CHAP. V. SECT. III. ters. We have seen that originally the Court of King's Bench had merely jurisdiction over criminal matters and trepasses vi et armis, committed in the county where that Court happened First, What jurisdiction to be, and actions against persons in the actual custody of the over civil matmarshal, and against the officers and attornies of the Court, who were not to be compelled to answer elsewhere; and by the express terms of Magna Charta, 9 H. 3, c. xi., it was enacted that "Common Pleas shall not follow our Court, (i. e. of K. B.) but be holden in a certain place." (r) At length, however, by feigning that a trespass had been committed in Middlesex, where the Court had then fixed, or that the defendant was in the custody of the marshal, the Court assumed and finally established a jurisdiction over all personal actions, though before only cognizable in the Court of Common Pleas. (s) So that (subject to the exceptions before noticed relative to officers and attornies of another Court, (t) and revenue officers, (u) and persons executing the process of the Court of Chancery, (x) and also subject to a few enactments requiring actions thereby given to be brought in the Exchequer,) it is now established that every complainant has the choice of commencing in the King's Bench all formal actions of account, (strictly so called,) assumpsit, covenant, debt, detinue, case of every description, whether for injury to the person, personal property, or real property, trover, replevin and all actions of trespass vi et armis, whether for direct injuries to the person, as for assault, battery, false imprisonment, or for direct injuries to personal or real property in England or Wales, or in the counties of Chester and city of Chester; (y) and this whether the cause of action arose in Middlesex or elsewhere in England, or any part of the world, with the exception of local injuries, where the real property affected was out of the kingdom; also, over writs of scire facias on records, whether recognizances or judgments, in favour of private individuals. Such extensive jurisdiction over personal actions appears to have been recently recognized and impliedly confirmed by the uniformity of process act, 2 W. 4, c. 39; and indeed it had been too long practised to be disputed with effect. (2) The ancient proceeding (r) This extended as well to K. B. as to the Exchequer, and hence no real action could be brought out of C. P. except by the king, 2 Inst. 23; 2 Rol. Rep. 290. (s) Ante, 311; Trys. Jus. Filizarii, 28; Tidd, 9th ed. 37; Sellon's Prac. 1st ed. Append. vol. ii.; S Bla. Com. 287. (t) Ante, 315. (y) 1 W. 4, c. 70. (2) 3 Bla. Com. 287; Tidd, 150; Fulke v. Bourke, 1 Bla. Rep. 462; Barber v. Lloyd, 2 T. R. 513; 2 Saund. 52, note 1; 2 Chitty's Rep. 60. SECT. III. CHAP. V. by audita querela (still in force, though not used in practice, in consequence of a summary motion for relief having been in general substituted,) is sustainable in K. B. if the original action were in that Court; (a) and scire facias to repeal the king's patents are usually tried and determined in this Court. (b) With respect to penal actions, we have already shewn that a common informer cannot sue for a penalty unless he be expressly or impliedly authorized so to do, and in general the particular statute directs the Court in which the proceeding is to be instituted. (c) Over what But the Court of King's Bench has no jurisdiction over mixed actions. mixed actions, excepting that of ejectment, (always laid vi et armis), (d) for even quare impedit (also a mixed action) can only be brought in the Court of Common Pleas, excepting when the king is the plaintiff, who may proceed in quare impedit in either of the superior Courts of Law. (e) Not over real actions. Summary juris diction. As to real actions, the Court of King's Bench has no original jurisdiction in any real action, unless at the suit of the king, who has the choice of all his Courts.(f) So that if the Court of King's Bench were to issue a writ of grand cape to seize land in a real action, commenced in that Court, an action of trespass would be sustainable against the officer executing it ;(g) and yet, singularly, before the 1 W. 4, c. 70, s. 8, writs of error upon a judgment of the Common Pleas in all real actions, were returnable and heard and determined in this Court; so that, although not competent originally to entertain such a suit, it was allowed, as a Court of Error, to controul and overrule the decision of the Court of C. P. (h) Besides this extensive jurisdiction over formal personal actions, this Court has, either at common law, or by particular statutes, very