CHAP. V. The Exchequer of Pleas. (x) Equity in the Exchequer Chamber, of which the Lord Treasurer and the Chancellor and Barons of the Exchequer were the judges, (p) and still continued and improved by the recent acts, 57 G. 3, c. 18, and 3 & 4 W. 4, c. 41, s. 25 & 27; 8. The Court of First Fruits and Tenths, erected tempore Hen. 8, but which was dissolved and the clergy discharged thereof by 2 & 3 P. & M. c. 4. By 1 Eliz. c. 4, the first fruits and tenths were reunited to the crown, and although this ancient Court itself was not revived, yet such first fruits and tenths were placed within the rule, survey and government of the Exchequer, (q) and the circumstance of such first fruits and tenths being cognizable especially in the Exchequer, gave rise also to suits for tithes being anciently there instituted; and as the Court had become particularly conversant with tithe law, it has ever since been the practice to prosecute tithe suits in the Exchequer in preference even to the Court of Chancery, (r) though in the latter Court the decree is more extensive than in the Exchequer, viz. by compelling the defendant to account for his tithe to the time of the decree or even to the time of the master's report, whilst in the Exchequer the decree only compels account to the time of filing the bill. (s) If the owner of the tithe proceed by bill in equity or in the Exchequer, he must waive all actions for penalties for not setting out tithe. (t) Suits in the Exchequer for tithe are now usually on the equity side of this Court; (u) they are preferable when the litigation is with several parishioners, and when, if the tithe owner were to proceed at law, numerous actions would be necessary; but when there has been an agreement between the tithe owner and a particular parishioner to pay a composition in lieu of tithe, and there is an arrear due under the agreement, or when predial tithe (not agistment) has not been set out, and the treble value of such tithe will be more than sufficient to defray all the costs at law, then an action of debt for treble or single value is in general preferable. The first specified Court, viz. The Court of Pleas, is the Exchequer Court of Law, and was properly and anciently the Court in which debts or duties to the king were to be recovered, usually by information by the attorney-general, and actions by and against the officers of this Court, and the king's actual (p) 4 Inst. 118; Bac. Ab. Court of (4) 4 Inst. 120; Plowd. 377, 542. (s) 2 Atk. 137; 1 Mad. Ch. Pr. 105. (t) 1 Mad. Ch. Pr. 108; 1 Vern. 60; 1 Austr. 100. (u) 2 Man. Exch. Pr. 508, 509. (x) See its jurisdiction in general, Com. Dig. Courts, D. 2. debtors, and against actual prisoners in the Fleet Prison of the Court, were always sustainable in this Court. Magna Charta prohibited real, mixed and personal actions to be brought elsewhere than in the Common Pleas, and the statute of Rutland, 10 Ed. 1, in affirmance, as is said, of the common law, enacted that "no plea shall be held in the Exchequer unless it specially concern the king or his ministers. (y) But under the fiction that a party was the king's minister or debtor, and that by the defendant's withholding the debt or having committed the injury, the plaintiff was less able to pay the king, jurisdiction was assumed and established over all private claims in personal actions between subject and subject, although in truth neither was an actual debtor to the king. (2) In some cases also a preference was by this means given to the Court of Exchequer, as in debt on simple contract; wager of law was not allowed in this Court, and the process of venire did not require personal service; and we have seen that the jurisdiction of this Court in personal actions is at least impliedly recognized by the act establishing a uniformity of process; (a) and it is not now even necessary, or indeed proper, in a declaration in the Exchequer, to allege that the plaintiff is a debtor to the king, any more than it is now necessary or proper in the King's Bench to state that the defendant is in the custody of the marshal, unless that be the fact. (b) It was, however, considered that a plaintiff cannot proceed in this Court by original writ from the Chancery returnable here. (c). In this Court a plaintiff has four terms in which to enter a common appearance for the defendant, under 12 G. 1, c. 29, s. 1, an advantage in favour of a plaintiff's proceeding here. (d) It has been supposed by some that this Court adopts the practice of the King's Bench, and