Form of commission to swear an intended administratrix to the effects Form of commission to swear an administrator where there is a will, but Order of the 14th February, 1832, of the dean of the Arches Court, direct- ing that the first day of each term in that Court should be the same day on Special affidavit to be exhibited on proving an unfinished will.... Proxy of renunciation by widow, &c. in order that administration may be Of affidavit to lead decree, with intimation against the next of kin of an in- testate to accept or refuse letters of administration at suit of a creditor 146 Of decree issuing at the instance of a creditor of an intestate, served upon his next of kin, to accept or refuse letters of administration of his estate 147 Of citation in Prerogative Court of Canterbury, at the suit of the next of kin of a deceased, calling upon the executors to bring in probate of his will, id. CHAP. VIII.-Practice in Ecclesiastical Courts, &c.—(continued.) .... Of citation for subtraction of legacy in Arches Court of Canterbury. Of decree by letters of request from the Arches Court of Canterbury for .... The like in a cause of nullity of marriage on ground of incest The like against a minister of the established church for incontinence, &c. Of citation in Consistory Court, for perturbation of a pew The like for a church rate by churchwardens against parishioners Of decree in a testamentary cause, citing the parties entitled in distribution GF ALLEGATIONS, AND LIBELS, AND PLEAS, AND THEIR REQUISITES Form of a common condidit or allegation, pleading the execution of a will by Form of responsive allegation in a testamentary cause, insisting that testator was of sound mind, and that the will was and is valid Allegation in the Prerogative Court of Canterbury, pleading a party's interest Articles given in on behalf of a party promoting a suit for nullity of mar- riage, on the ground of incest, the parties standing in the relationship of THE PRACTICE OF THE LAW, &c. &c. OF TENDERING A BILL OF EXCEPTIONS, AND DEMURRING TO CEPTIONS, &c. In the concluding chapter of the last volume an outline was (a) It will be found that the subjects of this chapter have already been so ably At common law bills of exception, and demurrers to evidence, on account of any supposed incorrect conduct of the judge, who had tried the cause at the assizes or at nisi prius, were probably unknown, or but little in practice; and although new trials might at all times have been granted on account of the mistake or misdirection of the judge, or the mistake or misconduct of the jury, yet it was found that sometimes the judge returned to the Court in banc, as his report of the supposed proceedings on the trial, a very incorrect statement; but it nevertheless became the practice, in case of dispute, to treat such report as conclusive; (b) and the party, though justly entitled to relief, in many cases could not obtain it. And if the judge who tried the cause should have in fact improperly resolved that the verdict he had occasioned should stand, and that a new trial should not be granted, he could effect that object by returning to the Court in banc an incorrect or defective report of the proceedings on the trial; and thereby induce the other judges assembled in full Court to refuse a new trial. In modern times, however, the sense of justice has so strongly prevailed, that few instances of such misconduct have occurred.(c) It was principally in order to remedy this defect in the administration of justice, that the statute Westminster 2, (13 Ed. 1, st. 1, c. 31), intituled, " An exception to a plea shall be "sealed by the justices," was passed; and which enacts, "when one that is impleaded before any of the justices, doth allege an "exception, praying that the justices will allow it, which if they "will not allow, if he that alleged the exception do write the "same exception, and require that the justices will put to their "seals for a witness, the justices shall so do; and if one will not, "another of the company shall. And if the king, upon complaint "made of the justices, cause the record to come before him, and "the same exception be not found in the roll, and the plaintiff "show the exception written, with the seal of a justice put to, the justice shall be commanded that he appear at a cer (b) Per Taunton, J., in Adams v. Bankart, 5 Tyr.; ante, vol. iii. part 6, 901, note (s); Stanley v. Twogood, 2 Hodge's R. 135. (c) However in a modern case a learned counsel, upon the western circuit, having moved for a new trial, and obtained a rule nisi, the puisne judge, at the appointed time, read the judge's report of the trial, whereupon the astonished counsel apologized for having troubled the Court, and confessed that he could not support the rule, and declared that, if it had not been for the peculiarity in the names of the parties, and some of the leading facts, he really should have concluded that the report was in a totally different cause, as most of the material facts therein stated were utterly at variance with those proved, and he sat down, admitting that he must abandon his rule, but lamenting bitterly that he had not tendered a bill of exceptions, by which he would have avoided the disastrous result of relying on the accuracy of the judge's notes. "tain day, either to confess or deny his seal. And if the "justice cannot deny his seal, they shall proceed to judgment, according to the same exception, as it ought to be allowed or "disallowed." (d) This statute of Westm. 2, (13 Ed. 1, st. 1, c. 31,) extends not only to trials at nisi prius, or on the circuit, but also to trials at bar, (e) and to proceedings in Superior Courts of record, but also to all Inferior Courts; as the County Court, the Hundred Court, and Court Baron, (f) and to most of the Colonial Courts, (g) to challenges of jurors, and to process, &c.(h) The forms of bills of exceptions, and demurrers to evidence, are given in a subsequent page, and will explain the nature of the proceeding. (i) Considering the period of our history, when these remedies were introduced, they establish how early our ancestors endeavoured to secure to the subject the due and just administration of justice, free from improper interference or influence even of the superior judges. Mr. Serjeant Sellon, in his Practice, observes, (k) that nothing can be more important to the ends of justice, than that certain rules should be established, and strictly adhered to, with respect to the admissibility or inadmissibility of evidence upon the trial of a cause; but inasmuch as, from the nice and complicated nature of such rules, the best of judges may be sometimes liable to err, by improperly rejecting or receiving any particular species of evidence, the law has provided for the benefit of the subject a remedy in this respect, by enabling the injured party to bring the question in dispute before the Court in banc, or some higher tribunal, for their decision on the propriety or impropriety of the judge's admission or rejection of some particular evidence; and this may be done according to the circumstances of the case, either by bill of exceptions, or by demurrer to evi CHAP. I. TENDERING CEPTIONS, &c. (d) As to bills of exceptions in general, see Bac. Ab. Bills of Exceptions; Evans on Statutes, vol. iii. p. 341; Gibson v. Hunter, 2 Hen. Bla. 187 to 211; Lessce Lawlor v. Murray, 1 Scho. & Lefroy, 75; Tidd's Prac. 9th ed. 862 to 867; 1 Sellon Pr. 485, 486; 2 Inst. 426 to 428; Wright v. Doe dem. Tatham, decided in Exchequer Chamber in error from the King's Bench, on a bill of exceptions tendered, 1 Adol. & Ellis, 3; and see the statute, ante, 2, and 1 Chitty's Col. Stat. 117; and see observations of the Court in Crease v. Barrett, 1 Cromp. Mees. & Ros. 933; Home v. Lord Bentinck, 8 Price's Rep. 225, &c. The principal effect of this statute was, that in ancient times the judges, knowing that (e) Gibson v. Hunter, 2 Hen. Bla. 208. (h) Millar v. Warren, 1 Car. & Pa. (i) See post, 5, 6, 14, 16. |