exclusively over real, personal, and mixed actions between party and party, except in a few cases where the officers of another Court were concerned; and the Court of Exchequer, over all revenue matters. (n) But each of those Courts, by the contrivances alluded to, viz. by the writ of latitat in the King's Bench, supposing a trespass in Middlesex, the writ of quare clausum fregit in the Common Pleas, and the quo minus in the Exchequer, have long assumed a coextensive jurisdiction over all personal actions, when the right of the plaintiff is legal and not equitable, nor spiritual, ecclesiastical, or maritime, nor has arisen out of an illegal capture; (o) so that complainants (subject to a very few exceptions) now have in general, in all personal actions, the option of suing in either of the Courts. (p) CHAP. V. SECT. II. tornies, &c. of each particular court. To this general rule there are exceptions, as that officers (q) Exceptions as to of another superior Court, in respect of their duty to be in officers and at. constant attendance there, and an attorney of another of the superior Courts, in respect of his duty to conduct or defend the causes of his clients there, must be sued in his particular Court, so that he may not be withdrawn from his duty. (r) But where the plaintiff is also such officer or attorney, then his privilege to sue in his own Court prevails against that of the defendant;(s) and though it was held in the King's Bench, that in the latter case the defendant could not be arrested, though he might be sued in the plaintiff's Court; (t) yet the Court of Exchequer in a subsequent case held the contrary, and that attornies and clerks of the Exchequer of Pleas might in that Court arrest as well as sue attornies of another Court. (u) Serjeants and their clerks are also privileged to be sued in the Common Pleas; (x) but Barristers, who may now practise in all the Courts, (y) have no privilege to be sued in any particular Court, although he is privileged from arrest or imprisonment whilst attending any Court or on the circuit:(z) and it has (n) 5 Bla. C. 46. (o) Ante, p. 1, 2. For the history of these con. trivances, see Appendix to the first edition of Sellon's Practice, vol. i., and Gilbert's Practice, C. P. (q) Baker v. Swindon, 1 Ld. Raym. 399; 3 Salk. 283, S. C.; Cases Pr. C. P. 104; Pr. Reg. 380; Barnes, 371, S. C.; Tidd, 80. (r) Duffy v. Oakes, 3 Taunt. 166; Willshire v. Lloyd, 1 Dougl. 381; Comerford v. Price, id. S12; Gardner v. Tesson, 2 Wils. 42; Atkins v. › 2 Chitty's Rep. 63; Tidd, 9th ed. 80, 81. (s) Elkins v. Harding, 1 Crompt. & J. 345; Bowyer v. Hopkins, 1 Young & J. 119. (u) Bowyer v. Hoskins, 1 Young & J. (x) Baker v. Swindon, 1 Ld. Raym. 399; 3 Salk. 283, S. C.; Tidd, 80. (y) This was declared by the king's warrant on the 24th April, 1834, enabling all barristers to practise in the Court of Common Pleas in term, giving the serjeants precedence. See warrant, 10 Bing. 571, post, Common Pleas. (z) Meekins v. Smith, 1 H. Bla. 636; Luntley v. 1 Crompt. & J. 579. CHAP. V. Revenue officers, been recently decided, that a barrister may be sued in the London Court of Conscience. (a) It is not judicially settled whether the Uniformity of Process Act, 2 Wm. 4, c. 39, affects the privilege of an officer or attorney to be sued in his particular Court. The first section of that act certainly abolishes the ancient necessity to sue a privileged person by any particular form of process different from that against ordinary persons, and prescribes a new general form of process, and enacts "that such process may issue from either of the said Courts;" but the nineteenth section continues all exemptions from arrest, and the statute contains no express clause taking away the right to be sued only in a particular Court, and, therefore, some authors insist that such privilege continues, (b) but another author appears to have considered that it no longer exists.(c) It is submitted, however, that so important a privilege continues, for the only object of the statute was to secure the same form of process in each Court, but without interfering with any privilege; and if the act is to be construed to take away the privilege of an attorney to be sued in his own Court, it might equally be construed to take away the privilege of a revenue officer to be sued in the Exchequer, and many other privileges which certainly were not intended to be affected by that act. There is also a peculiar prerogative jurisdiction of the Court of Exchequer to remove into the Office of Pleas all cases touching the revenue of the crown, and if an action be brought in any other Court against any officer of revenue, whether of customs or excise, or otherwise in respect of any transaction connected with the execution of his office or duty, whether under process or otherwise, such action may be removed into the Court of Exchequer, on the alleged ground that as that Court is peculiarly conversant with all questions arising upon the construction of the revenue law, it is desirable that the propriety of the conduct of such officers should be there determined, (d) nor is it necessary that the king's interest should be in question. (d) But as such a prerogative is calculated to excite suspicion of partiality and favour to the officer, it would be for (a) Wettenhall v. Wakefield, 10 Bing. 335. (b) Chapman's King's Bench Practice, Addenda, 75; Tidd's Supplement, A.D. 1833, p. 65. (c) Chitty, T. edit. Archbold's Pract. vol. i. 21; vol. ii. 632, and note (h). (d) Cawthorn v. Campbell, 1 Anstr. 