by others that of the Common Pleas, (e) but these suppositions are equally erroneous, for the barons are wholly independent excepting of their oath, and which binds them to decide and act according to their own independent opinions, though the previous decisions of their own or any other Court upon the terms of a statute or general rule, or upon a general matter of practice, which ought to be similar (y) 4 Inst. 113, 114; Plow. 209; Stoke, 20. (3) Bac. Ab. Court of Exchequer; 4 Inst. 112; 3 Bla. C. 44; 2 Sell. Pr. 1 ed. 599, 600. (a) Ante, 2 W. 4, c. 39; 3 & 4 W. 4, c. 67, s. 1. (b) Hirst v. Pitt, 3 Tyrw. R. 264; 1 Cromp. & Mee. 324. (c) 1 Price R. 309; Tidd, 38. (d) Cook v. Allen, 3 Tyrw. 378; contra to practice of King's Bench, where the appearance must be within two terms, 10 B. & C. 437. (e) Price Pr. Advertisement, vii. CHAP. V. SECT. V. CHAP. V. When the jurisdiction of the Exchequer is exclusive. Not in real or mixed actions ment. in all the Courts, will doubtless be considered with the best attention before they will be departed from. (f) We have seen that in some cases even of personal actions this Court has exclusive jurisdiction, as where the king's revenue is concerned, or an action has been brought in another Court against a revenue officer for something done or omitted by him connected with his office, and when we have seen the proceedings may be removed into this Court. (g) So by the Lottery Act, 36 G. 3, c. 104, s. 38, when in force, actions for penalties must have been commenced and prosecuted in the Exchequer. And, in general, penalties incurred under the Stamp Acts must be sued for by and in the name of the attorney-general or in the name of the solicitor or some other officer of the stamps, and usually in this Court. (h) But this Court has no jurisdiction over real or mixed actions, excepting eject- excepting in ejectment, which was acquired by fiction of the plaintiff being a debtor, though at what time does not appear.(?) In one case of ejectment this is the only proper Court in which to proceed, as if A. have the title to lands under an extent out of the Exchequer for debts in aid, he must bring his ejectment for them in this Court, and having brought his ejectment for them in the Court of Common Pleas, he was, on motion, ordered to prosecute here. (k) So if A. be outlawed at the suit of B., and lands in the possession of A. are extended, and C. claims title to them, and pleads to the inquisition, he must bring an ejectment for them in this Court and not elsewhere, because the king's revenue is deemed to be concerned. (1) And indeed in all suits in another Court, if it appear from the pleadings that the revenue is concerned in the event, the cause may be, as we have seen, removed into the Office of Pleas. (m) Feigned issues. Feigned issues, or other issues, are also properly framed and triable on the plea or law side of the Exchequer, but by plea only, and not even then merely on motion; (n) and an issue will not be directed to be tried in the Exchequer unless for some special reason and on motion for that purpose. (o) And regularly these are only the result of some summary application to the Court when the affidavits are contradictory, (p) or are (f) And see Doe d. Fry v. Fry, 2 Cromp. & M., 254, as to the practice of the Court of Exchequer probably changing and becoming assimilated to that of the other Courts in like cases. (g) Ante, 316, 317. (h) 44 G. 3, c. 98; 5 G. 4, c. 41. (k) Hardr. 193, 176; and see 2 Vern. 146; Bac. Ab. Court of Exchequer. (1) Hard. 176. (m) Lamb v. Gunman, Parker's Rep. 143; ante, 316, 317. (n) 2 Man. Ex. Pr. 505; 4 T. R. 402; 12 East, 247. (0) Antrobus v. E. I. Company, 5 Mad. Rep. 3. (P) 2 Man. Ex. Pr. 505; 6 Taunt. 75. CHAP. V. SECT. V. diction. framed under the authority of an inclosure or other act, or they are sent from the equity side of the Court of Exchequer or from Chancery. (q) With respect to the summary jurisdiction of this Court, as Suminary jurisin cases of awards, annuities, mortgages, bail bonds, replevin bonds, &c. over which we have seen the Courts of King's Bench and Common Pleas have jurisdiction on affidavits and motion, the statutes giving such jurisdiction in general equally apply to this Court. There are, however, singular exceptions as to summary applications, as well under the fifth section of the Annuity Act, 53 G. 3, c. 141, which only in terms authorizes a judge of King's Bench or Common Pleas to compel the production of the original deed; and it seems that an application