Posse Comitatus-Costs-Rehearings and Appeals.

392

the court granted an injunction for yielding up possession to the party for whom the decree was (a). If this were disobeyed, the court granted a commission to justices of the peace to put the party in possession; and in case of need, a writ of assistance was awarded, directed to the sheriff, commanding him to be aiding and assisting to the justices, with the posse comitatus, to putting the party in possession, and to apprehend the contemners of the court (b); so that though the court could not bind the right (c) it secured the possession, as the Prætors did under their extraordinary jurisdiction (d). Sometimes, as before noticed, the parties were ordered to enter into recognizances to perform the order of the court (e).

The Courts of Law, down to the time of Elizabeth, uniformly denounced all these modes of enforcing decrees, excepting by simple imprisonment (f), as being illegal (g); but the Chancellors persevered, and the present practice is founded on the course which was then established.

The amount of the costs to be paid by either party was sometimes determined at the hearing, and conscience was applied to the fixing of the amount so to be paid (h).

*CHAPTER X.

REHEARINGS AND APPEALS.

[*393]

REHEARINGS of causes were very frequent, and even, as before mentioned, after they had been referred to arbitrators. This practice was one of the great subjects of complaint in the time of James I. as it was indeed for a considerable time afterwards, owing to its creating in one cause "generations or pedigrees of orders" (i).

On these occasions the Master of the Rolls, or some of the Judges, were usually called in (k).

(a) Tothill, 37. 46. This was after injunctions for possession on preliminary proceedings had been abolished.

(b) Tothill, p. 221, temp. Eliz. ib. p. 99; Reg. Lib. A. 1566, fo. 15, &c.; Prac. Reg. 424. Lord Coke, a. D. 1621, Com. J. i. p. 574, said these writs of assistance were damnable things, for there was no writ of error as there was in a writ of right, p. 559. This had been determined 37 Hen. VI. 13, 1 Rep. Ch. 8. Now by Lord Cottenham's General Orders, 10th May, 1839, Sanders, i. p. 854, founded on the statute, a decree may be enforced by writ of fieri facias and elegit as at law; and the process in this, as in all other instances, for enforcing the decrees and orders of the court, is much shortened, see Kennedy's Code of practice,

257.

(e) Lord Ellesmere's Treatise, 62.

(d) See Appendix to Part I. supra, et v. infra.

(e) Reg. L. 1573, fo. 161, &c. This is wholly obsolete.

(f) Y. B. 2 Rich. III. 9. (g) See 1 Eq. Abr. 130, note (†). (h) Reg. Lib. A. 1590, fo. 153. Bill dismissed; plaintiff is adjudged by the taxation of the Master of the Rolls to pay the defendant 10. only, "in respect he hath married the defendant's daughter," for his wrongful vexation therein; the order is signed by the Master of the Rolls alone. Amount of costs for contempt, fixed by the Lord Keeper, A. 1492-3, fo. 77.

(i) Parkes' Hist., temp. James I. p. 126; Commonwealth, p. 125, and Charles II. p. 219; North's Life of Guildford, p. 201. (k) V. sup. p. 283, Chap. VII.

293

Originally no Appeal but to the King-Bills of Review.

Cases of great difficulty were sometimes adjourned to be heard before the Chancellor and all the Judges in the Exchequer Chamber (a). But the Lord Chancellor could not adjourn a case for difficulty out of the English Court of Equity into Parliament as might be done by the Courts of Common Law (b).

The very nature of the extraordinary jurisdiction of the Court of Chancery precluded all notion of appeal (excepting reversal by Act of Parliament) but to the King himself. The jurisdiction was founded on prerogative (c); originally it was exercised by the King himself, under advice no doubt, and generally of the Chancellor (d). It was not delegated to the Curia Regis from which the different Courts of Common Law had emanated, nor permanently to the Council. The Emperors, it will also be remembered, had reserved to themselves personally the office of applying the undefined principles of equity to particular cases requiring special interference.

An appellate jurisdiction, therefore, in respect of decrees of the Court of Chancery, could not have resided in the Lords, as representing the Curia Regis, much less in the judges of the superior Courts, who had *branched off from the Curia Regis, and whose jurisdiction was [*394] founded entirely on the King's writ in each particular case (e). Besides, the Chancellor was the superior in rank to all Lords, whether of the Lords' House or of the Council, and to the Judges. The King might indeed, without any violation of principle, have delegated his prerogative in any particular case to whomsoever he might think fit, to review a decision of the Chancellor, made under the general delegation under which his jurisdiction was exercised. But in the early state of the court, when the principles of equity, conscience, and honesty (f) were undefined, otherwise than as they were to be collected from the Roman law, with which the Chancellor and his Council were alone familiar, it was not likely that any decree of the Chancellor founded on such principles should have been subjected to the review of any other person or tribunal. The King himself would be the proper person to apply to in a glaring case of failure; no doubt, as is before mentioned, Parliament might reverse a decree, but not by way of appeal.

