2. Proceedings in the Petty-Bag Office. In this court the Chancellor has jurisdiction, to hold a plea of scire facias to repeal the King's letters patent (d); and on petitions of right, monstrans de droit (e), traverses of office, scire facias upon recognizances (ƒ), executions upon statutes, &c. which being registered in this court, the process issued out of the same, and was returnable there, and entered in the office, called the Petty-Bag (g). All personal actions by or against any officer or minister of the court, in respect of his service or attendance, may be brought in this court (h). When, however, the parties proceed to issue, the Chancellor cannot try it, as he may do a demurrer (i), but must deliver the record into the King's Bench, where judgment is given: and no judgment can be given by the Chancellor unless in Term; and where it was given out of Term it was ordered to be drawn up the next Term (k). After a verdict in the King's Bench, in an action commenced in the Petty-Bag, if the defendant has not been charged in execution within two Terms, he (d) 4 Inst. 79. As to proceedings on a scire facias, and a judgment for cancelling letters patent, see Prince's case, 8 Co. 1, &c. (e) See the form of a judgment upon a monstrans de droit, 8 Co. 404. (f) Recognizances entered into in pursuance of an order of the court of Chancery will not be allowed to be sued upon, otherwise than by a scire facias in Chancery. Grant v. Stone, 1 Vern. 213. And see Latch. 3. 1 Eq. Cas. Abr. 128. Cro. Car. 113. (g) 4 Inst. 80. (h) 2 Bac. Abr. 136. (i) Ibid. Upon motion the court will order a demurrer in the Petty-Bag to be set down for argument. [King v. Knos, Coop. 98.] (k) Ambl. 296. must, it seems, apply to the Court of King's Bench to discharge him; a Judge of the King's Bench made an order for that purpose," and the Chancellor, to remove any difficulty, made an order to the same effect (1). An application for a new trial must be made to the Court of King's Bench, and not to the Lord Chancellor (m). When a writ of scire facias is issued out of the Petty-Bag to repeal a charter, upon issue being joined, the record is transmitted into the Crown Office of the King's Bench, and the cause is tried at the bar of that Court (n). The jurisdiction of the Chancellor in this Court being so very limited, is the reason, probably, that it is seldom resorted to, and that so little is to be found in the books respecting it. It has been said to be nearly obsolete (o). A very important part of the Chancellor's commonlaw authority respects, 3. The ordering of Writs to be made out by the Cursitors. All original writs are awarded out of the Chancery by the Chancellor; and his power, in this respect, is defined by the common law; and if he exceeds his authority, or does not pursue it in such order as the law has appointed, the party, by exception, may abate such writ (p). The work intitled Register Brevium (1) Fraser v. Lloyd, Coop. 187. (m) Ex parte Barker, 1 Cox (n) As 418. was the case in Regina v. Ballivos, &c. de contains the particulars of all the writs, nearly two hundred in number, issuable by the Chancellor; and it has been most ably commented upon by Fitzherbert in his Natura Brevium, which book, together with the notes upon it by Sir Matthew Hale, have nearly exhausted the subject. On account of its thus issuing of writs, the court of Chancery was termed the forge and shop of all originals (q), officina justitiæ: writs issued from thence at all times; and the fountain of justice was always accessible to the King's subjects. The manner in which the business there was conducted seems to have been thus: the party complaining to the King's Court for relief used to be referred to the Chancellor (in person, perhaps, originally) and related to him the nature of his injury, and prayed some method of redress; and thereupon the Chancellor framed a writ so as to obtain him the specific redress he wanted. When this had been long the practice, such a variety of forms had been devised, that there seldom arose a case in which it was required to exercise much judgment: the old forms were adhered to, and became precedents of established authority in the Chancellor's office. At length the making of writs grew to be a matter of course, and the business very much increasing, it was confided to the Chancellor's clerks, called clerici cancellaria, and since, cursitores cancellariæ. A strict observance of the old forms rendered them so sacred, that in time any alteration of them was esteemed an alteration of the law, and therefore could not be done but by the Great Council; nor was it unusual for a plaintiff, where no writ could (4) Lambard's Archcion, p. 48. be found in Chancery that suited his case, to apply to Parliament for a new one (r). These applications were so inconvenient that the statute of Westminster the second was passed, (13 Edw. 1. c. 24,) by which it was provided, that "whensoever from thenceforth in one case a writ shall be found in the Chancery, and in a like case, falling under the same right, and requiring like remedy, no precedent of a writ can be produced, the clerks of Chancery shall agree in forming a new one, and if they cannot agree, it shall be adjourned to the next parliament, where a writ shall be framed by consent of the learned in the law, lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors (s)." This statute, says Blackstone (somewhat hastily)" with a little accuracy in the clerks of the Chancery, and a little liberality in the Judges, by extending rather than narrowing the remedial effects of the writ, might have effectually answered all the purposes of a court of equity, except that of obtaining a discovery by the oath of the defendant (t)." New writs were afterwards framed in pursuance of this statute, but always with great care and attention; the Chancellor, sometimes, asking the advice of the Chief Justices of both Benches, and the Chief Baron of the Exchequer (u). These original writs are returnable into the King's (r) See Reeves's History of the English Law, 1 vol. p. 60. (s) I have quoted Sir William Blackstone's "translation of the statute in preference to the common translations; see 3 vol. Com. p. 50, 1. (t) Com. 3 vol. p. 51. (u) See Paine v. Sidney, Dyer 208, noticed, 1 Sch. & Lefr. 77. Bench (x) or Common Pleas. The writs returnable into the Common Pleas are, generally, all original writs, as well in real as personal actions. The writs returnable into the King's Bench, are, 1. Assizes of novel disseisin, in the same county where the bench sits; 2. Writs that suppose a personal wrong or force, as, trespass vi et armis, ejectione custodia, ravishment of ward, ejectione firma vi laicá; 3. All writs or suits for the king, whether real, personal, or mixt, as writs of right; 4. Writs of quare impedit, quare non admissit, &c. though, saith Sir Matthew Hale, some books are contrary, and therefore this hath been ordinarily in the Common Pleas; 5. Writs of replevin; 6. Actions of conspiracy, actions upon the case, and regularly all writs in personal actions, except debt, detinue, covenant, account, and, in some instances, writs of annuity (y). Some original writs pay a fine to the king; as all writs in real actions, assizes, &c. and personal actions, as, in debt. Many of the writs above enumerated are not now employed, for the proceeding by Ejectment, introduced in the reign of Henry the Seventh, has, in a great degree, occasioned the disuse of real actions (2): so much so, that the writ of quare impedit is almost the only real action that remains in common use (a). Such writs, however, as relate to personal actions, are (x) The King's Bench has only an original authority over actions commenced by Bill; for in actions by original the writ is sued out of Chancery. Mayov. Rogers, 15 East 540.] (y) Vide Discourse concerning the Courts of King's Bench and Common Pleas, by (z) See Booth on Real Actions; Har. Co. Litt. 239. a. n. 1. (a) 3 Black. Com. p. 251, |