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William Tidd.

The practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) online

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Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) → online text (page 12 of 90)
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fusing to do business in office hours, without the payment of extra
fees, Holydays, it appears, are of two kinds : first, such as were
ori"-inally derived from the church , and secondly, state holydays.
The former are of ecclesiastical institution ; but when, upon the re-
formation, the liturgy was settled and established, such days were
enjoined to be observed ; as plainly appears by the statutes 2 & 3
Edw. VI. c. 1. & 19. and5 & 6 Edw. VJ. c. 3: And though these
acts were abrogated by Queen Mary, yet they were revived and
continued in the first years of Queen Elizabeth, and King James.'^

The reasons for these holydays, being of a religious nature, are
fully stated in the preamble to the statute 5 & 6 Edw. VI. c. 3. by
which it is enacted, that " all the days hereafter mentioned shall be
" kept and commanded to be kept holydays, and none other, that is
" to say, all Sundays in the year ; the days of the feast of the Cir-
" cumcision of our Lord, (being the 1st of January) ; of the
" Epiphany, (6th of January) ; of the Purification of the blessed
" virgin Maty, {2d of February) ; of St. Matthias the apostle,
" (24th of February) ; of the Annunciation of the blessed virgin,

a R. T. 34 Geo. III. K. B. 3 Maule St Sel. <= R. T. 1 636. B. E. 1659. R, E. 13 Car.

163. 5 Taunt. 702. 1 Marsh. 245. C. P. H. reg. 1. K. B. and see R. M. 13 Car, lU

and see a former rule of M. 34 Geo. III. R. H. 24 & 25 Car. II. R. E. 32 Car. II. R.

K. B. T. 4 W. & M.reg. 3. K. B. R. T. 1649. R.

•• R. 3 Apr. 1747. K. B. and see the sta- M. 1634. § 6. R. T. 9 W. III. C. P.

tuteCGeo. I. c. 21. §33. 2 Wils. 47. 1 <> Nelson's Festivals, 1, 2.
Chit. Rep. 320. (a).



OF THE OPpiCERS OF TCE COURTS. 49

*' (Qath of March) ; of St. Jtlark the evani^elist, (Solh of April) ;
*' of St. Philip and Jacob (lio apostles, (1st of Maij) ; of tlie
" Ascension of our Lord, (which is a iiioveahle feast, happenini^ 40
*' days alter Easter, and 10 days before Jl'hifnunticle) ; of the
" Naticity of St. John the baptist, (24th of June) ; of St. Peter
" the apostle, (QOlh of June) ; of St. James the apostle, (25tli of
" July) ; of St. Bartholomew the apostle, (21th of August) ; of
" St. Matthew the apostle, (21st of September) ; of St. Michael
" the arch;uij^el, (20th of September) ; of St. Luke the evangelist,
" (18th of October) ■, of St. Simon and J^uf/e the aj)ostles, (28tU of
'* October) ; of All Saints, (1st of Norember) ; of St. Andrew
" the aj)oslle, (30th of November) ; of St. Thomas the apostle,
*' (2Tst of December) ; of the Nativity of our Lord, (25th of
" December), and the three following days, (being the feast days
" of St. Stephen the martyr, St. John the evangelist, and the
" Holy Innocents) ; and Monday and Tueslay m Eastsr and
" Whitsun weeks :" to which may be added Good Friday, though
it is not mentioned in the statute. Hence it appears, there are
twenty four licensed holidays in a year, besides those in Easter and
IVhitsnn weeks ; of which, it will be seen, there arejive in the month
of December, and in every other month two, except in March, April,
July ixni\ August, in each of which there is oidy one; which was
probably on account of these being the months of seed-time and
liarvest.

The statute being express, that " none other days slull be kept or
commanded to be kej)t holyday, or to abstain from lawful bodily
labour," it has been determined, that the feast day of St. Barnabas,
not being mentioned in the statute, is not a legal holyday at the seal
office* ; and though it appeared by affidavit, in the case of Piggins
V. fVillie*', that this feast was kept at the excise, customs, &.c. and
that for 35 years together, and before the then officers came into the
office, it had been kept at the seal office in this manner, that is, the
outer door had been kept shut the whole day, if St. Barnabas fell
on a .Monday, IVednesday or Friday, but on Tuesdays, Thurs-
days and Saturdays, it was shut in the mornings only, those being
post nights, yet from the opinion of Mr. Justice Blackstone in tliat
case*^, it seems that this practice crept in when St. Barnabas be-
came a state holyday, by coinciding with the king's inauguration or
accession, which it did for the first 25 years of the reign of George the
second, till they were separated by the new stile act, in 1752. It is

«2Blac. Rep. 1180.1314. c /,!. \\SS.

*> Id. 1 1 36.



