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Notes &c. suggesting the same to be lost, or cannot be proved for want of evidence. To which if the Defendant appears and acknowledges such Bonds &c. and other facts stated in the Bill, the Baron then makes an order for their payment with costs, or, if the cause comes to be heard, such Bonds, Notes &c., are proved by the answer. But notwithstanding the convenience of recovering a debt in this summary manner, it is certainly a practice illegal and of dangerous consequence; as it introduces a method of determining properties in an arbitrary manner, and without interposition of a Jury, contrary to Magna Charta chap. 29, which is further explained in the 37 Edward III. chap. 8, and means that every person must be proceeded in Criminal or Civil matters by the presentment, Indictment, original or other process et per pares suos, or a Jury. But on the other hand it is urged in favour of this practice that the Court of Exchequer at Chester hath always been of a mixed nature; but by this can be understood that it hath power only to proceed in matters of common law in the manner with the Court of Chancery above, such as prohibitions, Recognizances acknowledged in Court &c. Mr. Tenwick [or Fenwick], formerly Vice Chamberlain, had certainly abolished this practice had not his regard to the Clerks in Court been very great, for were this practice at an end, the business of the clerk would be so small that probably no attorneys of reputation would attend, and so the Court become contemptible; but were the Clerks in Court (as formerly) not to exceed four, the business might still be sufficient, and the common Bills turned into actions at law. The statute of 4 Anne, chap. 16, enacts that no subpoena or other process should issue for an appearance out of any Court of Equity till the bill is first filed with the proper officer (except bills for injunction to stay waste or
suits at law commenced), and a proceeding contrary to this statute is not regular. Yet the common practice is to sue out the subpoena or other process before the bill be filed, and to file the bill the first court day after such process is returnable."
Here follow detailed instructions with regard to routine work by practitioners in the baron's clerks' office this resembling our local chancery registry. Some details are amusing-for instance, the direction that if the "door of the defendant's house be shut, and the defendant (sought to be served with process) looks out at the window, then read the contents and leave the label on the ground in his sight."
One amusing characteristic of the court is the jealous separation of the offices of attorney and solicitor, there being a special scale of charges applicable to the attorney, and another applicable to the solicitor; and in one form (namely, of attachment for contempt) one gentleman, "Dicas," is recorded as the attorney, and another, "Chetham" (did he deserve the name?), as the solicitor for the plaintiff.
I here give a list of the officials mentioned in the rules: "Chamberlain," vice-chamberlain," "baron," "baron's clerk," "seal keeper," "bailiff itinerant," "sheriff," "deputy baron," "examiner," "filazer," messenger,' ," "crier," and the "clerks in court," beside the "commissioners," who are chosen from time to time by respective parties for various interim proceedings in the action or suit, particularly for "taking special bail."
Many phrases now obsolete, e.g., "titling" (for “precipe"), "docketing" (for filing, &c.), are used in the records.
After referring to the practice of "attachment," one in
"common form" and the other by "proclamation," the author of the "Essay" says: "This is the due method of executing this writ, but it is very common for the attorney to keep it in his hands till it is returnable, and then get the Sheriff to return it without making out a But that this is irregular and contrary
to the very design of the writ is plain.”
Then, after referring to other procedure, he says:
This practice shows the perversion of excellent design, and I cannot conceive how a Sheriff consistent with his oath can do it. In some cases the return of writs is matter of form, but here it is quite otherwise. The defendant is put to great expense which, tho' in some measures is his own fault, is condemning the Court. Yet it only designs to compel him to his duty & not to promote his ruin."
After the return of the "attachment with proclamation," it was the practice to sue out what was called a "Commission of Rebellion," under which any of the "Commissioners might arrest the defendant, and, in order thereto, they may break open his house, or the house of any other person where he is, which cannot lawfully be done upon an attachment or attachment with proclamation. A man's house being (in the eye of the law) his Castle, but upon this he is deemed outlawed and a Rebel."
Another interim remedy was a "Commission of Sequestration," which was awarded after "a great fine, for the use of the King, had been imposed upon the neglectful defendant," which commission allowed of the sequestration of "all his lands, goods, and chattels, &c., as well to satisfy the said fine as the Plaintiff's demand," the bailiff's right of arrest being still enforceable as soon as the defendant may be found.
These were the various powers by which the court enforced its jurisdiction and compelled obedience to its orders.
Several forms or evasions by which variations in the procedure could be arranged are somewhat humorous. For instance, in order to secure a "warrant" to lead to a particular kind of "commission," the plaintiff had to allege that the defendant was “old and infirm and unable to travel to court, which are words of course," and, of course, almost invariably untrue.
The witnesses were examined in chambers by means of interrogatories, taken before the officials, "but," remarks the essayist, "if the cause depending be of very great consequence, it is most usual to examine by commission, as both parties may choose their Commissioners and be a check upon one another, for in a Court of Equity, there being no Jury nor the witnesses examined in open court, 'tis proper there should be the greatest care and niceness in the wording and taking down the depositions, as thereon depends the success of the suit, and a man if he can bear the expence would rather choose this way than depend upon the capacity, care, or honesty of a single officer." And further, the essayist says that "though you design to examine by Commission yet you must enter a rule," or prove by affidavit, that witnesses are actually unable to travel, for the court presumes "that her officers are honest and able to do their duty and will not encourage that method because it is to their prejudice."
The mode of preserving and identifying depositions is interesting. It is thus described:
"When the business of the Commission is over, all the witnesses being examined and their depositions being engrossed, the Commissioners subscribe their names to
the first and last sheet of the paper depositions, which, being folded up and bound with tape and sealed with their seals, they cut into two parts, and take each side half, which they keep till publication. I suppose on this account that if any accident happen to those on parchment, returned with the Commission, the others may be used in their stead."
Finally, we learn that "having delivered your Briefs to Counsel at the sitting; if the other side appears, the plaintiff's Junior Co'l opens the substance of the Bill and Answer and the cause is regularly heard, upon which the Vice Chamberlain pronounces the decree the Baron or his clerk minutes down that the order afterwards may be drawn up in term."
In one of the forms we read: "This Court thinks fit and it is this day ordered by the Right Hon. James Earl Cholmondeley, Chamberlain of the County Palatine of Chester, and by the Right Worshipful [A.B.] Esquire, his Honour's Vice Chamberlain; and by this Court, that &c." (It appears elsewhere that documents are to be sent, for signature by the Vice-Chamberlain, who we learn generally resides in London.)
A new trial or amendment of decree could be obtained by petition to the Vice-Chamberlain, signed by the counsel employed in the cause, or a party might appeal to the Lords in Parliament, "though," says our author, "this is seldom, or never done."
In conclusion, a careful study of the procedure leads me to say that it is not to be wondered that the jurisdiction of the court was abolished in the early part of this century; but rather that it was not abolished long before the summary remedies of the court being clearly liable to abuse. We present practitioners in the courts know that there are amendments yet for introduction