3. c. 33.

And if the defendant removes the indictment he must pay costs, if convicted, to be taxed to the prosecutor within ten days after demand made, and refusal of payment on oath, otherwise an attachment to be granted. 5&6 W. & M. c. 11. 6 Mod. 246.

The jurisdiction of this court is so very high and tran- The jurisdicscendent, that it keeps all inferior jurisdictions within tion. the bounds of their authority; and may either remove their proceedings to be determined here, or prohibit their progress below: it superintends all civil corporations in the kingdom, commands magistrates and others to do what their duty requires in every case, where there is no specific remedy; protects the liberty of the subject, by speedy and summary interposition; takes cognizance both of criminal and civil causes; the former in what is called the Crown Side or Crown Office; the latter of the Plea Side of the court. The jurisdiction of the crown side is not intended to be here treated of. But on the civil or plea side it hath an original jurisdiction and cognizance of all actions of trespass, or other injury alledged to be committed vi etarmis: of actions for forgery of deeds, maintenance, conspiracy, deceit, and actions on the case, which allege any falsity or fraud; all of which savor of a criminal nature, although the action is brought for a civil remedy, and makes the defendant liable in strictness to pay a fine to the king, as well as damages to the injured party. Finch, 198. The same doctrine is also extended to all actions on the case whatsoever (except real actions,) and has continued to do so for ages; it being surmised that the defendant is arrested for a supposed trespass, which he never has in reality committed; and being in the custody of the marshal of this court, the plaintiff is at liberty to proceed against him for any other personal injury; which surmise the defendant is not at liberty to dispute. These fictions of law, on consideration, are Fictions. highly beneficial and useful, especially as this maxim is ever invariably observed, That no fiction shall extend to work an injury; its proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law. 3 Rep. 30. 2 Roll. Rep. 502. Co. Litt. 150. 11 Rep. 55.

law,

This court, as it is the highest court of common law, Highest court hath not only power to reverse erroneous judgments for of common such errors as appear the defect of the understanding, but also to punish all inferior magistrates, and all officers of justice, for wilful and corrupt abuses of their authority against the obvious principles of natural justice, 2 Haw. P. C. 8. Vaugh. 157. Salk. 201. pl. 3.

Prison.

Court of appeal.

Grants a

habeas cor

pus.

The duty of the court to

correct errors

of inferior

jurisdictions.

This court

Newgate is as much the prison of this court as the King's Bench prison is; every prison in the kingdom is the prison of this court. Rex v. Davis, 1 Burr. 641.

It is a court of appeal, into which may be removed by writ of error, all determinations of the court of Common Pleas, and of all inferior courts of record in England. Yet even this court is not the dernier resort of the subject: for, if he be not satisfied with any determination here, he may remove it by writ of error into the court of Exchequer Chamber, if the proceeding is by bill, or into the House of Lords, if by original.

It grants an habeas corpus to relieve persons wrongfully imprisoned: and upon return of the cause, they may be bailed or discharged as the court shall think fit: also mandamus's to inferior courts to oblige them to do their duty, and prohibitions to keep them within their proper jurisdiction.

It is the duty of this court to correct the errors of inferior jurisdictions, and to grant a mandamus where it suspects on strong grounds that injustice has been done below, in cases where a mandamus lies. 6 Term Rep. 104. Rex v. Chan. of the Un. of Cambr.

As the inferior courts, which are not of record, regucannot hold larly cannot hold plea of debt, &c. or damages, but under plea for a less 40s. so the superior, that are of record, cannot hold plea sum than 40s. of debt, &c. or damages, regularly, unless the sum amount to 40s. or above. 2 Inst. 311. Stat. 6 Ed. 1. c. 8. which enacts, "That none shall have writs of trespass be"fore justices, unless he swear by his faith, that the goods "taken away were worth 40s." For the wisdom of the common law was, that men should not be troubled for suits of small value in the king's courts, there being inferior jurisdictions established, in order to bring justice home to every man's door. 2 Inst. 311. Ne dignitus curiarum illarum vilesceret, & ne materiam superaret opus.

In case the

debt appears by the declaration to be

for a less sum than 40s. on

the oath of

This court, in conformity to determinations in the Exchequer and Common Pleas, will stay the proceedings in an action where the demand does not amount to 40s. on the oath of the defendant, and uncontradicted by the plaintiff; although the demand of the plaintiff appear to be more than 40s. by his declaration. Kennard v. Jones, 4 Term defendant, un- Rep. 495. M. 32 Geo. 3. Wellington v. Arters, 5 Term Rep. contradicted 64. M. 33 Geo. 3. S. P. vide Stean v. Holmes, 2 Black. by the plaintiff, court will Rep. 754. Mr. Justice Buller in the case of Kennard v. stay the pro- Jones, states, that the practice had been not to grant such ceeding. rules in this court, unless the demand appeared to be under 40s. on the record. And this appears in the case

of Oulton and Perry, 3 Burr. 1592. For the court there said, they could not try the quantum upon affidavit. The distinction is, where it appears on the face of the declaration, or not.

court.

