4 No. III. 14 Edw. III. st. 1. c. 5. ' or else where the places of any of them shall be, the tenor of records and processes of such judgments so delayed, and to cause the same 'justices to come before them, which shall be then present, to hear their cause and reasons of such delay; which cause and reason so heard, by good advice of themselves, the chancellor, treasurer, the justices of instance, and allows the benefit of a further of course not to decide any case without hearrevision of the disputed question. With respect to the facility of granting cases, and the mode of stating them, I have often regretted the deviation which has taken place from the course pursued by Lord Mansfield, and which was stated by himself in Luke v. Lyde, 1 Bur. 887, as follows: "He said he had always inclined (even when he had himself no doubt) to make cases for the opinion of the court, not only for the greater satisfaction of the parties in the particular cause, but to prevent other disputes, by making the rules of law, and the grounds on which they are established, certain and notorious; but he took particular care that they should not cause delay or expense; and therefore he always dictated a case in court, and saw it signed before another cause was called, and always made it a rule that it should be set down to be argued within the first four days of the term." Mr. Justice Park, in the Introduction to his Treatise on Insurance, contrasts this course with the preceding practice, stating that it had been the custom when cases were reserved, to leave it to the counsel on both sides to draw them up at leisure. This introduced considerable delays, for every fact became a subject of dispute; and frequently, from the hurry of business and other avocations of counsel, the case was neglected for a considerable time before it was ready for the inspection of the court. With Lord Mansfield's presidency, the practice introduced by him absolutely ceased, and the inconveniences just mentioned as resulting from the previous practice, have been renewed in a very aggravated degree. Great as Lord Kenyon's excellencies indisputably were, the impatience and irritability of his temper were a most serious disadvantage in the administration of justice; and nothing would have been more repugnant to his habits, than to have adopted the course of deliberately dictating a case as followed by his predecessor. In modern practice, as far as my observation goes, the reservation of a special case generally induces a cavil upon some verbal nicety upon some bye point, some collateral and incidental question, upon which a decision may be obtained of the particular case, independently of the general question which was the object of the case being reserved; and I cannot but think that this course has too frequently met with the encouragement of the courts, who have preferred resting upon the special ground of some incidental finding, to entering into the discussion of the general question intended to be reserved. I am not equally prepared to join in the commendation of the learned writer on the law of insurance, in his panegyric on another alteration in the course of practice introduced under the auspices of Lord Mansfield; before whose time it is observed, that it was almost a matter ing two arguments upon it; but in the very first cause which is reported of his lordship's decisions, he expressed himself to this effect:— "When we have no doubt, we ought not to put the parties to the delay and expense of a further argument, nor leave other persons, who may be interested in the determination of a point of a general nature, unnecessarily under the anxiety of suspence." Without insisting upon the expediency of allowing a second argument, merely as a matter of course, I do think it is to be regretted, that that practice has been so very generally discontinued, and that the character of mere dispatch has been in modern times allowed to hold so high a place in the scale of judicial reputation. To every person of reflection and observation, many instances must occur, in which first impressions of very considerable force have yielded to the subsequent views, arising from a more enlarged and deliberate consideration: and perhaps it may not be unworthy of remark, that the case of Reynard and Chase, with which the general deviation from the preceding cases originated, is one which by no means bears the character of undisputed rectitude of decision. In the greater part of the suggestions contained in the notes to the present work, the principal object in contemplation is, the obviating unnecessary expense or delay; but the most beneficial means of attaining that end are those which are supplied by such arrangements as may present the real object in dispute to the consideration of the court in the most easy and commodious manner, and defeat the artifices of chicanery and oppression. But some sacrifice is due to the object of producing such a decision upon an immediate case, as may have the effect of eliciting correct principles, for the future guidance of the profession and the public, and may prevent observations from having the character of authority, which, upon being fairly canvassed, would not be found to bear the test of examination. In the long list of cases which now occur at the beginning of every number of reports, where rules to shew cause why there should not be new trials are refused upon the first impression of the case, the instances are not unfrequent of points, which are at least of sufficient importance to merit a deliberate enquiry. The delay of a second argument, with the exception of the period of the long vacation, is not considerable; and there is no part of legal proceedings, in which the expense