205; Siddon v. East, 1 Crompt. & J. 12; and see Hammond's case, Hardr. 176; Penney v. Bailey, Bunb. 309; Berkley v. Walters, id. 306; Lamb v. Gunman, Parker, 143; Re Kingsman, 1 Price's Rep. 206; Bening field v. Stratford, 8 Price, 584; Man. Exch. Prac. 161, 164; Bac. Ab. Court of Exchequer, B.; Vin. Ab. Court of Exchequer, P.; 3 Bla. Com. 44, note (24), id. see the practice. the honour of the crown and its officers if it were annulled, or at least not acted upon. (e) When this prerogative proceeding applies, the Court of Exchequer interposes on motion, by ordering the proceeding to be removed into the Office of Pleas, and which order operates by way of injunction. The usual order in cases of this nature is, "that the action be removed out of the Court in which it is depending into the Office of Pleas, and that it be there in the same forwardness as in the other Court." The order however does not operate as a certiorari to remove the proceedings, but merely as a personal order on the party to stay them there, and of course requires the defendant in the action to appear, accept a declaration, and put the plaintiff in the same state of forwardness in the Office of Pleas as he was in the other Court. (f) any There is a privilege even more extensive in favour of an officer of the Court of Chancery, or other person sued for thing done in that capacity, for that Court has jurisdiction to stay by injunction or order any suit against any person for executing the process of their Court, although it was issued irregularly, and a trespass committed. (g) And the Court of Chancery will not allow a person to bring an action at law for damages for an improper arrest under an attachment out of a Court of Equity, though it will refer it to the master to inquire what compensation he ought to receive. (h) The practice seems to be by injunction to restrain the proceeding at law, but without prejudice to any application the party may be advised to make to the Court of Equity for compensation; (i) or supposing sequestrators on process of a Court of Equity should have seized property claimed by a third person, his only course is to apply to the Court for leave to bring an action of ejectment or trover, or to be examined in the chancery suit as to his interest in the land or goods sequestered. (k) (e) The mode in which justice is at present administered in revenue causes in the Court of Exchequer is free from suspicion, but still it is to be regretted that such a prerogative should exist, or at least be exercised. Until lately special jurors in the Exchequer, when they found a verdict for the crown, had two guineas each, and only one guinea when they found for the defendant. And it is upon record, that if a special juryman frequently found a verdict against the crown, or even hesitated, care was afterwards taken that he should not be on the jury. But these odious distinctions are no longer adhered to. (f) Per Eyre, C. B. in Cawthorn v. VOL. II. Campbell, 1 Anstr. 205, in notes. (g) 1 Mad. Chan. Prac. 135 to 137; Smith's Chan. Prac. 342, 344, 345; Frowd v. Lawrence, 1 Jac. & W. 655; Kaye v. Cunningham, 5 Mad. 406; id. 297; 2 Swanst. 313; Baily v. Devereur, 1 Vern. 269; Chitty's Eq. Dig. 589; see post, Prohibition. (h) Batchelor v. Blake, 1 Hog. 98; Chitty's Eq. Dig. 1482. (i) Frowd v. Lawrence, 1 Jac. & W.655; (k) Brooks v. Greathead, 1 Jac. & W. CHAP. V. SECT. II. Officers of Courts of Equity. CHAP. V. Where debt or damages are small. In general these superior Courts have jurisdiction, however small the debt or injury, and at common law it is no answer or defence that the debt or damages to be recovered will be under forty shillings; and although there be a local Court, yet, if the case is not in all respects within its jurisdiction, or the complainant could not otherwise proceed therein, then he may sue in the superior Courts, but subject to the power of the judge to certify under 43 Eliz. c. 6, when the damages recovered are less than forty shillings, and thereby deprive him of costs;() for the smallness of the damages is no reason that the complainant should lose them. (m) There are however in most parts of England local inferior jurisdictions, usually called Courts of Request, or Courts of Conscience, very inconveniently varying from each other in their respective provisions, (n) some prohibiting suits for debts under £10, others under £5, and others under £2, from being brought in any other Court, and to be taken advantage of by the defendant in different ways, pointed out by each particular act, as by motion or plea or suggestion; (o) and sometimes containing a general prohibition from suing in any other Court, in which case the objection is even a ground of nonsuit. (p) As those local Courts have no jurisdiction to summon witnesses out of the jurisdiction, and in general all inferior Courts are confined to causes of action which originally arose within their jurisdiction, or at least where an account had been there settled, it might have been supposed that such Courts could not take cognizance of causes of action that had arisen out of their jurisdiction; it has however been decided, that in general when the defendant resides, and could have been served with process within the jurisdiction, the inferior Court may proceed, although the cause of action accrued elsewhere, and this, although the plaintiff was wholly ignorant of such residence of the defendant, and actually served him with process from the superior Court out of the inferior jurisdiction. (q) Hence the necessity for ascertaining when the debt is small, whether some local jurisdiction may not preclude the plaintiff from suing in (1) Wright v. Nuttal, 10 Barn. & Cress. 492. (m) Ante, vol. i. 28; Tubb v. Woodward, 6 T. R. 175; Busby v. Fearon, 8 T. R. 235. (n) See the collection of these statutes by Mr. Tidd Pratt; and see Chit. Col. Stat. tit. Costs. A general act consolidating the enactments is required. (0) See the statutes and notes in Chit. Col. Stat, tit. Costs; Tidd Pratt's Courts of Request Acts. (p) Rex v. Johnson, 6 East, 583; Parker v. Elding, 1 East, 352; Doulson v. Matthews, 4 T. R. 503; 1 Chit. on Pleading, 475, 476. (q) Graham v. Browne, 2 Crompt. & J. 227; Baildon v. Pitter, 3 Barn. & Ald. 210; 1 Chitty's Rep. 635, S. C.; Oaks v. Albin, M'Clei. Rep. 502; Spencer v. Holloway, 15 East, 674. a superior Court. So even where the defendant is an attorney, and could not have been sued in an inferior Court, if the damages recovered against him should be under forty shillings, the judge may certify under 43 Eliz. c. 6, so as to deprive the plaintiff of costs. (r) CHAP. V. SECT. II. risdiction of The recent enactments 1 Wm. 4, c. 70, and subsequent acts, Alterations and do not alter the jurisdiction of the Superior Courts at West- extension of juminster, excepting that the sect. 1, 13 and 14, add a fifth judge Courts of law to each Court, and abolish the Courts of Sessions in Cheshire by recent acts. and Wales, and distribute and remove the suits (s) then depending in such Court, amongst the Courts at Westminster, viz., the power of amending the records of fines and recoveries suffered in the Welsh Courts, is transferred to the Court of Common Pleas, depending actions into the Exchequer, criminal prosecutions and informations in the nature of quo warranto into the Crown Office of the Court of King's Bench, and depending suits in equity into the Courts of Chancery or Exchequer, and leaving all future suits and proceedings to be instituted in one of those Courts, according to its appropriate jurisdiction. (t) The recent changes in the law principally alter only the forms of proceedings, and enforce a uniformity of process to bring the defendant into Court, either by summons. or by capias, when the party is to be arrested, (u) and authorize all the fifteen judges, or at least eight of them, including the three chiefs, to make general rules for regulating the proceedings of all the three Courts, (x) and during five years, from 1 June, A.D. 1833, to make rules relative to pleading, to come into force after they have laid before parliament for six weeks. (y) But still each Court retains its antecedently existing jurisdiction of making rules for regulating their own particular proceedings, and continues their previous rules and peculiar practice in force, "provided they be not repugnant to the general rules so made;" () and accordingly the Court of Exchequer have promulgated such particular rules relating to the practice of their own Court; (a) and very recently the Court of (r) Wright v. Nuttal, 10 Barn. & Cress. 492. (s) It was decided that a judgment on a warrant of attorney to confess judgment in one of the Courts of Great Sessions in Wales, given previously to 1 Wm. 4, c. 70, could not be entered up in the Court of Exchequer, as that instrument could not be deemed a suit. Williams v. Williams, 1 Cromp. & Jerv. 387; Jones v. Clarke, id. 447. (t) 1 Wm. 4, c. 70, s. 14. (u) 2 Wm. 4, c. 39. (x) 1 Wm. 4, c. 70, s. 11; and see Rules Trin. Term, 1 Wm. 4, A.D. 1831, made thereon, and rules Hil. Term, A. D. 1832. (y) 3 & 4 Wm. 4, c. 42, s. 1; and the Rules of Hil. Term, 1834, thereon, relating principally to pleading. (3) 1 Wm. 4, c. 70, s. 11. (a) See the General Rules of Court of Exchequer, Mich. Term, 1 Wm. 4; 1 Cromp. & Jerv. 270 to 285. |