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CHAPTER XL

COURTS OF SPECIAL CIVIL JURISDICTION.

THE superior courts of law and equity which have been hitherto considered, have general civil jurisdiction throughout England and Wales. Besides these there is a multitude of courts having special civil jurisdictions, which are defined by considerations either of locality or of the nature of the suits cognizable under them. It is not intended here to enter into a particular account of all these courts, but briefly to refer to the more important of them.

These special courts may for our present purpose be divided into two classes,-firstly, those which belong to some general system of judicature; secondly, certain isolated jurisdictions.

To the first of these classes belong the Ecclesiastical Courts, the Probate and Divorce Courts, the Admiralty Courts, the County Courts, and the Bankruptcy Courts.

The Ecclesiastical Courts are the courts of the archbishops, bishops, and their derivative officers. Of the origin of these courts we have spoken in the chapter relating to the origin of courts().

The ecclesiastical jurisdictions are of two kinds-contentious and non-contentious. Those courts which have a voluntary or non-contentious jurisdiction need not be here

(a) By the statute 1 Eliz. c. 1, "An Act to restore to the Crown the ancient jurisdiction over the estate ecclesiastical and spiritual, and abolishing all foreign powers repugnant to the same," all ecclesiastical jurisdiction for the visitation of the ecclesiastical state and persons, and reformation of offences, is annexed to the Imperial Crown. (Sec. 17.)

described, as they are not judicial. They are, in the words of Blackstone, who evidently did not admire them, “merely concerned in doing or selling what no one opposes, and which keep an open office for that purpose, as granting dispensations, licences, faculties, and other remnants of Papal extortions" (a). Of these courts the chief is the Faculty Court, belonging to the Archbishop of Canterbury. The voluntary jurisdiction of all these courts with respect to wills and letters of administration, is now transferred to the Probate Court, to be mentioned presently.

The ordinary ecclesiastical courts are the provincial or archiepiscopal courts of the provinces of Canterbury and York; and the diocesan courts in each diocese.

The diocesan courts are firstly the consistory court of each bishop, exercising jurisdiction throughout the whole diocese; secondly, courts of commissaries appointed by the bishops, and courts of archdeacons or their officials, exercising limited jurisdiction in each diocese. The Consistory Court was formerly held in the nave of the cathedral, or in some aisle or chapel of the cathedral, the bishop presiding; but is now usually held by the bishop's chancellor in some convenient place in the diocese (b).

From the archdeacons there is an appeal to their bishops, and from the Bishops' Courts appeal lies to the courts of the Archbishops of Canterbury and York, which are independent of each other. The court of appeal of the province of Canterbury is the Court of Arches, so called because anciently held in the church of Saint Mary-le-Bow (S. Maria de Arcubus). From the Archbishop's Court an appeal lies to the judicial committee of the Privy Council.

Besides the ordinary ecclesiastical jurisdictions just mentioned, there are many peculiar jurisdictions. Thus the Archbishop of Canterbury has a Court of Peculiars, which has jurisdiction over several deaneries not in the diocese of Canterbury. There are also numerous other royal, decanal, subdecanal, prebendal, rectorial, vicarial, and ma(a) 3 Blackstone, 60.

(b) Burns's Ecclesiastical Law,' tit. "Consistory."

norial peculiars (a). The jurisdiction of these peculiars is both contentious and voluntary, but the exercise of the former kind of jurisdiction is infrequent, and a great part of the voluntary jurisdiction has been abolished by the Act establishing the new Probate Court.

Causes cognizable in the Ecclesiastical Courts were formerly classified as beneficial, matrimonial, testamentary, and criminal. The testamentary jurisdiction is now transferred to the Probate Court and others, and the matrimonial jurisdiction, except as to granting marriage licenses, is transferred to the Court for Divorce and Matrimonial Causes. The criminal jurisdiction has been considered in the preceding chapter.

The beneficial jurisdiction relates principally to nonpayment of ecclesiastical dues and fees, and certain suits to determine rights of ecclesiastical patronage, and validity of presentations to livings(b). Another class of suits under this jurisdiction are those brought by the incumbent of a benefice against his predecessor, or if he be dead, his executors, for dilapidations of the chancel or parsonage house.

