Court of Common Pleas of the County Palatine of Lancaster

The Court of Common Pleas of the County Palatine of Lancaster,[1] sometimes called the Common Pleas of or at Lancaster was a court of common pleas that exercised jurisdiction within the County Palatine of Lancaster until its jurisdiction was transferred to the High Court by the Supreme Court of Judicature Act 1873. It was a Superior Court of Record, exercising, within the limits of the County Palatine, a jurisdiction similar to that of the superior courts of common law at Westminster.[2]

Judges

The Judges of this Court were formerly limited to two in number, being always the two judges of the courts at Westminster who had chosen the Northern Circuit; but by section 24 of the statute 4 and 5 Will 4 c 62, the King was empowered "in right of his duchy and county palatine of Lancaster, from time to time to nominate and appoint all or any of the judges of the superior courts at Westminster, to be judges of this court: provided nevertheless, that the judges before whom the assizes for this county shall from time to time be held, and their respective officers, shall alone be entitled to the fees and emoluments heretofore received by the judges of the county palatine, and their officers." In pursuance of this Act, the King, by his letters patent, under the seal of the county palatine, dated 15 November 1834, constituted all the then judges of the courts of King's Bench, Common Pleas at Westminster, and Exchequer, judges of this court, reserving to the two judges of the preceding assizes, their fees and emoluments. And by another patent, dated 3 March 1835, the King appointed the then lately created judges of the courts at Westminster, Lord Alinger, and Sir J. T. Coleridge Knight, to be judges of this court.[3]

Notwithstanding the above general appointment, the judges of this court before whom the Assizes are holden, were, as of 1836, as before, appointed by a separate commission, under the seal of the county palatine,[4] which latter appointment was made whenever a change took place in the judges who went the Northern Circuit.[3]

By such separate commission one of the judges was constituted Chief Justice, and the other Justice, of all manner of pleas within the county palatine. No alteration in the form of such commission took place in consequence of the statute 4 & 5 Will 4 c 62; and the order of the King for holding the assizes at Liverpool as well as Lancaster, expressly directed that no alteration would be necessary in such commission.[5][6] As all actions tried here whether commenced in this court, or transmitted by Mittimus, were tried at bar, under the authority of such commission, there was no clause of nisi prius in the award of jury process; and the judges could not be assisted in the trial of civil causes by a sergeant, as in other counties.[7][8]

The chief justice usually presided in the crown court, at the assizes; and in vacation, rules and summonses were generally returnable before, and orders made by, him. The other assize judge usually presided in the civil court; and, during the Northern Circuit, rules and summonses were generally returnable before, and orders made by, him. Writs were tested in the name of the chief justice; or, in case of vacancy of such office, in the name of one of the other judges of this court. The judges had no associate; and each of them appointed his own marshal.[9]

Officers

Prothonotary

There was one Prothonotary of this court, whose office was a patent office, in the gift of the crown, in right of the duchy of Lancaster. This officer united in his own person the functions of the several clerical officers of the superior courts at Westminster: thus, he signed all writs issuing from this court, and filed the same when returned. All rules (necessary in the conduct of a suit) whether to shew cause, or absolute in the first instance, or upon a judge's order, were drawn up by him. With him, appearances were entered, and special bails, declarations, pleadings, and other proceedings, filed. He filed writs for the removal of causes into this court; and, returned writs of error and certiorari, for the removal of proceedings therefrom. Minutes of writs, declarations, pleadings, and other proceedings, were made by him, in books kept at his office: and he had the custody of all documents relating to the proceedings of this court.[10][9]

It was his business to nominate special juries; to make out writs of venire facias and habeas corpora for juries, as well for the trial of causes, depending in this court, as of those sent to be tried here, by mittimus; and in the latter he drew up the posteas, and transmitted the same to London. He also drew up and enrolled judgments and recognizances of bail; and made official copies of fines, recoveries, and proceedings in a suit. He taxed costs between party and party, and attorney and client; and computed what was due for principal and interest, on bills, notes, bonds, mortgages, etc. He took recognizances of bail, prepared commissions for taking the same, and decided (upon affidavits) as to the sufficiency, or insufficiency of bail, when objected to. There was, however, in cases of bail, a power of appeal from his decision to the judges of the court; but no instance had been known for many years up to 1836 of such an appeal having been made.[11]