A kind of substitute for an appeal was put in practice in the time of Henry VIII., by filing a bill of Review, which was in the nature of a writ of error. Errors in matter of Law and of Conscience were good grounds for such a bill; but errors in mere matters of fact were not (g). However, in the reign of Elizabeth, at which time, as we shall see in the next Chapter, settled principles of equity had been formed, and

(a) Y. B. 21 Edw. IV. 23; C. P. Coop. Append. 548; Lord Ellesmere, p. 51. (b) Lord Nottingham, 3 Ch. Ca. 52. (c) V. sup. p. 367.

(d) By the Ordinance 8 Edw. I. it was ordered, "that if the affairs are of Grace, so that the Chancellor and others cannot do without the King, then they shall bring them with their own hands before the King to know his pleasure," Ryley, Plac, Parl. 442, Parkes' Hist. 29. "The Chancery," said James I.," is independent of any other court, only under the King, teste meipso, from

which no appeal, yet I am bound to maintain others, as this, not to suffer wrong." Speech of Ja. I. in the Star Chamber, A. D. 1616; Annals of King James, &c., by Frankland, p. 23. The Commons in their im peachment of Lord Bacon, 1621, said there was no appeal excepting to Parliament, ib. 53. (e) V. sup. p. 226. &c.

(f) V. sup. p. 339, temp. Edw. III.

(g) Rolle's Abr. i. p. 382, temp. Hen. VIII. and James I. A further proof, if any were needed, that there was a law of the Court of Chancery.

References to Judges to examine into Decrees-Commissions.

394

precedents were established and commonly referred to as of authority, great dissatisfaction appears to have existed, that there was no appeal from decisions which frequently in their effects so materially affected the rights of property, more especially that description which was called Franc Tenement, which was still the object of a kind of superstitious regard (a). In consequence of a complaint of this nature, Elizabeth referred the question to the Judges (b). They certified that the Queen might, on petition, refer a decree of the Court of Chancery to the Judges, but not others, to examine and reverse it if they should see cause; and, as Rolle reports the case, the then Lord Chancellor (Keeper) appears to have acquiesced in the resolution (c).

In the 42 & 43 Eliz. Queen Elizabeth, on the petition of Sir Moyle Finch, referred a case which had been decided by Sir T. Egerton *to two Judges, and they reported their opinions against the [*395] decree, whereupon it was reversed by the Lord Keeper (d).

In the early part of the reign of James I., the Lords exercised an appellate jurisdiction over Common Law suits, under delegation by writs of error issued by the Crown, authorizing them to adjudicate in the particular case, just as might have been, as regards suits heard originally and by way of appeal in the Curia Regis, before the Courts of King's Bench and Common Pleas had been removed from it.

In the same reign, the corruptions alleged against Lord Bacon caused the attempt to establish an appeal to the Lords against the decrees of the Chancellor to be revived (e); but a committee appointed to investigate the subject reported, as we might expect, that there was no precedent of the exercise of jurisdiction by the Lords over decrees of the Chancellor, except under the authority of some writ, commission, indorsement of petition, or other act emanating from the Crown (f); and a remonstrance having been made by the Commons, the Lords acquiesced, by procuring a commission from the Crown, to enable them to review the particular case (g).

In the reign of Charles I., the Lords ordered a case to be argued by counsel at the bar of the House, but the Parliament was dissolved before the cause was heard. However it appears then to have been considered, that the proper course for reversing decrees of the Court of Chancery was either by an Act of the whole Parliament (h), or by special commission from the King.

In the twelfth year of the reign of Charles I., a commission was granted by the King to the Master of the Rolls, to call in a Judge to

Jurisdiction to the Lords' House. The Lords also at this time adjudicated in original suits brought by petition before themselves, which, as before mentioned, on the remonstrance of the Commons, they gave up.

(g) Hargr. Pref. to Sir M. Hale. I presume this is the case referred to by Sir W. Blackstone, 16 Dec. 1621, vol. 3, p. 454.

(h) There were three bills depending in Charles the First's fourth Parliament, for reversing decrees in the Court of Chancery, Hagr. Pref.

395

Establishment of the Appellate Jurisdiction of the Lords.

examine a decree of the Chancellor, by way of appeal. The Master of the Rolls called in Justice Cooke, and they confirmed the decree (a).