by a tenant against the decision and record of justices of the peace, and to obtain restitution under the 11 G. 2, c. 19, s. 17, only extends to the Courts of King's Bench and Common Pleas, and not to this Court. These two exceptions historically shew that the legislature did not, at the time those acts were passed, treat the Court of Exchequer as a Court of law for the decision of private rights between subject and subject, though undoubtedly by the fiction of quo minus this Court had long before contrived to exercise jurisdiction in those cases. The Habeas Corpus Acts, 31 C. 2, c. 2, and 56 G. 3, c. 100, Habeas corpus. expressly extend to the Court of Exchequer and the barons thereof; but when the party is in custody under a criminal charge, it is, we have seen, more usual to apply for the writ and discuss the legality of the imprisonment in the Court of King's Bench; (r) and when a party is in custody under any irregular process upon a revenue charge, it is always better for him to apply to the Court of King's Bench than to the Court of Exchequer, for reasons before assigned. (s) The Court has jurisdiction over warrants of attorney, au- Warrants of atthorizing a judgment in this Court; and though it has been torney. decided that by the practice of this Court, contrary to that of King's Bench and Common Pleas, the Court of Pleas will not interfere to set aside a warrant of attorney on the ground of illegality, but the defendant must apply for relief to the equity side of this Court, (t) the present practice is otherwise. But (9) 2 Man. Ex. Pr. 505, and cases in note (r). (r) Ante, 327. (s) Ante, 327, 328. (t) Matthews v. Lewis, 1 Anstr. 7; 2 Man. Ex. Pr. 500, note (i), but who judiciously adds tamen quære. Matthews v. Lewis, 1 Anstr. 7. Partridge and King moved for a rule to shew cause why the judgment entered up by the plaintiffs should not be set aside, on the ground of usury, which was disclosed by affidavits. By the Court. To set aside judgments CHAP. V. Jurisdiction over its officers and attornies practising there. Practice in outlawry. a judgment cannot be entered up in the Exchequer on a warrant of attorney to confess judgment in a Court of Great Sessions, because the statute 1 W. 4, c. 70, speaks only of the removal of suits, and a warrant of attorney, although authorizing a suit, cannot in itself be deemed a suit. (u) This Court has a jurisdiction over its own officers and attornies, similar to the Courts of King's Bench and Common Pleas; (x) and it seems also to have had summary jurisdiction over an attorney of another Court, who practised in the Exchequer in the name of a side clerk before the late act. (y) We have sufficiently noticed the privilege of officers of the Court of Exchequer, and of all revenue officers, to have actions against them removed into and proceeded on in this Court. (2) Although an original writ out of Chancery could not nor can be returnable in this Court so as to proceed to outlawry at the suit of a subject for debt; (a) the uniformity of process act, 2 W. 4, c. 39, s. 56 and 57, now expressly authorizes proceedings to outlaw upon a capias or distringas issued under that act; and the seventh section enables the chief baron to appoint an officer to execute the duties of a filazer, exigenter, and clerk of the outlawries in this Court. (b) And though an affidavit as to the attempt to serve a defendant with process may not be sufficient to warrant a distringas to take his goods, or to entitle the plaintiff to enter an appearance for the defendant, yet it may suffice to authorize the Court to issue a distringas for the purpose of proceeding to outlawry. (c) And upon a judgment of outlawry in the King's of this kind is to usurp the office of a son to make one. Besides, this is nothing like usury. It is a catching bargain, an extortioning post orbit, but no usury. The rule was refused. (u) Williams v. Williams, 1 Tyr. R. 351. (x) Ante, 337. (y) Evans v. Duncan, 1 Tyr. 285; 1 Cromp. & J. 372. (*) Ante, 316, 317; and see R. v. Piekman, 3 Anst. 852; Bedingfield v. Shelford, 8 Price, 584. (a) Horton v. Peake, 1 Price R. 309; 1 Tidd, 38, 132, Supplement, 100; Dax, Pr. Ex. 84; Price Pr. Exc. 52; see 2 Dowl. Stat. 2 W. 4, c. 39, and notes. (b) And see 2 & 3 W. 4, c. 110, s. 149; Tidd's Supp. A. D. 1834, p. 100. (c) Per Ld. Lyndhurst, C. B., and Bayley, B., in Hewitt v. Mellor, 3 Tyrw. 822; 1 Cromp. & Meeson, 720; the form of the note at the foot of the writ is different in such case, see No. 3, sched. 2 W. 4, c. 39, and post. |