By the order of the King for holding the assizes at Liverpool as well as Lancaster, the Prothonotary or his deputy was required to attend the assizes at both those places. In court, he called the jury, read documentary evidence, and took minutes of the proceedings and decisions. He also administered the oaths of persons admitted attorneys, and entered such admissions on the roll. For a long series of years the duties of this office were discharged by a deputy, resident at Preston.[12]

Sheriff

The executive officer of this court was the Sheriff, who was appointed yearly, by patent, under the seal of the county palatine. Such appointment generally took place in the month of February, and the proceeding thereon was somewhat different from that on the appointment of Sheriffs of counties not palatine; the Chancellor of the Duchy and not the judges, selecting three persons, whose names he submitted to the King, as Duke of Lancaster, and the first in the list was usually appointed. The Sheriff of Lancashire was an immediate officer of this court, and was therefore subject to its jurisdiction, and punishable for contempt. He was also considered an officer of the courts at Westminster, and amenable for disobeying the process of those courts. His own attorney was generally appointed under-sheriff; and if the under-sheriff does not reside at Preston, he deputed an agent there, to discharge the duties of the office; and the sheriff or his deputy was required to attend the assizes both at Lancaster and Liverpool.[13] Bailiffs, or officers for the execution of process, were appointed in the principal towns of the county, and acted under written warrants from the sheriff, in whose office the writs were lodged: but when the sheriff was a party to the suit, this court directed its process to the coroners of the county; and if they were interested, to elisors, named by the prothonotary.[12]

In order to prevent abuses in the execution of process, it was a rule of this court,[14] that "if any sheriff, under sheriff, sheriff's clerk, bailiff of liberty,[15] or other bailiff, shall wilfully delay the execution, or return of any process, or execution; or shall take or require any undue fees for the same; or shall give notice to the defendant, and there by the execution of any process or writ be prevented; or having levied money detain it in his hands, after the return of the writ, besides the ordinary course of amerciaments, an attachment, information, commitment, or fine, to be as the case requireth; and this as well in the case of a late sheriff, or other person before mentioned, as of them present in office." And in furtherance of this provision it was ordered,[16] that "if any sheriff's officer shall, under any pretence whatever, take from a defendant, on the execution of any bailable process, a larger sum than is allowed by this court, the sheriff shall, by an order of this court, or one of the judges thereof, be compelled to refund to the defendant, the amount of any such overcharge, together with the costs of any application that may be made for that purpose; provided such application be made, during the time such sheriff remains in office, or within a month afterwards."[17]

Transfer of jurisdiction to the High Court

Section 16(9) of the Supreme Court of Judicature Act 1873 provided that "there shall be transferred to and vested in" the "High Court of Justice the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by" the Court of Common Pleas at Lancaster.[18] This provision was repealed and replaced by section 18(2)(a)(v) of the Supreme Court of Judicature (Consolidation) Act 1925, which was to the same effect.

As to prothonotaries, district prothonoataries and other officers of the Court of Common Pleas, see section 78 of the Supreme Court of Judicature Act 1873.[19]

