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1. COURTS OF REQUESTS AND COUNCILS OF CONCILIATION.
The organization of Courts of Requests is detailed in Tidd's Practice, vol. 2, pp. 988–993. They are substantially courts established in various cities and towns for the recovery of small debts, not exceeding, generally, five pounds. In such cases a plaintiff cannot recover costs if he sue elsewhere.
A Council of Conciliation, to adjust amicably matters of difference between masters and workmen, not including servants in husbandry, may be licensed and thus come into existence under 30 & 31 Vict. c. 105 (1867).
II. COUNTY COURTS.
There had existed in England from the time when the kingdom was divided into shires or counties, that is from the time of Alfred, a court in every county, known as the County Court. They were anciently the chief courts, but after Magna Charta their powers were restricted, and they were ultimately reduced in civil cases to actions involving no greater amount than forty shillings, where the cause of action arose in and the defendant dwelt in the county; in addition to which the practice in these courts was complicated and dilatory as well as expensive, and in certain cases actions had to be brought upon their judgments to render them effectual.
In 1846 (28th August, 9 & 10 Vict. c. 95), an Act of Parliament was passed, by which they were converted into most useful courts, and they are now among the most popular tribunals in England.
Under this act the counties of England were divided into districts, in each of which a County Court was directed to be held, for the recovery of “any debt, damage, or demand, not exceeding fifty pounds," at least once a month, or at such other intervals as a Secretary of State may direct. There are in England and Wales fifty-two counties, which in 1857 comprised sixty circuits, each circuit embracing several towns or judicial districts, and for each a county judge is appointed by the Lord Chancellor. The city of London proper is not embraced in this arrangement, but has a court of its own for the recovery of small debts, but the other parts of London are.
In addition to its common-law jurisdiction, which has been much extended, the County Court has recently had important equitable and admiralty jurisdiction conferred upon it (31 & 32 Vict. c. 71); and it may exercise the powers of a Court of Probate in certain cases.
The mode of procedure in law and equity, is regulated by a complete set of rules, found in the “Weekly Notes” of January 11th 1868.
The judge tries an action for the recovery of money, unless, where the amount is beyond five pounds, one of the party demands a jury. Either party may also demand a jury in cases of interpleader, replevin, and proceedings in the nature of scire facias ; other actions are tried by the judge alone. Ten jurymen are summoned to attend a court for the trial of causes, unless the judge shall otherwise order.
The judge may direct a judgment for money to be collected by instalments, or he may stay the collection or the payment of the instalments temporarily, in cases where the party is unable from sickness or other sufficient cause to discharge the debt.
The judge may in his discretion grant a new trial.
These courts are organized under the following acts: 9 & 10 Vict. c. 95 (28 Aug. 1846); 12 & 13 Vict. c. 101 (1 Aug. 1849); 13 & 14 Vict. c. 61 (14 Aug. 1850); 15 & 16 Vict. c. 54 (30 June 1852); 19 & 20 Viet. c. 108 (29 July 1856); 28 & 29 Vict. c. 99 (1865); 31 & 32 Vict. c. 71.
III. THE HIGHER COMMON LAW COURTS. 1. The Court of Common Pleas.—The jurisdiction of this court is well known. It is mentioned in Magna Charta, and was at that early day fixed at Westminster. It consists of a chief justice and five' puisne judges. An appeal lies from this court to the Exchequer Chamber, which is in that case composed of the judges of the Courts of Queen's Bench and the Exchequer.
2. The King's or Queen's Bench.—This court has both civil and criminal jurisdiction. It also keeps inferior courts within the bounds
' Each of these courts, until recently, consisted of five judges. An "additional” judge was appointed in each of the courts August 24th and 25th 1868 : Weekly Notes 499, September 5th 1868. The authority to make such appointment is found in 31 & 32 Vict. c. 125. The principal object of this increase of number, is to form a "rota” of judges to try petitions of elections--one judge being taken from each court.
of their authority, commands magistrates and others to do their duty when there is no other specific remedy, and superintends all civil corporations. It consists of a chief justice and five' puisne judges. An appeal lies from its decisions to the Exchequer Chamber, which in that case consists of the judges of the Courts of Common Pleas and Exchequer.
3. The Court of Exchequer.—This was at one time both a court of law and a court of equity. Its jurisdiction as a court of equity is abolished and transferred to the Court of Chancery: 5 Vict. c. 5. It is now only a court of law and revenue.
Its ordinary jurisdiction as a court of law was originally gained by a legal fiction. It may now be said that nearly every civil case can be brought before this court, though it cannot issue the prerogative writs of the Queen's Bench. It consists of a chief baron and five' puisne barons; an appeal lies from this court to the Exchequer Chamber, which in that case consists of the Judges of the Queen's Bench and Common Pleas.