extensive summary jurisdiction. The summary proceedings in this Court of a civil nature, to obtain redress for some private injuries, are principally habeas corpus, or re (a) Fitz. N. B. 105, 106; 2 Sell. 359; see Practice in Audita Querela, 2 Man. Ex. Pr. 376 to 382. (b) 4 Inst. 72; and see Haworth v. Hardcastle, 10 Bing. 551. Scire facias to repeal a patent lies at the suit of a private person, if prejudiced thereby, Brewster v. Weld, 6 Mod. 229. But costs not recoverable, Rex v. Miles, 7 T. R. 367; The King v. Bingham, 1 Tyr. R. 262; Tidd, 1094, 5, 6; Com. Dig. tit. Patent, F.; 2 Saund. R. 5 ed. 73, o. p. (c) Ante, vol. i. 25 a.; Fleming v. Barley, 5 East, 313; and see in general 1 Tidd, 517 to 520. (d) 2 Inst. 23; Com. Dig. Courts, B. 1. (e) Com. Dig. Courts, B. 1, B. 2; 4 Inst. 71; Fitz. N. B. 32, e.; Sellon's Prac. 1 ed. vol. ii. 321; Tidd, 734, 870, 946. (f) Com. Dig. Courts, B. 2; Bac. Ab. Court of King's Bench, A. 2. (g) Weaver v, Clifford, 2 Bulst. 64; Marshalsea Case, 10 Coke, 76 a. (h) As in Formedon, Cockerell v. Cholmondeley, 10 B. & Cres. 564; in quare impedit, Gulley v. Bishop of Exeter, 10 B. & Cres, 584 lating to awards, annuities, mortgages, bail bonds, replevin bonds, warrants of attorney, officers of the Court, sheriffs, bailiffs, attornies, and articled clerks, &c. In general in every summary proceeding founded on a statute, the direction of the act must be very strictly pursued. (¿) CHAP. V. SECT. III. The habeas corpus acts and proceedings thereon have been Habeas Corpus. stated in the preceding volume. (j) At common law, as the Court of C. P. originally had jurisdiction only in civil actions, and the Exchequer only in civil actions and revenue prosecutions, the Court of King's Bench in term time, and the Chancellor at all times, were the only tribunals for discharging when a party was in custody on a criminal charge. And although since the habeas corpus acts, 31 Car. 2, c. 2, and 56 Geo. 3, c. 100, all the superior Courts and each of the judges and barons have equal and concurrent jurisdiction to issue a writ of habeas corpus, and discharge from illegal imprisonment, and each judge and baron must, if applied to, act in vacation, at the peril of forfeiting £500 in case of refusal;(k) yet in practice it is advisable to apply to the Court of King's Bench or one of its judges, in preference to any other Court or judge, in all cases where a party is illegally imprisoned under colour of the process or proceedings of that Court, or upon any criminal charge, or upon a commitment of commissioners of bankrupt,(l) or upon an illegal sentence or proceeding of an Ecclesiastical Court, (m) or under a commitment by the chief justice of K. B., (n) or upon the supposition of an offence against the revenue having been committed: first, because the judges of K. B. are more in the practice of considering and deciding upon criminal subjects, and the requisite forms of process, warrants, convictions, orders, and commitments, than the other Courts; and this Court, as observed by Lord Holt, is the constitutional protector of the liberty of the subject; secondly, because the legality of imprisonments for alleged offences against the revenue, probably upon the charge of some interested officer, require strict and impartial investigation, and this Court is as much bound to take care of the liberty of the subject as to protect the revenue from fraud. Accordingly in all cases of criminal charges and of illegal or irregular imprisonments under statutes for the protection of the revenues of cus (i) Jones v. Fitzaddams, 3 Tyr, R. 904; 410. Baynes v. Baynes, 9 Ves. 462. (j) Ante, vol. i. 684 to 695 ; and see the statutes at length, Chit. Col. Stat. False Imprisonment, 344 to 349. (k) 31 Car. 2, c. 2, s. 10. (1) Ex parte Harrison, 1 B. & Adol. (m) Vern. 24; Sid. 181; Keb. 683; R. v. Jenkins, 1 B. & C, 655; R. v. Dugger, 5 B. & Ald. 791; see post, Ecclesiastical Courts. (n) Per Holt, C. J. Salk. 359. CHAP. V. Awards. toms, excise or taxes, it is advisable to apply to this Court.(o) This Court also has peculiar power not only to discharge, if the imprisonment upon a criminal charge be wholly illegal, but also to bail the party, although in custody, for supposed high treason or capital felony. (p) But where the imprisonment is under the civil proceeding of any other Court, then the application for an habeas corpus may be more properly made to the Court out of which such process issued. The practice in obtaining an habeas corpus, or a more summary discharge from imprisonment, has been stated in the preceding volume.