Page:The American Cyclopædia (1879) Volume V.djvu/434

430 power, in all cases not otherwise provided for, to compel inferior courts and magistrates to do their duty. By a fiction of law it also acquired jurisdiction of all civil cases except actions relating to real estate, and might even try titles in ejectment; the fiction consisting in an allegation in pleading that the defendant was in custody for a trespass. The court of common pleas had originally exclusive jurisdiction of all purely civil actions, and always retained sole cognizance of actions relating to the realty, except ejectment as above stated. The business of the court of exchequer was originally the collection of debts due the crown, but jurisdiction was obtained of all personal actions by a fiction, viz.: an allegation that the king's debtor had suffered an injury whereby he was less able to pay his debt; whereupon he was allowed to implead in this court the person charged with the wrong. There was a common law and an equity side to the court, but the jurisdiction on the equity side was afterward transferred to the court of chancery. (See .) From all these courts difficult cases were adjourned before judgment to the exchequer chamber, consisting of the judges and barons of the three law courts, the chancellor and lord treasurer; and in some cases an appeal might be taken after judgment to that court. Chancery cases heard before the master of the rolls or a vice chancellor might be appealed to the chancellor (with whom of late have been associated two, and then three lords justices of appeal), and from thence, as well as from the exchequer chamber and the highest courts of Ireland and Scotland, to the house of lords. By the act of August, 1873, the several superior courts of England, including the courts of chancery, admiralty, probate and divorce, and London court of bankruptcy, are consolidated into one supreme court, to consist of two parts or divisions, one the high court of justice, and the other the court of appeal. All the judges of the old courts are made judges of the supreme court, and as vacancies occur in their number appointments are made in their stead, but not until the number is reduced to 21. The high court is divided into sections named after the old courts, but it is to administer justice under simple forms, and without distinguishing between law and equity, giving precedence to equitable principles. The lord chancellor, the two chief justices, the chief baron, and the master of the rolls are to continue to be appointed with the same titles and rank as before. The judges will go as formerly upon the circuit. The court of appeal will be composed of the chancellor, the two chief justices, the chief baron and master of the rolls, with not exceeding nine ordinary judges, who shall at first be the lords justices of appeal in chancery, the three salaried members of the judicial committee of the privy council, and three to be appointed; and it will have the former appellate jurisdiction of the lord chancellor, the court of appeal in chancery, the exchequer chamber, the judicial committee of

the privy council in admiralty cases, and of the house of lords in English cases. The trial of all common law causes in the first instance has always been before itinerant or circuit judges, one of whom must be a judge of one of the superior courts of Westminster, which judges are sent annually into every county of the kingdom for the trial of civil and criminal cases which are to be brought before a jury. They were first appointed in the reign of Henry II., and were then called justices in eyre (justiciarii in itinere), but afterward designated as justices of assize and nisi prius. Their commission also authorizes them to try all criminal cases, which part of their duties is expressed by the old law phrases of oyer and terminer (to hear and determine), and general jail delivery; the former relating to cases upon which an indictment is found by a grand jury at the same circuit, the latter to indictments previously found upon which there had been an arrest and imprisonment of the parties indicted. The commissions of assize and nisi prius relate to civil causes. Assize in the old English law was the name applied to the trial of issues relating to the freehold, by a species of jury called recognitors, who were allowed to decide upon their own personal knowledge without the examination of witnesses; in modern law the term designates issues in actions relating to real estate. Nisi prius is a phrase in the writ issued to the sheriff for the summoning of a jury, by which he is commanded to bring them before the court at Westminster at a certain day in term, unless before that time the justices of assize should come into his county; and as the justices accordingly come, the sheriff returns the writ at the court of assizes.—In France, the administration of justice, which originally belonged to and was exercised by the suzerains or feudal lords in person, was, by a process similar to what took place in England, vested in certain officers appointed for that purpose, who at first were considered as the mere deputies of the suzerain, but were afterward recognized as having independent official functions. One peculiarity prevailed in all the seigniories, viz., that whether the seigneur or his deputy, or the latter judicial magistrate (under the name of bailli), presided, it was necessary for the adjudication of any question to call together the principal vassals, who in fact constituted a court, although at first they were spoken of rather as advisers of the seigneur than as judges; but afterward, when the baillies held the courts, they were obliged to submit every case to the judgment of the assembled vassals, who then began to be called peers. These courts decided all questions between the vassals themselves or between vassal and seigneur, except that in the latter class of cases such questions were excluded as involved a contest between the seigneur and the vassals generally, which questions were brought before the suzerain or superior lord of whom the seigneur held. In