It is enacted by 13 Wm. III. c. 2, that the commissions of the judges of the superior courts shall be made during good behavior, and their salaries ascertained and established; but that they may be removed on address of both Houses of Parliament. By 1 Geo. III. c. 23, and 1 Ann. st. 1, c. 8, they are continued in office notwithstanding the death of the king, for six months after such decease. The rule of life tenure was adopted, “ because the independence and uprightness of the judges was looked upon as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of the people; and as most conducive to the honor of the state,” Commons Journals, 3d March 1761. Provision is made for a retiring pension after fifteen years' service.
4. The Commission of Assize and Nisi Prius tries such causes in the great Courts of Common Pleas, Queen's Bench, and Exchequer, as are ripe for trial by jury. It is composed of two or more commissioners, of whom a judge of the superior courts, or a sergeant at law, or barrister of certain standing, must be one, who are twice in every year (except in certain northern counties) to hold Circuit or “Nisi Prius” courts in each county. This rule does not apply to London and Middlesex, where courts of this
1 See note on preceding page.
kind are held much more frequently to accommodate the pressure of business. The practical result of this system is, that the judges of each of these courts try questions of fact with a jury, and also sit in banc to review the decisions which are made in the court below.
It is substantially the system now existing in New York, and permits a judge to review in banc his own rulings at Nisi Prius.
IV. THE SUPERIOR COURTS OF EQUITY. The judges in the Courts of Equity consist of three ViceChancellors, a Master of the Rolls, two Lords Justices, and the Lord Chancellor.
1. The Courts of the Vice-Chancellors. The first act upon the subject of the Courts of the Vice-Chancellors, 53 Geo. III. c. 24 (23d March 1813), created a single Vice-Chancellor, known as the Vice-Chancellor of England. Under a late act, 5 Vict. c. 5, two additional Vice-Chancellors were created : see, also, 14 & 15 Vict. c. 4; 15 & 16 Vict. c. 80. These statutes substantially provide that each of the Vice-Chancellors shall hold a separate court, and may exercise all the jurisdiction of the Court of Chancery, subject to the appellate jurisdiction of the Chancellor, or of the Court of Appeal in Chancery. There can be no appeal from one Vice-Chancellor's decision to another. The tribunals of the Vice-Chancellors form substantially three separate courts of original jurisdiction in equity, which are called by the name of the Vice-Chancellors who sit in them.
2. The Master of the Rolls was originally the chief of the masters in chancery, and has, for a long period, administered justice in a separate court. His jurisdiction, which was for a long time in dispute, and which formed the subject of a learned examination, attributed to Lord Hardwicke, is now regulated and defined by the statutes of 3 Geo. II. c. 30, and by 3 & 4 W. IV. c. 94, $ 24. An appeal lies from his judgment to the Lord Chancellor, or to the Court of Appeal in Chancery. Thus, by reason of this tribunal, there is substantially a fourth Court of Equity of original jurisdiction. The Master of the Rolls is also custodian of the public records : 1 & 2 Vict. c. 94. This judge is sometimes a peer, and can, in that case, of course, participate in the judicial business of the House of Lords. This is the case with the present judge, Lord ROMILLY.
• 3. The Court of Appeal in Chancery.—The office of Lord Justice of the Court of Appeal in Chancery was created by 14 & 15 Vict. c. 83. This act provided for a Court of Appeal in Chancery consisting of two Lords Justices and the Lord Chancellor. In practice, the court is held, in ninety-nine cases out of a hundred, by the two Lords Justices. It
be held, however, by one of the Justices with the Lord Chancellor, or by the Lord Chancellor alone; or by either of the Lords Justices under certain restrictions alone: 30 & 31 Vict. c. 64; 31 Vict. c. 11. It is only the judicial powers of the Court of Chancery that are vested in this tribunal—except when the Lord Chancellor is sitting alone. The judges of this court may be designated by the Lord Chancellor to sit for either of the Vice-Chancellors, or the Master of the Rolls, in case of their inability to hold a court. The salary of each Lord Justice is £6000, with provision in certain cases of a retiring annuity of £3750, after fifteen years of service. An appeal lies to this tribunal from the decisions of the Vice-Chancellors and Master of the Rolls, and thence to the House of Lords. It is, however, the final Court of Appeal in Bankruptcy Cases, exclusive of the Lord Chancellor.
This court, though always well manned, is considered by the best authorities to have a faulty construction, as the two judges often differ in opinion, whereupon, the case substantially remains undecided. In such a case, there is a technical affirmance of the decree of the lower court.
All the equity judges, already noticed, hold offices during good behavior, in the manner described respecting the judges of the courts of law.
4. The Lord Chancellor. The jurisdiction of the Chancellor is of two kinds—ordinary and extraordinary. In the ordinary jurisdiction he observes the order and method of the common law; the extraordinary jurisdiction is that which he exercises as a Court of Equity.
The jurisdiction of this court is so well known that it is unnecessary to do more than allude to it. The Chancellor holds his office not for life, but at the will of the sovereign. An appeal lies from his judgments to the House of Lords. He hears appeals from the Vice-Chancellors and Master of the Rolls, either alone, or as a member of the Court of Appeal in Chancery. The office may be filled by a person having the title of Lord Keeper, or in