The pleadings in the Ecclesiastical Courts somewhat resemble the pleadings in the Court of Chancery; both conform more nearly to the civil than the common law, for the pleadings are at large, as has been already explained in a previous chapter, and do not tend to definite issues. Ecclesiastical causes commence by citation of the defendant. Then follow the pleadings. In causes not criminal and not summary, the first plea is the complainant's libel (c),

(a) An account of these jurisdictions is given in the report of the commission appointed in June, 1830, to inquire into the practice and jurisdiction of the ecclesiastical courts. (See 12mo edition, Lond. 1832, p. 22.)

(b) As to the jurisdiction of the Ecclesiastical Courts with respect to rights of Advowson, see Burns's 'Ecclesiastical Law,' tit. "Advowson."

The Ecclesiastical Courts have power to take cognizance of suits concerning church rates, when the validity of them is in dispute; but where the validity of them is not in dispute, a summary jurisdiction is given to justices of the peace, with respect to the recovery of tithes and rates in certain cases. (See 5 & 6 Will. IV. c. 74; Gray v. Backhouse, 9 Jurist, N. S. 54.)

(c) But criminal cases in the ecclesiastical courts run in the name of the

which corresponds to the declaration at common law or the bill in Chancery, and contain his case. To this succeeds the defendant's answer upon oath, in which he denies or extenuates the charge. The defendant may also, in certain cases, propound his defensive allegation, which entitles him to an answer from the plaintiff upon oath (a). The parties then proceed to proofs; formerly the evidence of the witnesses was, as in the Court of Chancery, taken down in writing by an officer of the court, but now, in any suit or proceeding in any Ecclesiastical Court, witnesses may be examined orally in open Court(b).

The Court of Probate.-The jurisdiction of the Ecclesiastical Courts has been materially diminished by statutes of 1857, constituting the Courts of Probate and Divorce and Matrimonial Causes.

All voluntary and contentious jurisdiction of the ecclesiastical and other courts in testamentary causes, and with respect to granting or revoking letters of administration, is now taken away from those courts and transferred to other courts, of which the principal is a "Court of Probate" sitting in London. The judge of this court is to be appointed by the Crown, and has jurisdiction throughout all England (c).

The jurisdiction of the court consists of two parts,—voluntary and contentious. The former is exercised in the grant of probate of a will, or of letters of administration in common form, where there is no contention as to the grant. The latter is exercised where the grant is contested.

The grant of probate of a will authenticates the right of the executor appointed by the will to deal with his testator's personal estate, and execute his office of executor. But where a man dies intestate, or without appointing an executor, or judge, and are called causes of offices, or causes of office of judge promoted. In such causes the proceeding is not by libel, but by articles. (Report of Commission on Ecc. Courts, p. 37.)

(a) Geldart's Hallifax on the Civil Law, book iii. ch. 11. (b) 17 & 18 Vict. c. 47.

(c) 20 & 21 Vict. c. 77.

the appointment fails, letters of administration may be granted, conferring on an administrator an office equivalent to that of an executor. The grant of probate or administration in "common form" is now made either in the Principal Registry in London, or in the District Registries throughout England and Wales, defined by the Act just mentioned.

But where there is a contention as to the right of probate or administration, or where such contention is apprehended, the right may be determined judicially. The right may be disputed on many grounds, as that a will has been made by a person of unsound mind, or has not been properly executed, or that the claimant to the office of administrator is not entitled to it.

Parties interested in the estate of a deceased person may enter caveats in the proper registry, entitling them to be warned before grant of probate or administration, so that they may have opportunity to appear and oppose the grant. The executor or claimant of grant of probate of a will may be called upon by parties interested to proceed, or of his own accord may proceed, to prove it in solemn form, after citation of parties interested, who, if they do not appear, are in general thenceforth barred from contesting the grant of probate. A probate or grant of administration may also be revoked on a suit by citation (a).

The contentious testamentary jurisdiction is exercised in all cases by the Court of Probate, excepting that jurisdiction is given to the County Courts (which will be subsequently described), where the estate of the deceased does not exceed a small defined amount. An appeal lies from these courts to the Court of Probate, as to questions of law and questions of admission or rejection of evidence. The Court of Probate has power to cause any question of fact arising in suits under this Act to be tried before the Court itself, or by means of an issue directed to any of the superior courts of law (b).

a, Williams, Law of Executors and Administrators,' part i. books 4, 6. (b) 20 & 21 Vict. c. 77. The practice of the Court of Probate, and the