Latitat (p) was issued to the sheriff of the county where he was to be found.

At first the defendant was retained in the custody of the court, but later on appearance or bail was sufficient. As the true cause of complaint was not alleged on the bill, a statute of Charles II. (q) enacted that the true cause must be expressed, or the person arrested could give bail in a sum not greater than £40. To meet this an ac etiam clause was added to the writ which gave the real charge, and this continued until the Uniformity of Process Act (2 Will. IV. c. 39), which reduced all processes to the same form, but confirmed the jurisdiction of the King's Bench, in civil actions. (r) Besides its jurisdiction in criminal and civil actions, the King's Bench exercised jurisdiction over the other courts by means of the following writs :

(1) Mandamus.—This is a prerogative writ issuing from the King's Bench to an inferior court, person, or corporation, directing them to do some act appertaining to their duty or office, as in the case of a delay of justice in an inferior court. (s) An order nisi is made, and on the return to the writ the other side may show cause why it should not issue. The penalty for disobedience to the writ is attachment and committal for contempt.

(2) The writ of Prohibition.-This also is a prerogative writ issuing from the King's Bench and returnable there. It is directed to the judge or parties in an action in any inferior court, commanding them to desist from further proceedings on the ground that the cause does not belong to the jurisdiction of that court. (t) Formerly the only means of appeal was under the statutum de consultatione, (u) but now since the Judicature Acts appeal lies to the Court of Appeal, and thence to the House of Lords.

(p) For examples of these writs see Holdsworth, H. E. L. 438. (q) 13 Car. II. st. 2, c. 2.

(r) The corresponding writ used by the Common Pleas was that of Quare Clausum Fregit, which contained a nec non clause corresponding to the ac etiam clause.

(8) See Bl. Comm., iii. 103.

(t) Ib. iii. 105.

(u) (1296) 24 Ed. I. For the writ of consultation see Holdsworth, H. E. L. 430.

The penalty for disobedience is attachment and committal for contempt.

(3) The writ of Certiorari.-A prerogative writ issuing from Chancery or King's Bench to judges of any inferior court, commanding them to send the proceedings into the King's Bench. The subject obtains this writ at the discretion of the court chiefly on the following grounds: (i.) That an impartial trial cannot be had elsewhere; (ii.) that important questions of law are involved; (iii.) that a special jury is required to try the case.

(4) The writ of Error issued from the King's Bench to ap inferior court, some error of law or fact being alleged on the face of the pleadings. Error lay from the Common Pleas to the King's Bench, but the Exchequer refused to send their record on writ of error to the King's Bench in the time of Edward III. A committee of the council was therefore formed to review errors in the Exchequer, (x) and finally it was enacted in 1830 that error on any judgment in the King's Bench, Common Pleas, or Exchequer was to go to the Court of Exchequer Chamber to be heard by the judges of the other two courts, and thence to the House of Lords. (y) After the passing of the Judicature Act, 1873, appeal lay to the Appeal Court, and the writ no longer existed except in criminal cases, where there was some error in law apparent on the face of the record. (z) In such a case it issued from the Crown Office on the fiat of the attorney-general to the judge of some court of record, directing him to send the record to the proper court to be there inspected and reviewed and examined. (a)

The writ of error has now been finally abolished by the
Criminal Appeal Act, 1907. (b)

(x) 31 Ed. III. st. 1, c. 12.

(y) 11 Geo. IV. and 1 Will. IV. c. 70.

(z) Judicature Act, 1873, s. 47.

(a) As to the issue of these writs to any part of the king's dominions except Scotland, see Rex v. Cowle (1759), 2 Burr. 855.

(b) See p. 308, post.

The Exchequer. This court originally attended only to revenue matters, which at this epoch were heard by the treasurer, who had taken the place of the justiciar, and barons of the Exchequer. (c) Soon, however, the Exchequer developed a common law side, and trespassed upon the jurisdiction of the Common Pleas in cases of debt by means of the writ of Quominus, which proceeded under the fiction that A being indebted to B, he was by that fact the less able to pay the king's debt. (d)

The Exchequer also developed an equitable jurisdiction, which was, however, taken away in 1842. (e)

The High Court of Parliament.-Parliament was now distinct from the King's Council, and continue to exercise judicial functions principally in connection with petitions.

