CHAP. V. By what circumstances the option to sue in a particular Court may be influenced. Common Pleas has promulgated particular rules relative to the These principally relate to, first, the nature of the question, Secondly, Should be ascertained the probable favourable or adverse decision, opinion or even inclination of one or more of the judges of a particular Court, not only upon certain questions of law, but also upon some matters of fact, or ethics, or evidence affecting, or at least bearing upon, the point of law or fact to be decided in the particular case, or his sentiments upon the amount of damages that should be awarded in some actions connected with the feelings; as in actions for criminal conversation or for debauching a daughter, or for a libel, &c., or on the subject of costs, and differing from that of the other Courts or judges; and especially who will be the judge before whom the cause would probably be tried. (c) (a) Stat. 3 & 4 W. 4, c. 74, s. 89; and rule C.P. Trin. Term, 4 W. 4, A.D. 1834. (b) It is to be regretted that an exclusive jurisdiction over all conveyancing and real property questions, and actions of ejectment, has not been vested in or rather restored to this Court, as they would certainly be there better discussed and considered, and an uniform sytein of real property law established. (c) More than mere allusion to examples might be improper; but it is well known that in one Court there is a judge Thirdly, The whole practice of all the three Courts, as it may apply to the particular suit or business, or at least when in any important respect it may differ in one Court from the other, should be considered, and whether on account of any difference it will be preferable, either as regards the principal stages in the cause, or some subordinate or collateral matter, or even in the more liberal allowance of costs, to proceed in one Court than in the others. (d) Thus there is a difference in the practice of the Court of King's Bench and Common Pleas in favour of the former, as regards the lien of the plaintiff's attorney, when there is a cross suit or proceeding, and which difference would, when there are or likely to be cross actions or proceedings, render it advisable for the plaintiff's attorney to prefer the former Court; (e) for in the King's Bench the debt and costs of one action cannot be set off against those of another, without at least providing for the lien of the plaintiff's attorney being satisfied in full, (e) whilst in the Common Pleas (ƒ) and in a Court of Equity (g) the attorney's lien is not allowed to prevent such set-off. dispassionate decisions; and in the other Court of law a judge, justly celebrated for his perspicuity, especially in all subjects relative to patents and inventions, and before whom therefore a complicated patent cause might with confidence be tried. It will not be denied that in many cases, it is of the utmost importance, not only that the judge should be of general ability, but also be familiarly acquainted with the subject to be tried, for otherwise he will not be able to explain and observe upon to the jury the facts and law applicable to the case, and a just result will be endangered. Lord Mansfield was celebrated for his great knowledge of insurance and mercantile law, and, consequently, whilst he presided, an admirable system of mercantile law, as regarded those subjects, was established. Whilst it is well known that another judge was so entirely ignorant of insurance causes, that after having been occupied six hours in trying an action on a policy of insurance upon goods (Russia duck) from Russia, he in his address to the jury complained that no evidence had been given to show how Russia ducks (mistaking the cloth of that name for the bird) could be damaged by sea water and to what extent. In the time of the late Lord Kenyon we remember that verdicts for large damages were favoured in actions for all violations of morality and injuries to the feelings, and upon motives quite consistent with the existing principles of law as explained by the late Lord Ers- (d) Thus in K.B. if the sentence against (e) Tidd's Pr. 9th ed. 339, 992; 3 B. & Cres. 535; 2 B. & Cress. 800; 4 T. R. 123; 6 T. R. 456; 8 T. R. 70; 1 Dowl. & R. 168. (f) 8 Bing. 29; 1 Moore & Scott, 93, S. C.; 1 Dowl. Pr. Cas. 242; Hall v. Ody, 2 Bos. & P. 28; Schoole v. Noble, 1 Hen. Bla. 23; 4 Taunt. 652; 8 Taunt. 526. (g) 15 Ves. 72, 539; 2 Ball & B. 34; Hullock on Costs. CHAP. V. SECT. II. CHAP. V. Fourthly, The arrear or state of business in the respective Courts, and the certainty or probability of obtaining a trial or decision sooner in one Court than the other, especially when an important witness, whose viva voce testimony may be material, is about to leave the kingdom, or reside at a great distance from the place of trial. (k) Fifthly, Relating to the retainer or employment of one or more particular counsel, either of generally superior talent or influence in a particular Court, or of paramount knowledge of the particular question of fact or law, or particular ability in the examination of a known difficult witness, or of peculiar zeal upon some particular subjects of litigation, () and especially whether it be certain such counsel will attend during the whole trial, or upon argument, or upon a motion for a new trial, or in arrest of judgment, or perhaps be absent at some critical time; (m) and whether in case all the most efficient counsel practising in a