bears so small a proportion to the magnitude of the object, as a solemn argument. The strong conviction of the importance, which I have always felt and often expressed, of giving to every legal discussion of which the event might be material, as a precedent, that mature attention, which is the best security from error and misconception, No. III. 14 Edw. III. st. 1. c. 5. ⚫ the one bench and of the other, and other of the King's counsel, as has received a material confirmation from the But if a system of greater deliberation is desirable with respect to questions submitted to the solemn consideration of the courts, how much more important would it be to check the practice of ascribing the character of judicial authority to the sudden views of a subject which may be taken upon trials at nisi prius! and how much is it to be regretted that collections of such opinions are allowed to occupy so important a place in our juridical libraries, and are introduced into some of our treatises as the ground of general propositions of law! I apprehend that the profession are becoming duly sensible of this inconvenience; and some recent allusions to the use which is made of My own limited sphere of observation is almost entirely confined to this department of judicial business; and I have often most sensibly felt the inconvenience which has resulted from indulging a spirit of anticipation, instead of dispassionately attending to the suggestions, which, however imperfect, have not been hasty or inconsiderate, intended to be offered on behalf of a party whose comfort or ruin might depend on the event; and the painful situation of an advocate condemned to enter into a desultory combat with a judge, who, by the premature expression of his opinion, may almost acquire the feelings of a party to the cause; or, (which is still more distressing) reduced to relinquish the maintenance of rights which he is entrusted to support, and in favour of which he entertains a sincere opinion, founded upon laborious examination, in consequence of the agitation resulting from so unequal a contest. Whenever this practice prevails, it is obvious that the talent of snip-snap altercation, and the strength of lungs in a scramble for attention, are qualities of more importance than any previous application to the elucidation of the real merits of a cause. Decisions at nisi prius are sometimes suffered to acquire an authority from the acquiescence of counsel of eminence, who have declined submitting the propriety of them to the revision of the court; but so many incidental motives of inconvenience, weariness, and expense may operate upon a party submitting to the first decision against him, that it is very seldom that this argument can be relied upon with an adequate confidence of its being well founded in point of fact; and even taking it at the highest, it has very little claim to be ranked in opposi tion to any immediate arguments upon the merits, which would otherwise be considered as entitled to serious attention.-Connected with this observation is the influence sometimes ascribed to the tacit authority of a case, in which a point that afterwards becomes the subject of controversy was involved, according to the statement of the facts; but which passed unnoticed in the discussion of other questions to which the argument was particularly directed, and must have been taken for granted in (a) Powley v. Newton, 2 Marshall, 149. • before whom the plea did depend, and that they hastily go to give judgment according to the same record; and in case it seemeth to them, that the difficulty be so great, that it may not well be determined without assent of the Parliament, That the said tenor or tenors order to render the actual controversy at all material. To suppose that this arose from deliberate intention, and from a settled conviction that the point, if taken, would have been found untenable, is an assumption which is often at variance with the truth of the facts; and every person's experience will convince him of the many instances in which he has entered into a controversy upon a collateral inquiry, which might have been prevented if a preliminary ground of argument had in proper time occurred to his attention. The objection of such tacit authorities can never be properly urged, when it is admitted that the point supposed to be involved in them would, if presented, have been fairly susceptible of doubt and controversy. Much less can it be entitled to prevail in opposition to what upon fair investigation may be found to be the true conclusion upon the subject, independently of such supposed authority. These observations were forcibly impressed on my mind by the case of Isherwood v. Oldknow, 3 M. & S. 382., which turned upon the important question, whether an action of covenant could be maintained by a person in remainder upon a lease made by a tenant for life, under a power? and which certainly was open to very considerable discussion; but in which considerable reliance was placed upon the tacit authority of former cases, wherein the discussion had turned upon the conformity of leases to the power under which they possessed, in respect of covenants entered into by the lessee; and which covenants I admit would not have been very material, if it had not been taken for granted that an action could have been maintained upon them by the party in remainder but the point so taken for granted certainly was attended with sufficient difficulty to render it manifest, that it had been rather overlooked in consequence of the attention being directed to another object, than abandoned upon deliberate consideration, as unworthy of argument. Upon a case coming before a court of error or appeal, I had conceived it to be