have with them concurrent jurisdiction. The itinerant judges receive several commissions: 1st. A commission of the peace; 2nd. A commission of oyer and terminer, which is only given to two judges collectively (Breve de transgressione ad audiendum et terminandum), and is extended to the senior barristers. It is granted under the great seal, and empowers the judges to sit in judgment on all matters concerning treason, felony, robbery, murder, and crimes in general.* For London there is a special court of oyer and terminer, the "Central Criminal Court." 3rd. The commission of jail delivery, empowering the judges to try and to deliver every prisoner who shall be in jail when the judges arrive at the circuit, whenever or by whomsoever indicted, or for whatever crime committed. Thereby twice every year all the prisons are actually cleared. Occasionally extraordinary commissions of jail delivery, and of oyer and terminer, are issued.† A 4th commission enables them to hold assizes; this is the most ancient portion of their functions. During the middle ages it authorized them to determine matters of the gravest import, and a large range of cases, such as disturbances of possession which had been effected with violence (assizes of novel disseisin), and disputes touching the claims of an heir in matters of realty (mort d'ancestor). From the assizes held in regard to such contentious matters, the itinerant judges received the name of "assize judges," and their courts that of "courts of assize;" the towns in which they were held were called "towns of assize."

The statute of Westminster; 13 Edw. I. c. 30, allowed the judges to determine matters of a minor nature within their circuits, and with that intent introduced half-yearly assizes. The judges received a 5th commission of "nisi prius." By a writ called "venire facias," a sheriff was formerly required to impanel a jury at Westminster on a fixed day for the determination of any matter; but after 13 Edw. I. c. 30, the writ of venire was altered, and instead of ordering the sheriff to bring the jurors to the court at Westminster, he was ordered to bring them to Westminster on a certain day" Nisi prius "-unless before that day the justices of assize came into the county, for then the statute rendered it his duty to return the jury, not to the court, but before the justices of assize. Hence judges are said to sit at Nisi prius.

Bl. iv. 269. Crabb, 175.

Bl. iii. 353.

+ Bowyer, 339.

These nisi prius courts are held by a single judge in conjunction with a jury, the jury having merely to determine questions of fact. The nisi prius court generally confines its jurisdiction to civil suits of a simple nature, where the question of fact and not the question of law is in dispute, in contradistinction to the "Crown Court," which passes judgment on prisoners, and to the decisions at bar or in banco, where the judge, together with his colleagues at Westminster, determine important questions of law.* As a rule, then, only civil actions of a more important and difficult nature are determined at Westminster.† The judges hold such nisi prius sittings also at Westminster and Guildhall for London and Middlesex. A new duty is now assigned to the judges of assize; by 20 and 21 Vict. c. 77, s. 17, a petition for restitution of conjugal rights or for judicial separation under that Act may be made by either a husband or wife to the judge of assize at the assizes held for the county in which the husband or wife reside or last resided together. The plaintiff in any personal action may commence his suit in either of the three superior courts at Westminster.

The Queen's Bench, as successor of the old "Aula Regis," takes rank as the highest court of the common law. Under Cromwell it was called "The Upper Bench." It consists of a chief justice and four puisne judges. The chief justice is the supreme judge of the common law. Since 1806 he has no longer a seat in the cabinet. These five judges are the highest "conservators of the peace." The lord chief justice of the Queen's Bench is the principal coroner in the kingdom, and may, if he pleases, exercise the jurisdiction of a coroner in any part of the realm. The Queen's Bench possesses at this day the criminal jurisdiction of the ancient "Aula Regis," and also a superintending power over all the inferior tribunals in the kingdom, commanding them by a prerogative writ of mandamus to perform what the law requires; by writ of prohibition to abstain from what it prohibits; removing their proceedings into itself by certiorari; and reversing them by writ of error or false judgment. The right of issuing writs of habeas corpus pertains to all the courts of law, as well as to the Lord Chancellor. This court takes cognizance Kerr's Blackstone, 1857, vol. iii., at law. App. to Holthouse's Law Dict. 441.

378.

+ Crabb, 174. As to the import of Nisi Prius, vide the outline of an action

Smith's Action at Law.

Ꭱ

both of civil and criminal matters; of the one on the "Plea," and of the other on the "Crown" side of the court. The powers of its judges are described by Bracton; in that they are judges, "capitales, generales, perpetui, et majores a latere regis residentes, qui omnium aliorum corrigere tenentur injurias et errores.”