I propose now to trace the Appellate Jurisdiction of the Lords to its final establishment (b). The first direct petition from a decree of the Lord Chancellor which was followed by an adjudication reversing the decree, not founded on an express delegation from the Crown, was, *according to Sir Matthew Hale, in the year 1640, during the [*396] sitting of the Long Parliament. In the time of the Commonwealth, in 1646 and 1647, the case of Maynard and Lilburn gave rise to a discussion on the subject; and the general opinion of the lawyers of the time, with the remarkable exception of the celebrated Prynne, was that this assumption of jurisdiction was unconstitutional. It was insisted that the jurisdiction resided in the Parliament. The important case of Skinner v. The East India Company, A. D. 1668 and 1670 (c), produced a controversy between the two Houses, which ended virtually in dispossessing the Lords of their assumed original jurisdiction in civil suits. A similar controversy took place in the 4th Session of the Long Parliament of Charles II., in regard to the appellate jurisdiction still assumed by the Lords over decrees of the Court of Chancery. In this controversy, the Chancellor sided with the Commons; but, at length, the Commons appear to have considered that it was better to leave the appellate jurisdiction to the Lords, than to persist in their objection, which would have in all probability given it to the King or his nominees (d).

From that time the appellate jurisdiction of the Lords has been acquiesced in and exercised without intermission down to the present day (e).

GENERAL ORDERS ISSUED FOR REGULATING THE PRACTICE AND MODE OF PROCEDURE, AND FOR CORRECTING ABUSES.

SOME general orders were issued by the predecessors of Lord Bacon for correcting particular inconveniences (f), but he was apparently the

(b) Mr. C. P. Cooper, in his parliamentary proceedings in regard to the Court of Chancery (1828), has given from Mr. Hargrave and Sir M. Hale a full summary of the history of the Appellate Jurisdiction, which I have principally followed.

(c) See Lingard's Hist. xii. 194. 206-7; State Tr. vi. 762-70.

(d) Hargr. Pref. p. 163, 4, 5; Lord Campbell's Lives, iii. p. 324-5.

(e) 3 Bla. Comm. 455; Show. Parl. Ca. 81. It was not, however, till 1726 that the ap

pellate jurisdiction of the Lords over Interlocutory orders and Summary proceedings was completely established. In the same year the Lords decided not to assume appellate jurisdiction in matters of Lunacy, C. P. Cooper, Proceedings, &c. 161.

(f) Lord Ch.Wriothesley, afterwards Earl of Southampton, 37 Hen. VIII. issued some general orders relating chiefly (as far as they have been preserved) to process, in junctions, and the officers of the Court; see Sanders' Orders; and these orders refer to some previous orders, Sanders' Orders, p. 9.

7.

Orders for regulating the Practice of the Court.

397

first who attempted any comprehensive and systematic improvement of the practice (a). I shall content myself with inserting from Tothill a summary of such of them only as will tend to show the corrections made in the practice of the Court as above described (b).

As to Common Injunctions.-It was ordered that no Injunction, Sequestration, Dismission, Retainer upon Dismission, or Final orders should be granted on petition, nor should any former order be altered, crossed, or explained upon petition, but only stayed till the matter could be moved in court (c).

That no Injunction should be granted, revived, dissolved, or staid, upon private petition.

That no Injunction should be granted upon the surmise of the plaintiff's bill only, but upon matter confessed in the answer of the defendant, or matter of record-or writing plainly appearing-or upon defendant being in contempt for not answering, or when the debt desired to be staid appeared to be old, and had slept long, or the creditor and debtor had been dead some good time (d). If the party were in contempt, or there were matter confessed in the answer, the Injunction might be obtained, though after arrest or other proceedings at law, without bringing the money into court.

As to Special Injunctions.-Special Injunctions, as against felling *timber and other acts of waste, were to be granted according to [*398] the circumstances of the case, but not in cases where the defendant, upon his answer, claimed an estate of inheritance, "except it be where he claimeth the land in trust, or upon some other special ground."

Injunctions for possession were no longer to be granted before decree (e).

Taking Bills pro confesso.-Where no counsel appeared for the defendant at the hearing, and the process appeared to have been served, the answer of such defendant was still to be read in court (ƒ).

As to the drawing up of Orders.-The registrars were to set down the orders as they were pronounced, truly, at their peril; if any explanation was desired, it was to be done by public motion, where the other party might be heard (g); and upon delivery of the draught of the order unto the counsel of either party, the Registrars were not to respect the interlineations or alterations of the said counsel, were the counsel never so great, further than as a remembrance of what was delivered by the court (h).

(e) Tothill, 35 to 37. This process was still the subject of complaint in Mr. Norbury's time, Hargr. L. Tr. 439; it has since undergone further corrections, and is now only a mode of execution of decrees; though a Sequestration may be obtained on mesne process, Orders 26th Aug. 1841, § 9; Sand. p. 878.

(f) Toth. 56. This was in affirmance of the ancient principle, that there should be no decree against a person merely on the ground of default, v. sup. p. 376. Ib. p. 39.

رحمة

h) Ib.

p. 40.