(q) 1 So in order to enforce or to appeal against an award or umpirage, the statutes of 9 & 10 Wm. 3, c. 15, and 3 & 4 Wm. 4, c. 42, s. 39, 40, 41, (r) create a summary jurisdiction, in giving effect to, or setting aside, or modifying the decision of the arbitrator, constituted a private judge by the consent of the parties, and whether or not there has been any action depending, this Court has jurisdiction in cases where there has been a written agreement that the submission to arbitration may be made a rule of this Court, and the same has accordingly been made such rule. The proceedings in these cases have already been noticed. (s) When by the terms of the submission it has been agreed that it may be made a rule of this or any other Court, it will in general be found best to apply to this Court, because the very constant practice on these subjects has induced a particular facility of decision in K. B. The Court can also by attachment as effectually enforce specific performance of the award as a Court of Equity. (t) But we have seen that it has been considered, that when once the submission has been made a rule of any one of the Courts, an attachment cannot be moved for in any other Court, although one of the causes referred was depending in the latter. (u) And in general, if an agreement of reference has been made a rule of a Court of Law, a Court of Equity cannot give relief even on the ground of fraud, or other circumstance usually constituting the particular ground for proceeding in a Court of Equity.(v) (0) See the instances and observations Er parte Pain, 5 B. & C. 251; Kite and Lane's case, 1 B. & C. 101; 2 D. & R. 212; In re Nunn, 8 B. & C. 644; 3 Man. & R. 75; Debell's case, 4 B. & Ald. 243. (p) 4 Inst. 71. (q) Ante, vol. i. 691 to 696. (r) See these acts set forth, ante, this volume, 80 to 85. (s) Ante, this volume, 73 to 126. (u) Ante, 123, note (r); Winpenny v. Bates, 2 Crompt. & J.379. (v) Auriol v. Smith, 1 Turn. & Rus. 124 to 126; ante, this volume, 124, 125. The legislature, in order to prevent the frauds and inconveniences so frequent in annuity transactions, has given each of the superior Courts summary jurisdiction in certain cases. The 17 G. 3, c. 26, now obsolete, was the first enactment; the act now in force is the 53 G. 3, c. 114. Sect. 2, requiring the memorial of the transactions, enacts, "that within thirty days after the execution of every deed, bond, instrument, or other assurance, whereby any annuity or rent-charge shall after the 14th July, 1813, be granted for one or more life or lives, or for any term of years, or yearly estates determinable on one or more life or lives, a memorial of the date of every such deed, bond, instrument or other assurance, of the names of the parties and of all the witnesses thereto, and of the person or persons for whose life or lives such annuity or rent-charge shall be granted, and of the person or persons by whom the same is to be beneficially received, and of the pecuniary consideration or considerations for granting the same, and the annual sum or sums to be paid, shall be enrolled in the High Court of Chancery in the form or to the effect following, with such alterations therein as the nature and circumstances of any particular case may reasonably require, otherwise every such deed, bond, instrument, or other assurance, shall be null and void to all intents and purposes," and the form of the memorial in appropriate columns is then prescribed. The 5th section gives a judge of K. B. or C. P. (omitting Exchequer and Courts of Equity) summary power, by summons and order, to compel the delivery of a copy of the deed to any applicant, and power to examine with the original. Sect. 6 enacts, that if any part of the consideration for the purchase of any such annuity or rent-charge shall be returned to the person advancing the same, or in case such consideration or any part of it shall be paid in notes, if any of the notes, with the privity and consent of the person advancing the same, shall not be paid when due, or shall be cancelled or destroyed without being first paid, or if such consideration is expressed to be paid in money, but the same or any part of it shall be paid in goods, or if the consideration or any part of it shall be retained on pretence of answering the future payments of the annuity or rent-charge, or any other pretence, in all and every the aforesaid cases it shall be lawful for the person by whom the annuity or rent-charge is made payable, or whose property is liable to be charged or affected thereby, to apply to the Court in which any action shall be brought for payment of (x) See former act, 17 G. 3, c. 26, and present act, 53 G. 3, c. 141; 3 G. 4, c.92; 7 G. 4, c. 75. CHAP. V. SECT. III. Annuities. (x). |