THE

CONSTITUTION AND JURISDICTION

OF THE

Court of Common Pleas at Lancaster.

THE Court of Common Pleas at Lancaster is the Court in which Her Majesty, within the County Palatine, and through Her Justices there, administers the Common Law, not by virtue of her royal prerogative, but in right of her Duchy and County Palatine of Lancaster. The Duchy appears to be of somewhat earlier creation than the County Palatine, whose peculiar privileges and honours were first bestowed by Edward III. upon Henry Plantagenet, Duke of Lancaster. The privileges. of the Palatinate were confirmed and enlarged by the same king in favour of his son, John of Gaunt, who, upon the death of his father-in-law, Henry Plantagenet, was created his successor in the Duchy. By a Charter, which is dated 1377, the Duke was entitled to have, within the County of Lancaster, "Cancellariam suam, as Brevia sua sub sigillo suo pro officio "cancellariæ deputando consignanda, Justiciarios suos, tam ad placita coronæ quam ad quæcunque alia placita communem "legem tangentia tenendum, ac cognitiones eorundem, et quascunque executiones, per Brevia sua et ministros suos ibidem, "faciendum, et quæcumque alia libertates et jura regalia, ad "comitem palatinum pertinentia, adeo integre et libere sicut "Comes Cestriæ, infra eundem Comitatum Cestriæ, dignos"citur optinere." Within the County of Lancaster, by virtue of its privileges under this and later charters, the law has been administered for centuries, by courts of independent local juris

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diction; not only by a Court of Common Pleas, but also by a superior court of criminal jurisdiction, and a Court of Chancery.

The Court of Common Pleas at Lancaster, therefore, is a superior Court of Record, exercising, within the limits of the County Palatine, a jurisdiction similar to that of the superior Courts of Common Law at Westminster.

ASSIZES.

The court sits for the transaction of business during the Assizes, which correspond in certain respects to the Terms, as observed by the courts at Westminster. Suitors, however, in

this court have always derived peculiar advantages from the absence of that distinction between term and vacation, which formerly was the source of great inconvenience to suitors in the courts at Westminster. Before the year 1835, the Lancashire Assizes were held only at Lancaster, the county town; in that year the county was divided, for the purposes of Assizes, into two divisions—the Northern division, and the Southern division; and Assizes have since been held at Liverpool as well as at Lancaster. Recently the Southern division has been divided into the Salford division and the West Derby division; and Assizes are now held at Lancaster, Manchester, and Liverpool. Before the C. L. P. Act, 1852, causes, depending in the superior courts at Westminster, were sent to this court for trial by a writ of Mittimus, which was directed to the Justices of this court, and commanded them to issue the jury process, and to send the record back, after trial, to the court from which the cause came. By the C. L. P. Act, 1852, sec. 103, it is enacted that "Records of the superior courts "of common law shall be brought to trial, and entered and "disposed of in the counties palatine, in the same manner 66 as in other counties." The writ of Mittimus is, therefore, no longer necessary.

In order further to assimilate the practice in Lancashire to that in other counties, with respect to the trial of issues from the superior courts at Westminster, the 18 and 19 Vic., cap. 45,

after reciting the above section of the C. L. P. Act, 1852, and that, in pursuance of 27 Hen. VIII., cap. 24, sec. 5, one Chief Justice and one other Justice, being respectively judges of the superior courts at Westminster, have been from time to time constituted and ordained, by grants contained in separate letters patent under the seal of the County Palatine of Lancaster,-enacts as follows:

It shall be lawful for Her Majesty, her heirs and successors, hereafter to issue commissions of assize under the seal of the County Palatine of Lancaster, directed to the judges appointed for the time being to the respective offices of Chief Justice and Justice of Common Pleas within the said County Palatine of Lancaster, and to such of Her Majesty's counsel learned in the law, sergeants and barristers-at-law, having patents of precedence or precedence within the bar, of the County Palatine of Lancaster, and other sergeants-at-law to be from time to time selected for that purpose, authorizing and commanding them to take all the assizes, juries and certificates, before whatever Justices arraigned, in the said County of Lancaster, in like manner and with the like effect as such commissions are issued into other counties, together with the like writs or commissions of association, and other writs and proceedings, as in other counties, and that every person so authorized shall have the like power to be and act as a judge or commissioner of assize for the trial of issues from the Superior Courts of law at Westminster, and other issues in the said County Palatine of Lancaster as any person so authorized has in any other county, and shall also be deemed to be authorized by such commission, and shall thereby have full authority to act as a judge for the trial of any issues of fact in any causes depending in the said Court of Common Pleas at Lancaster: provided, and it is declared, that nothing herein contained shall deprive the Chief Justice or Justice appointed or so ordained as aforesaid by grant contained in letters patent of any authority or jurisdiction to try issues from the Superior Courts at Westminster and other issues in the said County Palatine of Lancaster, and that all trials of such issues heretofore had or to be had before such Chief Justice or Justice constituted or ordained as aforesaid shall be deemed to have been and to be tried by competent authority, and that the acting Prothonotary for the time being of the Court of Common Pleas at Lancaster shall continue to officiate as associate in the said County Palatine of Lancaster, as heretofore, and shall