clear, that the question to be discussed would depend upon the propriety of the original judgment, as appearing upon the face of authentic proceedings, without reference to any statement of what passed in the original discussion; but in Charnley v. Dunsavy, in the house of Lords, 2 Schoales and Lefroy 690, an opinion is strongly expressed by Lord Redesdale and Lord Eldon, that upon an appeal in equity no point ought to be made at the bar of the House, which was not made below, and which therefore may be considered as having been waved. If such waver can be collected from the course of the proceedings themselves, I am perfectly ready to accede to this view of the subject, and which, in many cases, may be fairly taken No. III. 14 Edw. III. st. 1. c. 5. upon cases in equity, as immediately arising on the proceedings, without being formally stated. But in the case of the King v. The West Riding of the County of York, 2 Dow P. C. 2., Lord Eldon seems to adopt the same principle, as applicable to a case arising upon a writ of error from a court of law; deducing the fact from the printed authority of the case as contained in East's Reports. No decision was pronounced upon the question, the objection being waved by the counsel. But the propriety of the doctrine alluded to certainly requires a very serious consideration. Admitting that it would be an improvement in the law if no objections could be made in a court of error or appeal, which was not formally put upon the record as a ground of objection in the court below, I think it will require much consideration, before it can be admitted that a court of error should give judgment, according to the existing state of the law, in favour of a proceeding confessedly erroneous. Waving the observation that many cases are allowed to pass without argument in the original court, with the express view of taking the opinion of a court of error in the first instance, the great difficulty of the present question relates to the mode in which the fact, as to what objections were originally made, can be authentically ascertained; whether, in case of an appeal to the House of Lords, it is to depend upon the memory of any noble lord who may have concurred in the original decision, so as to make a distinction between the case in which any such lord may be present, and others; whether a certificate shall be applied for to the original court, as to the recollection of the arguments and proceedings; whether the matter shall be open to suggestions, supported only by altercation and opposite statements at the bar, or whether the character of solemn authority shall be applied to any accidental publications, in which the proceedings may have been reported for the use of the profession. In the introduction of any novel practice by mere judicial authority, it is impossible to give too minute and extended a consideration to the consequences to which it may lead; and therefore I have taken the liberty of submitting these observations to those who can best decide upon their propriety. I am fully aware that in this note I have digressed into the examination of several subjects not arising out of the statute to which they are attached, nor very intimately connected with each other. But feeling that the subjects adverted to are in themselves intimately connected with the beneficial administration of the law, I have ventured to trespass upon the patience of the public, by the discussion of them in that part of the Work which appeared to afford the fairest opportu» nity for their introduction. No. III. 14 Edw. III. st. 1. c. 5. The officers' oath to serve the King and his people. 'shall be brought by the said prelate, earls, and barons unto the next Parliament, and there shall be a final accord taken what judgment ought to be given in this case; and according to this accord it shall be 'commanded to the judges, before whom the plea did depend, that they shall proceed to give judgment without delay. And to begin to do remedy upon this ordinance, it is assented, that a commission and a 'power shall be granted to the Archbishop of Canterbury, the Earls of Arundel and Huntingdon, the Lord of Wake, and the Lord Ralfe Basset, to endure till the next Parliament. And though the ministers ⚫ have made an oath before this time, yet nevertheless to remember them of the same oath, it is assented, that as well the chancellor, treasurer, keeper of the privy seal, the justices of the one bench and of the other, the chancellor, barons of the Exchequer, as the justices assigned, and 'all they that do meddle in the said places under them, by the advice of ⚫ the same archbishop, earls, and barons, shall make an oath well and lawfully to serve the King and his people. And by the advice of the said 'prelate, earls and barons, be it ordained to increase the number of the 'ministers when need shall be, and them to diminish in the same manner, and so from time to time, when officers shall be newly put in the said offices, they shall be sworn in the same manner.' (1) [ No. IV. ] 1 Edward III. stat. 1. c. 4.