CHAP. V. SECT. XIV. Third, HOUSE OF LORDS. 1. From what ceedings in England. Error from Courts of law. (4) have seen that this is now altered in one respect, and the writ of error from the judgment of Common Pleas, in an action commenced in that Court, must be returnable directly in the Exchequer Chamber, and not in King's Bench; yet it cannot be returnable immediately in the House of Lords. (m) And in the case of Lord Macclesfield, who brought a writ of error from a judgment of the Court of Exchequer of Pleas returnable in Parliament, it was effectually objected that it came there per saltum, and ought to have gone first to the Exchequer Chamber, under the 31 Edw. 3; (n) and although it is another maxim that the multiplication of appeals is not to be favoured, (2) and the 1 W. 4, c. 70, s. 8, was probably in part enacted on that principle, yet (with the exception of the proceeding in a superior Ecclesiastical Court in the first instance by letters of request, and thereby ousting intermediate Courts of their jurisdiction,) that is an anomaly unknown in the common law, and to be established only by special enactment. Another general rule is also here to be noticed, viz. that when there is a succession of Courts of Error, and it is known that one of the parties is resolved at all events to carry his case ultimately to the highest tribunal, yet it is considered to be incumbent on each inferior Court fully to discuss, and duly to deliberate before they give judgment, and not to decide hastily as of course pro formâ, which a late Lord Chancellor treated as highly condemnable and improper. (p). We will now proceed to consider more particularly from Courts and pro- what Courts and proceedings a writ of error or appeal is or not sustainable, and first, as regards England, and herein, 1. as respects Courts of Law. We have seen, when considering the jurisdiction of the Exchequer Chamber, that writs of error to impeach the judgment of that Court must, by the express terms of the 1 W. 4, c. 70, s. 8, be returnable in the House of Lords, the enactment being, "from which judgment in error no writ of error shall lie or be had, except the same be made returnable in the High Court of Parliament." (r) But notwithstanding this act unquestionably extends to all judgments in error of the Court of Exchequer Chamber, yet there are still' cases in which a writ of error lies directly from the King's Bench into the House of Lords, without the intervention of a judgment in the Exchequer Chamber. Thus where there has been a judgment in King's Bench upon a writ of error from an inferior Court of Record, then a writ of error is still returnable directly into the House of Lords, because the 1 W. 4, c. 70, s. 8, only applies to judgments of the Courts of King's Bench, Common Pleas, and Exchequer, in actions which were originally commenced in one of those Courts, and to which the writ of error is directed, (s) although on principle there seems to be no reason why in the constitution of Courts of Error the propriety of all judgments whatsoever should not be inquired into and determined in the Exchequer Chamber before the inquiry, should be transferred to the House of Lords. So notwithstanding the statute 1 W. 4, c. 70, s. 8, if a writ of false judgment from the decision of an inferior Court, not of record, be returnable in the Common Pleas, and by the decision there becomes matter of record, and then a writ of error upon the latter judgment be returnable, as it clearly may, in King's Bench, then after judgment there must be a writ of error upon such latter judgment, returnable in the House of Lords, without the intervening tribunal of the Exchequer Chamber.(t) So if a judgment of the Cinque Ports be affirmed or reversed in King's Bench, a writ of error thereupon lies in the House of Lords. (u) And upon a judgment of King's Bench on a writ of error from the Petty Bag, it has been supposed that a writ of error lies directly after judgment in King's Bench to the Lords. (v) At all events it seems that the legal propriety of the decision of the most inferior Courts of Law in England, whether of record or not, may ultimately be investigated as matter of right in this highest tribunal; subject nevertheless, as we shall presently see, to the necessity for finding bail, and some other qualifications introduced only by express enactments. But in general the 1 W. 4, c. 70, s. 8, will apply to all judg ments of King's Bench, Common