accordingly be named in such commissions of association and other writs and proceedings.

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JUDGES.

The judges of this court, before the 4 and 5 Will. IV., cap. 62, were always the judges of the courts at Westminster, who had chosen the northern circuit, and were not more than two in number. By sec. 24 of that Act, it was provided "that it "shall and may be lawful to and for the King's Most Excellent Majesty, in right of his Duchy and County Palatine of "Lancaster, from time to time to nominate and appoint all or any of the judges of the superior courts at Westminster to be "judges of the court of Common Pleas for the County Palatine "of Lancaster: provided nevertheless, that the judges before "whom the Assizes for the said County Palatine of Lancaster "shall from time to time be held, and their respective officers, "shall alone be entitled to the fees and emoluments heretofore "received by the judges of the said County Palatine and their "officers." In pursuance of this statute, all the judges of the superior courts at Westminster were made judges of this court. For the holding of Assizes in Lancashire, commissions are issued to two of the judges, by which they are appointed respectively Chief Justice and Justice of all manner of pleas within the County Palatine. These commissions are under the seal of the County Palatine, and are similar to those which were issued before the 4 and 5 Will. IV., cap. 62. The Spring Assizes, before the year 1806, were attended by only one judge, and the name of the Chief Justice of the Queen's Bench was entered on the rolls of the Assizes as the Chief Justice of this court. *

The provisions of 18 and 19 Vic., cap. 45, as to commissions of Assize in Lancashire have been cited above. Formerly the judges could not in Lancashire, as in other counties, be assisted by a sergeant or Queen's counsel in the trial of causes at the Assizes; but under 18 and 19 Vic., cap. 45, commissions may now be issued to sergeants and others, authorizing them to act as judges for the trial of issues in the County of Lancaster.

* Wareing's Pr. of C. P. at L., p. 89.

GENERAL RULES AND ORDERS.

It will be convenient to take this opportunity of referring to the powers, which are vested in the judges of this court, of making general rules and orders for the regulation of the practice of the court.

By the 4 and 5 Will. IV., cap. 62, sec. 17, it is enacted "that it shall and may be lawful for the judges of the said "court of Common Pleas at Lancaster for the time being, or any "two of them, from time to time to make such orders, rules "and regulations, for altering and regulating the mode of "pleading in that court, and for altering the mode of entering "and transcribing pleadings, judgments and other proceedings "in actions at law therein, and touching the voluntary admis"sion, upon any application for that purpose, at a reasonable "time before the trial of any action of one party to the other, "of all such written or printed documents, or copies of "documents, as are intended to be offered in evidence on the "said trial by the party requiring such admission, and touching "the inspection thereof before such admission is made, and "touching the costs which may be incurred by the proof of such "documents or copies on the trial of the cause, in case of the "omitting to apply for such admission, or the not producing of "such documents or copies for the purpose of obtaining admis"sion thereof, or of the refusal to make such admission, as the 66 case may be, and as to the said judges of the said court for "the time being, or any two of them, shall seem meet."

The 4 and 5 Will. IV., cap. 62, was an "Act for improving "the practice and proceedings in the court of Common Pleas "of the County Palatine of Lancaster." By the C. L. P. Act, 1852, sec. 234, so much of this Act as relates to the duration of writs, to alias and pluries writs, and to the proceedings necessary for making the first writ in any action available to prevent the operation of the statute of limitations, is repealed; but it is expressly enacted by the same section that the other provisions of the Act, so far as they are not altered by or inconsistent with the provisions of the C. L. P. Act, 1852, are to remain in force.