particular Court should have been already retained for the defendant, it may not be advisable to proceed in another Court, or abandon the already commenced action, or whether it will be preferable specially to retain, even at an increased expense, a pre-eminent counsel usually practising in another Court, or on another circuit, and oppose him to those already retained by the defendant, or even for a defendant to file a bill in the Exchequer, and by an injunction there stay a trial. In a preceding page it was observed, that when the merits strongly preponderate in favour of one party, he will usually succeed with the assistance of any counsel; but it too frequently occurs, even at the present time, that extraordinary talent in a particular counsel will really prevail against the justice of the case. (n) There are also numerous other instances where judgment may be usefully exercised in the selection of a particular Court or remedy in preference to another, and which will be pointed out in the progress of this chapter. Before the late act 1 W. 4, c. 70, sect. 8, successive writs of error were sustainable in certain cases from the judgment of (k) Notwithstanding the now established power of enforcing the examination of witnesses abroad or about to proceed abroad on interrogatories, see post, 346, and 1 W. 4, c. 22; still it is frequently of the utmost importance to secure the actual attendance and examination of witnesses viva voce on the trial. And see Macalpine v. Powles, 3 Tyr. R. 871. (1) At the time that Sir W. Garrow, my earliest patron at the bar, practised as an advocate, it is well known that his talent in cross examination very fre quently occasioned verdicts that would the Court of Common Pleas into the Court of King's Bench, and afterwards from thence into the Exchequer Chamber, and then into the House of Lords, and which were certainly adverse to the Court of Common Pleas, and favourable to the King's Bench and Exchequer of Pleas; and these successive stages of delay were permitted contrary to the general principle that multiplicity of appeals ought not to be favoured, (o) and at that time, in order to avoid the delay incident to these proceedings, it was advisable, when the debt exceeded 50l, or even when less, at an increased expense to be borne by the plaintiff, to commence the action by original writ returnable in King's Bench, in which case the writ of error must have been brought at once in the House of Lords. But now as that statute in all cases requires every writ of error upon the judgment of either of the superior Courts to be brought in the first instance in the Court of Exchequer Chamber, before the judges of the two other Courts, and upon the judgment in the Exchequer Chamber in the House of Lords, it follows that it is so far immaterial whether the action be commenced in the K. B., C. P., or Exchequer; and this act, together with the uniformity of process act, 2 W. 4, c. 39, have greatly tended to equalize the number of actions in each Court. So, formerly, as only a serjeant could be heard in the Court of Common Pleas in support of or against a motion for a new trial, it became important to consider, before the commencement of the action, whether the counsel who would conduct the trial would or not be serjeants, and if not, then to proceed in the King's Bench; because the greatest inconvenience, if not loss, has arisen from a serjeant having to speak upon a new trial when he was not concerned in the cause at Nisi Prius, and consequently was comparatively ignorant of what had passed on the trial. But now, by the recent opening of the Court of Common Pleas to all barristers as well as serjeants, that objection has been judiciously removed. (p) These few of very numerous circumstances that may influence the choice of a particular Court, are stated only as instances, and to impress practitioners with the necessity for keeping in view the difference in the practice of the Courts, which will be enumerated in the course of this volume. We will now proceed to state the jurisdiction of each Court in particular, and occasionally suggest the expediency, under (0) Parham v. Templer, 3 Phil. Ec. Cas. 255. Per Sir J. Nicholl. "Although the law favours the right of appeal, yet it does not favour the multiplication of appeals." (p) See the king's warrant, 10 Bing. 571, 572; and post, Court of Common Pleas. CHAP. V. SECT. II. CHAP. V. III. The jurisdiction and general practice of the Court of King's Bench. (9) particular circumstances, of proceeding in one Court in preference to another. SECT. III.-Jurisdiction of the Court of King's Bench. The jurisdiction of the Court of King's Bench is by far the most extensive of all the Courts, whether of law or equity, for it has cognizance as well of all criminal matters as of most civil injuries, and has also considerable jurisdiction over matters collateral or distinct from any formal suit, and over inferior Courts. It administers justice either in formal civil actions decided upon demurrer on points of law, or by a jury trying formal issues of fact, or it affords justice summarily upon affidavit, motion, rule nisi, and rule absolute, and enforces the latter with costs by attachment. So as regards criminal and public proceedings, there will be found a similar distinction between formal indictments and informations, and more summary proceedings. (q) See in general 3 Bla. Com. 41, 109; Bac. Ab. tit. Courts of King's Bench, A. 2; Com. Dig. Courts, B.; 2 |