Pleas, or Exchequer of Pleas, given in an action commenced there, and require the writ of error to be directed first into the Exchequer Chamber, and from thence to the Lords. It seems scarcely necessary to observe, that a writ of error can only be sustained on account of some intrinsic objection apparent on the face of the record, as either in the pleadings (x) or continuances, or the judgment itself, or in respect of objec 11. (s) Ricketts v. Lewis, 2 Crompt. & J. (t) Rol. Ab. 744; Bac. Ab. Error: Palmer's Pr. Lords, 135; and see Ricketts v. Lewis, 2 Crompt. & J. 11. (u) Palmer's Pr. Lords, 136. (r) Palmer's Pr. Lords, 130; 3 Bla. CHAP. V. SECT. XIV. Third, HOUSE OF LORDS. CHAP. V. SECT. XIV. Third, HOUSE OF LORDS. tions appearing upon a demurrer to evidence, bill of exceptions, or special verdict, either annexed to or directly forming part of the proceedings; and in order to succeed in the Court of Error, the objection must be of so substantial a nature as not to be aided either at common law or by any statute of amendment or jeofail. (y) The mistatement of the plaintiff's case, or of the ground of the defence in the pleadings, the misdirection of the judge on the trial, or the mistaken verdict of a jury, can in no case form the subject of objection or inquiry in a Court of Error, unless in the instances above pointed out. Nor can decisions of the superior Courts upon special cases be investigated in a Court of Error, because neither the facts therein stated, nor the decision of the Court as respects them, ever form part of the record or transcript, which is sent to the Court of Error; (2) unless in consequence of leave reserved for that purpose, the facts of the special case be turned, as is the technical expression, into a special verdict, for the very purpose of taking the opinion of a Court of Error upon their effect. It is also an established rule, that a writ of error is not sustainable from or in respect of a rule or order, or interlocutory proceeding of a Court, or of a single judge on a motion or summons or otherwise, or relating to the intermediate stages of proceedings in an action; (a) nor as regards the rules or practice of a Court, or granting or refusing leave to plead double, or granting a new trial; the observations of Chief Justice Tindal, before noticed, are a clear exposition of the law on this subject. (b) So no writ of error is sustainable in respect of an award, even though made a rule of Court; nor in any case where by actual or supposed legal authority the Court has erroneously acted in a summary way; nor in cases of contempt; nor in settlement cases removed into the King's Bench from the sessions; nor from decisions under the Annuity Acts. (c) And although the Court of King's Bench, we have seen, may examine these and many other proceedings summarily or by certiorari, and decide upon the proceedings of the inferior tribunal thereby brought before them, yet in these cases, and in all those where an inferior Court, as the Court of Requests, has been empowered to proceed in a method different from that observed in Courts of common law, the propriety of their judgment or proceeding cannot be the subject of a writ of (y) Lyme Regis v. Henley, 1 Bing. New Cas. 239. (s) 3 Bla. Com. 378; Palmer's Pr. Lords, 130 (a) Palmer's Pr. Lords, 140. error. (c) And in the superior Courts, when a judgment is arrested, there being no entry of a judgment, "ideo consideratum est, &c." consequently no writ of error lies; but if the decision be incorrect, the plaintiff can only proceed de novo. (d) It is also established, that when a bill of exceptions is returned to a Court of Error, the counsel arguing in the latter Court is confined entirely to the matter expressly excepted to, and cannot argue upon other facts however apparent on the face of such bill. (e) Nor will the House of Lords receive from the agent of the plaintiff in error, a petition to refer to the judges the legal points in the case. (f) The observations as regards writs of error in the Exchequer Chamber, are in this respect equally applicable to a writ of error returnable in the House of Lords. With respect to writs of error in fact, as upon the ground of the infancy or coverture of the defendant, or of death before verdict, it has been the general opinion that they are in no case sustainable either in the Exchequer Chamber or in the House of Lords. (g) But it seems questionable whether exceptions do not