If a cause has been removed from an inferior court, So, if the this court will grant a procedendo if the debt or damages cause be reappear to be under 40s. Brownl. Brev. Judg. 140.2 Brown moved from an inferior 82. Moyle 69. But in an action for an assault brought against excise officers, the court refused to quash a certi- Assault orari, the damages being under 40s. because it appeared that defendant could not have an impartial trial in the cise officers. inferior court. Daniel v. Philips, 4 Term Rep. 499.

against ex

amount to less

By stat. 43 Eliz. c. 6. it is enacted, "that if any per- No more costs "sonal action be brought in any of her majesty's courts than damages "at Westminster, (not being for any title or interest of if recovery lands, nor concerning the freehold or inheritance of any than 406. "lands, nor for any battery,) it shall appear to the judges "of the same court, and be so signified by the justices "before whom the same shall be tried, that the debt or "damages to be recovered therein, shall not amount to "the sum of 40s. that in every such case the judges or justices before whom such action shall be pursued, "shall not award the plaintiff any more costs than the "sum of the debt or damages so recovered shall amount "to; but less at their discretion."

3

der 40s. on nonsuit.

If upon a nonsuit in an inferior court, 16s. is given for Debt lies uncosts, by 23 H. 8. c. 15. debt lies for it in this court, because given by a subsequent statute to the statute of Gloucester. Cro. Eliz. 96. Leon. 316.

By stat. 43 Geo. 3. c. 46. sect. 4. where any action shall In actions on be brought in England or Ireland after the first of June, judgments, plaintiffs shall 1803, upon any judgment recovered, or which shall be not be entitled recovered in any court in England or Ireland, the plain- to costs, un tiff or plaintiffs in such action on the judgment shall not less ordered. recover or be entitled to any costs of suit, unless the court in which such action on the judgment shall be brought, or some judge of some court, shall otherwise order.

This clause is holden to extend only to judgments recovered by plaintiffs, and not to judgments of nonsuit. 14 East. 344.

66

The style of the court is," Pleas before our lord the Style of the king at Westminster, of the term of Saint Hilary, in court.

"the 57th year of the reign of our sovereign lord George "the third, by the grace of God, of the United Kingdom "of Great Britain and Ireland, king, defender of the faith “And in the year of our Lord 1817.

this court.

Two ways of In this court, there are two ways of proceeding, viz. proceeding in by special original writ, or by bill; the former is generally used in case the debt is large, because the defendant, if he means to delay execution of the judgment, must bring his writ of error returnable in parliament, which greatly enhances the expence; but the latter is the more expeditious.

If privilege.

Attornies, &c.

Peers are to be sued by original.

If the party is privileged as an attorney, this court holds plea on a writ of privilege, which is the first process issued against the defendant, to compel him to appear and make his defence.

If attornies, officers or ministers of this court, are sued by persons not entitled to privilege, they must be sued by bill, which expresses either the grievance or wrong which the plaintiff hath suffered by the defendant, or some fault by him committed against some law or statute of the realm.

Peers are now to be sued by original writ in this court. See the case of the Earl of Lonsdale v. Littledale in error, 2 H. Blacks. Rep. 299. and a summons is to issue in that county where he resides. But if the venue be laid in a different county, then a testatum summons must be made out in that county where he resides. By Peers of Ire- stat. 39 and 40 Geo. 3. c. 67, being the act of union, the lords of parliament on the part of Ireland, in the house of lords of the united kingdom, shall at all times have the same privileges of parliament which shall belong to the lords of parliament on the part of Great Britain. Art. 4. Therefore they are to be sued also by original writ.

land.

Members, &c

If a member be in the

King's Bench prison.

Also a knight, citizen, or burgess, or other person entitled to privilege of parliament, may be sued in this court by original writ, or by original bill and summons, in manner as directed by the stat. 12 and 13 Will. 3. c. 3. upon which, a writ of summons and distringas issue to compel his appearance: but no such writ of summons will lie against a person not entitled to privilege, on a bill filed against him in this court; though many have attempted that mode of proceeding, which has been set aside with costs. Whitworth v. Richardson, H. 23 Geo. 3. Tidd. 315.

But if a member of parliament be in the King's Bench prison, the plaintiff may file a bill against him as being in custody of the marshal; but he cannot be charged in custody in a bailable action. Jackson against Mackreth, 5 Term Rep. 361..

As to members who are in trade, see the act 45 Geo. 3. c. 124. sect. 1, 2, 3, as to proceeding against them.

ACTIONS.

It has been already observed that, the more effectually to accomplish the redress of private injuries, courts of justice were instituted in every civilized society, in order to protect the weak from the insults of the strong. The remedy therefore principally to be sought for by application to these courts of justice is by civil action, which is the form of a suit given by law, for the recovery of that which is due to the person applying, and invented to preserve men's persons and properties from the violence and injustice of others; whereby the suitors are obliged to submit to the public the measure of their damages; for were they allowed to be their own carvers, or to make reprisals, which they might do in the state of nature, such permission would introduce all that inconvenience which the state of nature did endure, and which government was at first invented to prevent.

In every action that is brought, the person complaining is called the plaintiff'; and the person who is required to make satisfaction, is called the defendant.

As every wrong may be considered as merely a privation of right, the natural remedy for every species of wrong is the being in possession of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or where that is not possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages: as in case of assault, breach of contract, &c. to which damages the party injured has acquired an incomplete, or inchoate right, the instant he receives the injury, though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments Remedy for whereby this remedy is obtained, (which are sometimes wrongs is by considered in the light of the remedy itself,) are a diver- action. sity of suits and actions, which are defined by the Mirror to be," the lawful demand of one's right," or jus prosequendi in judicio quod alicui debetur.

There is a great diversity between a writ and an action; Diversity bethe action is the right of a suit, and the writ is grounded tween a writ thereupon, and the means to bring the plaintiff to his and action.