The sovereign might, until 19 and 20 Vict. c. 74 (repealing 13 Edw. I. c. 41, art. Super Charters) command the King's Bench still to accompany his person; and, on one occasion, Edward I. commanded the Court of King's Bench to follow him to Scotland, and it actually sat there for some time at Roxburgh.*

This court acquired jurisdiction over purely civil causes by a series of fictions; for the Queen's Bench declared that a person in the custody of its marshal was before it for every purpose; and as actions of trespass were considered to be still within its jurisdiction, being of a criminal nature, and a fine payable to the crown by the defendant, the plaintiff was permitted to issue a writ charging the defendant with a trespass, which, being then a cause for which a man might be arrested, he was taken and committed to the Marshalsea, and, being once there, the plaintiff might declare against him for any cause of action.†

The Court of Common Pleas, or "Court of Common Bench," consists of a chief justice, and four puisne judges. Conformably with Magna Charta, it must be held at Westminster. It has no penal jurisdiction, but is the chief civil court, having, at its first establishment, exclusive jurisdiction in personal actions. This court has also a special cognizance of real actions, which were all abolished by the 3 and 4 Will. c. 27, except writ of right of dower, dower, and quare impedit. By the Common Law Procedure Act of 1860, these actions are to be commenced by writ of summons issuing out of the Court of Common Pleas, in the same manner and form as the writ of summons in an ordinary action. The plaintiff, however, must endorse on the writ an intention to declare in dower, or quare impedit, as the case may be. The certificates of acknowledgment by married women, under the Act for the Abolition of Fines and Recoveries (3 and 4 Will. IV., c. 74), with the affidavits verifying them, are filed as records in this court. It is also the court of appeal from the decisions of revising barristers.

Smith's Action at Law.

+ Ibid.

Broom's Commentaries, p. 42.

The Court of Exchequer consists of a chief baron and four barons. Until 5 Vict. c. 5, the same jurisdiction was exercised, and the same system of redress pursued on the equity side of the Exchequer as in the Court of Chancery, save only in respect of some few matters peculiar to each tribunal.*

It still retains a peculiar and exclusive cognizance of matters of revenue, e. g., of complaints arising out of alleged infringements of the laws regulating the customs and excise; of matters involving the payment of stamp or other duties to government; or where, on any issue raised between private parties, the title of the crown is brought in question, or the interests of the revenue are threatened.t

As in the case of the Queen's Bench, this court also obtained jurisdiction in purely civil actions by means of a fiction. It permitted the plaintiff to state, in his writ and declaration, that he was a debtor to the king, and that, by reason of the defendant's conduct, he was the less able to pay his debts; although, in the majority of cases, these averments were wholly false, the court would not allow them to be traversed. This fiction is now dispensed with, and the Court of Exchequer is an ordinary civil court in actions of a personal nature.

The Court of Exchequer Chamber is the appeal court in civil matters. By statute 1 Will. IV. c. 70, error upon any judgment of the Queen's Bench, Common Pleas, or Exchequer, can be brought only before the judges, or judges and barons, as the case may be, of the other two courts in the Exchequer Chamber. That on error from the Exchequer, the appeal will be heard before the judges of the Common Pleas and Queen's Bench. By the Common Law Procedure Act of 1854, s. 68-74, an action of mandamus is given to compel the performance of certain duties, in the fulfilment of which the plaintiff is personally interested.‡ The Court of Queen's Bench has decided that an action of mandamus will only lie where formerly the court would have granted the prerogative writ of mandamus. It would seem that an action of mandamus can only be brought for the performance of a public duty in which the plaintiff is personally interested. From the Court of Exchequer Chamber error again lies to the House of Lords, whose decision is final.

* Ibid, p. 30.

+ Broom's Commentaries, p. 42.

Benson v. Paul, 6 E. and B., 273; Norris v. Irish and Co., 8 E. & B., 512.

In the Exchequer Chamber also sits the newly created Court of Criminal Appeal. This must consist of at least five common law judges, including either a chief justice or a chief baron. Occasionally, also, all the judges sit as a Court of Appeal. At the trial at the Assizes or Quarter Sessions, the court is now empowered, by 11 and 12 Vict. c. 78, to reserve for the Court of Criminal Appeal any question of law which it finds too difficult for its determination. The question is stated in the form of a special case for the consideration of the judges of the Court of Appeal.