exist, so that such an objection might be advanced upon a writ of error, returnable in the House of Lords, (g) and tried by transmitting the proceeding as regards the fact to the last preceding Court that had jurisdiction to convene and try a fact by jury. (h) So there are some Courts of Law in England, from which no writ of error lies, because another remedy has been afforded, as from the Court of the Stannaries of the Duchy of Cornwall, for matters touching the Stannaries, there being an appeal to the Warden of the Stannaries, and from him to the Privy Council of the Prince of Wales, as Duke of Cornwall; and if there be no Prince of Wales, then to the King in Council. (¿) Secondly, From Courts of Equity. In general, from Courts of Equity in England, instead of a writ of error, (which issues only to remove the proceedings and judgments of Courts of Law,) the mode of appeal is by petition for leave to Appeal, and (c) 1 Salk. 144, 263. As in the instance of decisions in Courts of Request, whose judgment is not founded on formal pleadings. (d) Palmer's Pr. Lords, 141, 142. (e) Lucas v. Nickolls, cited in Wright v. Tatham, 1 Adol. & Ellis's R. 15; ante, 574, note 9, and 577, 578; and see Frankland v. M'Gusty, 1 Knapp's Rep. 274, S. P.; post, 602, n. (t). (f) Rickets v. Lewis, 1 Bing. New Cases, 196. (g) Ante, 570; and see 1 Archbold's Pract. K. B. by T. Chitty, 330. (h) Palmer's Pract. Lords, 142 to 144; 139, 149, 131, 132, 134, 138; Rol. Ab. 746; Comyn's Rep. 597; 3 Salk. 146. In Palmer's Prac. Lords, 144, Lord Hale's Juris. 152, 153, is referred to, and it seems clear that an issue in fact might be joined in the Lords, and the record thereupon remitted to the next subordinate Court having jurisdiction to award jury process and try a question of fact. (i) 4 Inst. 230; 3 Bla. C. 77; Palmer's Pract. Lords, 141. CHAP. V. SECT. XIV. Third, HOUSE OF LORDS. 2. From Courts of Equity. CHAP. V. SECT. XIV. Third, HOUSE OF by Appeal thereupon to the House of Lords. (¿) And the origin, necessity for, and history of which jurisdiction is concisely stated by Sir William Blackstone. (k) It is said that appeals to the House of Lords from the Court of Chancery were first introduced in A.D. 1581. () This is the mode of obtaining an investigation of the decrees and final proceedings of the Chancellor, Master of the Rolls, Vice-Chancellor, and equity side of the Court of Exchequer, and from all the Courts of Equity in England and Wales; (m) and Blackstone observes, that from decrees of the Chancellor, relating to the commissioners for the dissolution of chauntries, &c., under the 37 H. 8, c. 4, as well as for charitable uses, under the statute 43 Eliz. c. 4, an appeal to the King in Parliament was always unquestionably allowed. (n) But no appeal lies to the House of Lords from an order of the Chancellor in matters of idiotcy or lunacy, there being, as we have seen, a distinction between the jurisdiction of the Court of Chancery and the power of the Chancellor, and in these cases the proper course is to appeal to the King in Council; (o) or, as we have seen, after the death of the lunatic a bill in Chancery must be filed. (p) And it should seem that from the decision of the Vice-Chancellor of Lancaster the appeal is to the Chancellor of the Duchy Court at Westminster. (q) So before the recent Bankruptcy Act, 1 & 2 W. 4, c. 56, s. 37, (r) there was no appeal to the Lords from an order of the Chancellor in matters of bankruptcy; (s) but now an appeal to the Lords in certain cases is given. (t) But no appeal to the Lords is sustainable from the decision of an Ecclesiastical or Maritime or Prize Court in England, nor from any Court Martial, nor from the decision of any foreign Court, even of the British islands of Man, Jersey, Guernsey, Sark or Alderney, or from the colonies. All appeals from those islands and colonies must be to the Privy Council, and from a Court Martial to the King in person. (u) It should seem also that the proceeding appealed from to the Lords must have been a final decree or decision, or of that nature, and not merely an order or interlocutory proceeding. (v) And where a decree has been (i) 3 Bla. Com. 454; Palmer's Prac. Lords, 2, &c. (k) Id. ib. and p. 57. (1) Palmer's Prac. Lords, 276, Introd. ii. (m) Palmer's Prac. Lords; 2 Bla. Com. 104; 3 Bla. Com. 454; Smith's Procedure in House of Lords, i. 109. (n) 3 Bla. Com. 455; Duke's Charitable Uses, 62. (0) Lord's Journ. 14th Feb. 1726; 3 |