of the judges, at common law, or by statute; thirdly, their power to make general rules for regulating their proceedings, and the rules made by them in pursuance thereof; fourthly, the extension of their jurisdiction to Chester and Wales; fifthly, the separation of the palatine jurisdiction from the bishoprick of Durham, and vesting it in the crown; sixthly, the opening of the court of Common Pleas to the counsel of the other courts, by abolishing the exclusive privileges of serjeants at law; seventhly, the officers of the courts, their duties, and fees, &c.; and lastly, the alterations made in the terms and returns of writs, and respecting holidays, &c.

There were formerly four judges only of the courts of King's Bench and Common Pleas, viz., the Lord Chief Justice, created by writ, and three puisne judges, created by letters patent; who, by the statute 12 & 13 W. III. c. 2, hold their places, quamdiu se bene gesserint, and not, as anciently, durante bene placito. In the court of Exchequer, the judges were the Chief Baron, and three puisne barons, who are created by letters patent, and were formerly barons and peers of the realm. In addition to these judges, it was enacted by the statute 11 Geo. IV. & 1 W. IV. c. 70°, that "whenever his Majesty should be pleased to appoint an additional puisne judge, to "either of his courts of King's Bench, Common Pleas, and Exche

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One to sit apart, for adding or justifying bail,

quer, the puisne judges of such court should sit by rotation in "each term, or otherwise, as they should agree among themselves, "so that no greater number than three of them should sit at the same "time in banc, for the transaction of business in term, unless in the "absence of the Lord Chief Justice, or Lord Chief Baron: and that "it should and might be lawful for any one of the judges of either "of the said courts, when occasion should so require, while the other &c. "judges of the same court were sitting in banc, to sit apart from "them, for the business of adding and justifying special bail, discharging insolvent debtors, administering oaths, receiving decla"rations required by statute, hearing and deciding upon matters on "motions, and making rules and orders in causes and business de"pending in the court to which such judge should belong, in the same manner, and with the same force and validity, as might be "done by the court sitting in banca: And every judge of the said courts, to whatever court he may belong, shall be, and he is thereby accordingly authorized to sit in London and Middlesex, for the trial "of issues arising in any of the said courts; and to transact such "business, at chambers or elsewhere, depending in any of the said "courts, as relates to matters over which the said courts have a "common jurisdiction, and as may, according to the course and practice "of the court, be transacted by a single judge."b In pursuance of Appointment of this statute, an additional puisne judge was, in Michaelmas term 1830, appointed by his present Majesty, to each of his courts of King's Bench, Common Pleas, and Exchequer ; and it has ever since been usual, during term, for one of the puisne judges of the court of King's Bench to sit apart from the other judges, in a court adjoining thereto, commonly called the bail court, or, from the general nature of its business, the practice court, for adding and justifying bail, and other purposes of the act. It has also been usual for the puisne judges of the King's Bench to perform this duty by rotation, and for the same judge to continue in the performance of it during the whole term.

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Every judge may sit in London and Aiddlesex, for trial of issues, and to transact business at chambers, &c

additional puisne judges.

Bail or prac

tice court, in

K. B.

of business

The business in the bail court, which formerly commenced at Arrangement half past nine o'clock, and now commences at ten in the morning, therein. is thus arranged: At the sitting of the court, the oaths are administered to, and declarations received from official persons, barristers, and attornies; then follows the justification of bail; immediately after

For the salaries and retirement allowances, to additional judges, see stat. 11 Geo. IV. & 1 W. IV. c. 70. § 2, 3.

§ 4. and see I Rep. C. L. Com. 27. Phillips v. Drake, Dowl. Rep. 45.

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Barn. & Ad. 377. 7 Bing. 231. 4

Moore & P. 721. 1 Cromp. & J. 285.

d For the origin of the bail court, see Tidd Prac. 9 Ed. 262, 3. Stat. 57 Geo. III. c. 11.

e H. 59 Geo. III. K.B. per Bayley, B and see 1 Chit. R. 1. (a.)

which, (except on Mondays and Thursdays, when the hearing of the insolvents brought up under the Lords' Act, and on Tuesdays and Fridays, when the calling over of the common paper is interposed between the justification of bail and the motions,) the judge goes through the bar twice, beginning each time with the senior barrister, and disposing, in his going through the bar the first time, of applications for rules nisi, and rules absolute in the first instance, or upon no cause being shewn ; and in his doing so the second time, hearing such contested and other motions, as may be submitted to his decision. The peremptory paper, if any, is then called over: This paper consists of a selection made by the clerk of the rules, at his discretion, from the rules enlarged from a former term: After the peremptory paper is disposed of, or, if there should be no peremptory paper, after the judge has gone through the bar the second time, he calls upon the bar again in their order, and continues to hear motions generally, if there should happen to be enough to occupy the time on nisi prius days, until the assembling of the jury; and on other days, until the chamber business, which commences in Serjeant's Inn at three o'clock in the afternoon, requires his attendance at that placea.

In the Common Pleas and Exchequer, there is no separate court or place appointed, as in the King's Bench, for business to be transacted before a single judge. In the Common Pleas, it is usual for one of the puisne judges to attend in court, at a quarter before ten o'clock in the morning, during term, to take justifications of bail, &c.; but the whole of the practical business is at present usually transacted before all the judges, or such of them as are present, in full court. In the Exchequer, one of the puisne barons attends in court at ten o'clock every morning during term, except on the last day, when he sits in the Exchequer chamber, for the purpose of administering oaths, and taking justifications of bail, and such motions as may be brought before him And, by a late regulation, bail must be in attendance at the sitting of the court at ten o'clock, except on the first and last days of term; when they may be justified at any time during the sitting of the court.