References
  • Joseph Walton. The Practice and Procedure of the Court of Common Pleas at Lancaster, under the Common Pleas at Lancaster Amendment Act, 1869, and the General Rules and Orders, 1869. Henry Sweet. Chancery Lane, London. Swinden & Son. Harrington Street, Liverpool. Meredith & Ray. Manchester. Lawrence Clarke & Son. Preston. 1870. Google Books
  • William Wareing. The Practice of the Court of Common Pleas at Lancaster, in Personal Actions, and Ejectment. Saunders and Benning. London. Addison. Preston. 1836. Google Books
  • John Frederick Archbold. A Summary of the Laws of England: In Four Volumes. Shaw and Sons. Fetter Lane, London. 1848. Volume 1. Chapter 1 of Part 4. Pages 177 to 184.
  • Wynne E Baxter. The Law and Practice of the Supreme Court of Judicature. Butterworths. Simpkin, Marshall & Co. London. 1874. Pages 10, 30, 52, 53, 65, 172 (Note 59), 173 and 181.
  • George Barclay Mansel. The Law and Practice as to Costs. Spettigue. London. 1840. Pages 36, 129 to 131, 164, 177, 192, 198 and 199.
  • R Somerville. "The Palatine Courts in Lancashire". In A Harding (ed). Law Making and Law Makers in British History: Papers Presented to the Edinburgh Legal History Conference, 1977. (Studies in History 22). Royal Historical Society. 1980.
  • Edward Baines. History, Directory, and Gazetteer, of the County Palatine of Lancaster. Wm Wales & Co. Liverpool. 1824. Volume 1. Pages 132 and 133.
  1. 4 & 5 Will 4 c 62, long title. Evans & Hammond & Granger, A Collection of Statutes Connected with the General Administration, 3rd Ed, 1836, vol 9, p 528.
  2. Walton, The Practice and Procedure of the Court of Common Pleas at Lancaster, 1870, p 4.
  3. Wareing, The Practice of the Court of Common Pleas at Lancaster, 1836, p 17
  4. 27 Hen 8 c 24, s 5
  5. See chapter 5 of Wareing's book.
  6. A copy of the judge's patent is given below: Patent of the Chief Justice of the court:— "William the Fourth, by the Grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith. To all to whom these our present Letters shall come greeting. Know ye that we of our especial grace, certain knowledge, and mere motion, have given and granted, and by these presents do give and grant unto our right, trusty, and well-beloved, John Lord Lyndhurst, our Chief Baron of our court of Exchequer at Westminster, the office of Chief Justice, of Common Pleas, within our County Palatine of Lancaster; and the office of Chief Justice of all manner of pleas within our County palatine aforesaid, to be held, heard, and determined, to the before-named Lord Lyndhurst we give and grant by these presents; and the same Lord Lyndhurst, our Chief Justice, of Common Pleas within our County Palatine of Lancaster, and our Chief Justice of all manner of pleas within our County Palatine aforesaid, to beheld, we make, ordain, and constitute by these presents: we also constitute and ordain by these presents, the before-named Lord Lyndhurst, our Chief Justice, of all manner of pleas, as well of the Crown as of Assize, Novel Disseizin, Mort d'Ancestor, Juris Utrum, Certifications, and Attaints, and other pleas whatsoever, within our County Palatine of Lancaster, which shall be arraigned or prosecuted at Lancaster, or elsewhere in the same county, to be held, heard, and determined, (which said offices by other our Letters Patent, under the seal of our County Palatine aforesaid, bearing date the 30th day of January, in the fourth year of our reign, were given and granted unto our trusty and well-beloved Sir William Elias Taunton, Knight, one of the Justices of our court before us, so long as it should please us, which our pleasure we have determined and do determine by these presents), to have, enjoy, occupy, and exercise the offices aforesaid, and every of them, unto the before-named Lord Lyndhurst, so long as it shall please us: to be taken for the premises, the Wages, Fees, and Profits, autiently due and of right accustomed, by the hands of our Receiver General, of our duchy of Lancaster, for the time being, at the usual Feasts. In witness whereof, we have caused these our Letters to be made patent. Witness ourself at Lancaster, the 16th day of June, in the fourth year of our reign." The patent of the other assize Judge is similar in all respects, except, in constituting him "Justice" instead of "Chief Justice" of the court.
  7. Evans' pr 6
  8. Wareing, The Practice of the Court of Common Pleas at Lancaster, 1836, p 18
  9. Wareing, The Practice of the Court of Common Pleas at Lancaster, 1836, p 19
  10. See chapter 6 of Wareing's book.
  11. Wareing, The Practice of the Court of Common Pleas at Lancaster, 1836, p 19 & 20
  12. Wareing, The Practice of the Court of Common Pleas at Lancaster, 1836, p 20
  13. Order of the King in Council of the 24 June 1835. See London Gazette of 26 June 1835.
  14. Reg Gen Sep Ass 1655
  15. The Liberty of Fumess was the only Liberty within the county, which possessed an exclusive right to the execution of process within its precincts by its own officers; but this right was very limited as of 1836, as the writ of capias to arrest now contains a clause of non omittas.
  16. Reg Gen (49), Mar Ass 2, W 4
  17. Wareing, The Practice of the Court of Common Pleas at Lancaster, 1836, p 21
  18. William Downes Griffith and Richard Loveland Loveland. The Supreme Court of Judicature Acts, 1873, 1875, & 1877. Second Edition. Stevens and Haynes. Bell Yard, Temple Bar, London. 1877. p 12. See also p 758 for other relevant provisions.
  19. William Thomas Charley, The New System of Practice and Pleading under the Supreme Court of Judicature Acts 1873, 1875, 1877, the Appellate Jurisdiction Act 1876, and the Rules of the Supreme Court, Third Edition, p 186
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