The King's Council.-As we have seen, this body, now distinct from Parliament, exercised judicial functions principally in connection with the granting of new writs (ƒ) for which no precedent existed.

The Chancery. The lord chancellor's power was at this epoch in its initiatory stage, and his functions were mainly secretarial. He had power to issue de cursu writs, or those for which a precedent already existed, but he could not issue new writs without the leave of the King in Council, for new remedies would give rise to new rights, and this could only be effected with the sanction of the council. The chancellor's judicial authority was thus in its origin derived from the council, which at first seems to have regarded his rising power with some disfavour, for by the Provisions of Oxford, 1258, (g) he was forbidden to issue new writs without the council's leave. Later on, by the statute of Westminster the second, (h) the clerks in Chancery were empowered to issue writs in consimili

(c) See Madox, Hist. Ex., ii. 26. Originally cases in the Exchequer were heard before the justiciar and chancellor; barons of the Exchequer were appointed temp. Hen. III.

(d) Bl. Comm., iii. 278. For an example of the writ see Holdsworth, H. E. L. 439.

(e) 5 Vict. c. 5.

(f) Writs for which a precedent already existed were termed de cursu writs.

(g) See Stubbs' Sel. Chart., 380.

(h) 13 Ed. I. st. 1, c. 24.

casu, or writs analogous to those already in use. This statute, however, they neglected to take advantage of, and eventually such causes as the common law courts could not take cognizance of, by reason of want of precedent for a writ, came under the chancellor's immediate jurisdiction, petitions being referred to him directly.

The Local Courts.-The manorial and county or shire courts continued to exist at this period, but their jurisdiction was increasingly on the wane.

By the writ of Quo warranto Edward I. called upon the lords of manors to show title to their jurisdiction, and where no grant or charter could be shown, they were forbidden to exercise jurisdiction in the future.

The Circuit System.-The circuit system, inaugurated by Henry 1. and improved upon by Henry II., continued to flourish at this period, and it seems probable that the justices in eyre, who went through the country at intervals inquiring into the administration of justice and other matters, but who also held pleas for the Crown, existed alongside with the commissioners of assize. In the reign of Edward I., however, there are traces of the growing importance of the latter, for the statute of Westminster the second (i) enacted that the justices or commissioners of assize were to be appointed out of the king's sworn justices, and to act with one or two discreet knights of the shire. By the same statute the commission of nisi prius was annexed to that of assize, and to these, fourteen years later, that of gaol delivery was also added. (k)

The circuit judges were still, however, subordinate to the King's Bench, and the writs of mandamus and error lay to them. This continued until the Judicature Act, 1873, when the assize courts were placed upon the same footing as courts of the High Courts of Justice.

(i) 13 Ed. I. st. 1, c. 30.

(k) 27 Ed. I. st. 1, c. 4. The commissioners of assize eventually entirely superseded the old justices in eyre.

CHAPTER II.

JUDICIAL INSTITUTIONS FROM EDWARD I. TO THE JUDICATURE ACTS, 1873 TO 1910.

The High Court of Parliament as a Court of First Instance.

We have seen already that the great earls and barons would bring their suits in Parliament originally instead of in the local courts as being entitled to judicium parium, a term which occurs first in Magna Carta. Private subjects also could petition Parliament, and new writs, and therefore new remedies, were sanctioned by this body or the King's Council. Further, cases of treason were often preferred in Parliament at the suit of the Crown, and it seems to have been the practice for subjects to bring criminal accusations in Parliament in the reign of Richard II., the procedure being by way of criminal appeal and battle. A statute of Henry IV. (a) (1399) put an end to criminal appeals in Parliament, but a commoner might still appeal a peer. (b) In 1663 the Lords resolved that a peer could not appeal another of treason, (c) and later impeachment, attainder, and indictment took the place of this procedure. Eventually appeal in criminal cases was entirely abolished in 1819. The functions of Parliament as a court of first instance then come to (1) the commons' right of impeachment; (2) procedure by attainder; (3) the functions now vested in the House of Lords of trying peers accused of treason or felony; (4) the functions of Parliament as a court of first instance in civil actions.

(a) 1 Hen. IV. c. 14.

(b) In 1626 the Earl of Bristol appealed the Earl of Conway and the Duke of Buckingham on various charges (see 2 St. Tri. 1267).

(c) 6 St. Tri. 317.