The rules and orders made by a single judge, in causes and business depending in the court to which he belongs, are declared by the act, to have the same force and validity as if made by the court sitting in bance: And where a rule nisi was obtained for an attachment against a defendant, for nonpayment of money pursuant to an award, and on argument in the bail court, the judge there made the

a Chapm. K. B. 2 Ed. 76, 7. 1 Leg. Obs. 411, 12. and see 3 Chit. Gen. Pr. 14, 15.

b 1 Cromp. & J. 467. and see 3 Price, 591. Price, Excheq. Prac. 69.

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Ante, 23.

rule absolute, and the sheriff levied for the amount claimed; after which a rule was obtained, calling on the sheriff to shew cause, among other things, why he should not retain the sum levied till further order of the court; and upon such rule being discussed in the full court, it was admitted that the object in applying for the rule was to obtain a revision of the judgment given in the bail court; it was holden that the matter, having been decided by a judge in the latter court, ought not now to be re-heard; and that the proceedings since the attachment, did not entitle the defendant to re-open ita.

judges, in

Common Pleas at Lancaster.

In the Common Pleas at Lancaster, by a late statute, for improving Appointment of the practice and proceedings in that court, reciting that it would tend to further the administration of justice, if more of the judges of the superior courts at Westminster were appointed justices for all manner of pleas within the county palatine of Lancaster, it is enacted, that "it shall and may be lawful for his Majesty, in right of his duchy and

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county palatine of Lancaster, from time to time to nominate and ap"point all or any of the judges of the superior courts at Westminster, "to be judges of the court of Common Pleas of the county palatine of "Lancaster: Provided nevertheless, that the judges before whom the "assizes for the said county palatine of Lancaster shall from time to "time be held, and their respective officers, shall alone be entitled to "the fees and emoluments heretofore received by the judges of the "said county palatine, and their officers."

The general jurisdiction of the superior courts of law at Westminster, in personal actions, having been fully treated of in the ninth edition of the Practice, it may be proper to notice, in this Chapter, some of the principal heads of their summary jurisdiction, at common law or by statute; with the power of the courts to make general rules for the regulation of their proceedings, and the rules made by them in pursuance thereof. At common law, the courts at Westminster have a summary jurisdiction over their own officers, and sheriffs, &c., who are to some purposes considered as their officers; and also over attornies, and

* Rex v. Sheriff of Devon, 2 Ad. & E. 296. 5 Nev. & M. 416. (b.) S. C. and see Rex v. Archbishop of York, 3 Nev. & M. 453. 1 Ad. & E. 394. S. C. Parks v. Edge, I Cromp. & M. 429. 3 Tyr. Rep. 364. Parker v. Ade, 1 Dowl. Rep. 643. S. C. Doe d. Poole, v. Errington, 3 Nev. & M. 646. 671. per Littledale, J. 3 Chit. Gen. Pr. 44.

b 4 & 5 W. IV.'c. 62. § 24.

Tidd Prac. 9 Ed. 37, 8. And see further, as to the general jurisdiction of the superior courts of law at Westminster, 1 Rep. C. L. Com. 72, &c. 2 Chit. Gen. Pr. 311, &c.; and as to their summary jurisdiction, id. 327, &c.

4 Tidd Prac. 9 Ed. 38. Sup. thereto, 52, 3.

e Tidd Prac. 9 Ed. 58, 306, &c.

f Id. 85, &c.

Setting aside,

ceedings.

matters in difference between them and their articled clerks. But

and staying, pro- the principal branch of the summary jurisdiction of the judges is that which they exercise over the proceedings in their own courts, in setting them aside, at the instance of the party, for irregularity b; or staying them, when defective, as where the cause of action is frivolous, or the action brought or conducted upon insufficient grounds, contrary to good faith, or without proper authority. There are also other grounds for staying the proceedings at common law, not absolutely, but for a time, or until something be done for the benefit of the defendant: These are, pending a writ of error; until security be given for the payment of costs; or until the costs are paid of a former action for the same caused; or on payment of debt and costs. And where it appears that a warrant of attorney has been obtained by fraud, or misrepresentation, or for a corrupt and usurious consideration, &c., the courts will order it to be delivered up, and set aside the judgment, and proceedings, if any, which have been had under it.

Summary jurisdiction, by sta

tute.

The courts have also a summary jurisdiction given them by statute, over the proceedings in particular cases; as on compounding penal actions, by the 18 Eliz. c. 5. § 3.8; concerning informations upon penal statutes, by the 21 Jac. 1. c. 4. §. 1. h; in actions for bribery, upon the clause of discovery, or if there has been any wilful delay in prosecuting the action, by the 2 Geo. II. c. 24; and for penalties on acts relating to the customs or excise, by the 26 Geo. III. c. 77. § 13k; respecting lotteries, by the 36 Geo. III. c. 104. § 38; and stamp duties, by the 44 Geo. III. c. 98. § 10.1 in actions on bail bonds, by the 4 Ann. c. 16 § 20m; and on replevin bonds, by the 11 Geo. II. c. 19. § 23. in ejectment, by landlord against tenant, on a clause of reentry for non-payment of rent, &c. by the 4 Geo. II. c. 28. § 4.o; or by a mortgagee, on the 7 Geo. II. c. 20. § 1., for the recovery of the possession of mortgaged premises, or, in debt on bond for the payment of mortgage money, or performance of covenants in the mortgage deed, when no suit in equity is depending for a foreclosure or redemption P; and for punishing gaolers, bailiffs, and others employed in the execution of process, for extortion, &c., by the Lords' act, 32 Geo. II. c. 28. § 12.