-Trial of an Averment in a Writ of false Judgment. (1) I have chosen to insert this obsolete statute, upon a supposition that at some future period it may be thought eligible to revive the institution which it prescribes, if not according to the literal precedent, by the adoption of a tribunal for the decision of questions of error and appeal, founded upon analogous principles. The overwhelming increase in every department of public business, judicial or parliamentary, requires a degree of application very greatly exceeding any that was requisite, not only at the time of the original establishment, but even within the memory of the present generation. In order to meet this increase of business with a suitable attention to convenience and dispatch, different arrangements have been from time to time made, and others will probably be rendered equally necessary. I do not think that it would be desirable altogether to abolish the jurisdiction of the House of Lords, as an aggregate body, in matters of judicial appeal; and think it would be prefer able, if any establishment should be adopted of the nature suggested, to reserve a power by special order of hearing such cases at the bar of the house. It is notorious that the solemnity of that high tribunal, according to the existing practice, is attached rather to the place than to the course of proceeding, and that the majority of appeals from the three parts of the united Kingdom are in substance and effect to the Lord Chancellor individually; the presence of two other peers being necessary, but the particular individuals being in a constant course of fluctuation, even during the course of the particular cause; and that the motion of the Lord Chancellor is in effect the judgment of At present a very honourable exception prevails to this practice, in the habitual attendance of a noble person, formerly holding an exalted judicial station, and whose legal the case. erudition is universally admitted to be of the highest degree. The same assistance would in all probability be afforded in case of a different arrangement being made, according to the idea at present suggested. I have only a recollection of two instances, in a period of upwards of thirty years, in which the judicial business of the House of Lords, in cases of appeal, was considered as an object of general attention by the members of that body: the one was the well-known case of the Bishop of London v. Fytche, in which a decision took place contrary to the opinion of the majority of the judges, and contrary to what has been generally considered, independently of the direct authority of the judgment, as the true legal conclusion upon the subject: the other was an appeal from the Court of Chancery, respecting the appointment of a guardian; in the decision of which, so far as appeared from the diurnal publications, there was a greater admixture of personal and political feeling, than appears in the accustomed and ordinary administration of justice. There are some very important observations on this subject at the conclusion of Sir Matthew Hale's valuable work on the Jurisdiction of the Lords' House of Parlia ment. The value of the alteration in the judicial proceedings of the House of Commons, by the appointment of committees for the trial of controverted elections, is generally felt and admitted, as being one of the greatest improvements of the constitution in modern times. And I apprehend that the extension of a similar principle, not only to the judicial functions of the House of Lords, but to the legislative proceedings of both houses, upon subjects of a local and personal nature, would be attended with very beneficial consequences. ITEM, It is accorded, ordained, and established in amendment of the law, That when a record cometh into the King's court by writ of * false judgment, in case where the party allegeth that the record is otherwise than the court doth record the same, the averment shall be ' received of the good country, and of them which were present in the 'court when the record was made, if they do come with others of the country by the sheriff's return; and if they come not, the inquest shall be taken by the good country.' 6 [No. V. ] 31 Edward III. stat. 1. c. 12.-The Lord Chancellor and Lord Treasurer shall examine erroneous Judgments given in the Exchequer. No. IV. 1 Edw. III. st. 1. c. 4. st. 1. c. 12. ITEM, it is accorded and established, That in all cases touching the 31 Edward III, King, or other persons, where a man complaineth of error made in 'process in the Exchequer, The chancellor and treasurer shall cause to 'come before them in any chamber of council nigh the Exchequer, the record of the process out of the Exchequer, taking to them the 'justices and other sage persons, such as to them seemeth to be taken; and shall also cause to be called before them the barons of the Exchequer, to hear their informations, and the causes of their judgments, and thereupon shall duly examine the business; and if any error be 'found, they shall correct and amend the rolls, and after send them ' into the Exchequer for to make thereof execution as pertaineth.' [No. VI. ] 9 Richard II. c. 3.-A Writ of Error or 6 ' tenant. II. Provided nevertheless, that although the tenant which so did lose by the first judgment be in life, and the party pursuing will allege that the same tenant was of covin, and of assent of the demandant which recovered, that such tenements ought to be lost, that restitution of the same tenements be made to the same party pursuing, with the issues and arrearages, as afore is said, saving to such tenant his action by writ of scire facias, out of the same judgment so reversed or given, or writ of attaint, if he will traverse the covin and assent aforesaid, and otherwise not. And that this statute hold place of judgments to be given in time to come, and also of two judgments late given in the 'King's Bench, in two pleas of error, the one betwixt Edmund Frances and Ideyn his wife, demandants, and Robert Westby and other tenants ⚫ of certain tenements in Oxenford, and in the suburbs of the same town, 9 Richard II. c. 3. He in the reversion shall have an attaint or writ of error upon a false verdict found, or an erroneous judgment given against the particular tenant. He in the reversion allegeth that the particular tenant was of covin with the demandant. The particular tenant's remedy to traverse the covin. |