50 OF TIIF. OFFICri^S OF THE COURTS.

also ol>>orv;il)!L', that tluMcis another least clay observed by the churchy
\v!>ich is not lueiitioneil in the statute 5 & 6 Edw. VI. namely, the
conversion of St. Pant, wliich hapj)ens on the 25th of January;
and the reason why this feast day, as well as that of St. Barnabas,
5'ie not irentloned in the statute, probably was, that one of these feasts
always happens in Hilary term, and the other frequently in Trinity
term ; and, as there was already one holyday at least in each of these
terms, it mi^i'ht have been thoui^ht that the business of the court
would have been interrupted, if more had been allowed, and directed
to be kej)t.

^tate holidays are either appointed by act of parliament, or
founded on ancient usage. The former arc the anniversary of the
Gunpowder Treason, {JSovember 5,) the martyrdom of Charles
the First, {January 30,) and the restoration of Charles the Second,
[May 29,) which are made state holydays by the statutes 3 Jac. 1.
c. 1. 12 Car. II. c. 14. (confirmed by 13 Car. II. stat. 1. c. 11.) and
12 Car. II. c. 30. : The latter are the birth day, accession, procla-
mation, and coronation of the reigning monarch ; and the birth
days of his consort, and the prince of Wales. And it lias been
usual to keep half holydays on some other days ; as, on Shrove
Tuesday, Ash Wednesday, the feast of All Souls, [November 'i),
and the birth day and landing of William the Third, [November 4) ;
the offices being open only half the usual hours of attendance on those
days. But it has been determined, by the court of Common Pleas,
that Lord Mayor''s day is not such an holyday, as entitles the
sealer of writs to an extraordinary fee for sealing a writ on that
day''.

The only licensed hoi j days in term, time, are said to be the Puri-
fication in Hilary term. Ascension day in Easter terra, and St.
John the baptist'', (being Midsummer day,) if it happen in Trinity
term, unless it be on Friday next after Trinity Sunday, in which
case it is dies juridicus, by the statute 32 Sen. VIII. c. 21.*^
These are considered as dies non juridici ; but on all other days,
the courts regularly sit for the dispatch of business in term time,
though it has been usual on tiie 30th of January, (being the anni-
versary of the martyrdom of Charles the First,) for the courts to
rise early, or as soon as the common business is over. And, as the
courts sit themselves, they expect that the offices should be open on
all other days in term time : For, as was observed by Mr. Justice
Blackstone, in the case of Sj^arrow v. Cooper'^, the officers are
supposed to be every day in court, sitting at the feet of the chief

» 5Taunt. 180. c i Ci.it. Rep. 400 (a).

<> 2 DIac. Rep, 1316. 7 Durnf. Sc East, ^'2 Blac. Rep. 1316.

336.



OF THE OFFICERS OF THE COURTS. 61

juslice, and (in the case of the sealer of writs,) affixing the seal of
the court to all judicial writs, which are witnessed at Westminster,
in the nanoe of the lord chief justice. The suttering him to do this
in a private chamber is a mere indul^'cnce, convenient to (he court,
the suitor, and the oflicer, and therefore connived at ; hut the sup-
position of law is otherwise. Of course, upon all days when the
courts sit at JVeatminster, he ou£;ht to be ready to execute his duty
at all convenient hours. On these or similar p^rounds it has been de-
termined, that the feast of St. Philip and Jacob, ^\hich happens
on the 1st of yl/a^, is not a holyday^, nor the '29th of J/a»/, bein£j
the restoration of Charles the Second^', when those days fall in
Easter term ; nor the feast of St. Peter, being the 29th of June,
when it falls in Trinity term' ; and consequently, no ofncer can take
an extraoi'dinary fee for business done on these days.

It has been made a question, whether the officers are entitled to
take extra foes, for business done on legal holydays in vacation :
and upon this subject. Lord Elleuhorovgh is reported to have said,
in the case of Twecldule c. Fenuell'\ that the oflicers, though they
may keep legal holydays, u\ust not be allowed to sell or make a
trafiic of them. But it should be observed, that in this case an extra
fee had been taken by the clerk of the declarations, on (he feast of
St. Peter; which, though mentioned in the sta(u(c 5 & 6 Ediv. VI.
is not considered as a legal holyday in term time. This question
liowever, came directly before the court of Common Pleas, in the
case of Martin v. Bold'', but was not decided. In that case, the
deputy sealer of writs, being at his office on a legal holyday, (that
of St. Luke, which falls on the I8th of October,) a writ was oHbred
him to seal, which he refused to do without an extra fee ; and the
court, without deciding on his right to make such a demand, held
that at all events, his refusal to seal the writ was not an oOfence, for
which they would grant an attachment: so that the question may
be considered as still unsettled.

The remedies against officers, for not opening their offices, on days
which are not licensed holyd:iys, is by special action on the case for
consequential damages', or by summary aj)j)lica(ion (o (lie court
for an attachment^ : or, if they have taken improper fees, an action
oi assumpsit maybe maintained for money had and received; or

• 2 Smith R. 403. of Mariui v. Bi/d, 7 Taunt. 18'2. 2 Marsh.

*> 7 Duinf. & East, 336. 4S7. S. C.

« Tweddale v. Fcnndl, T. 36 Geo. III. • 7 Taunt. 182. 2 Marsh. 4S7. S. C.

K. B. f2 Blac. Rep. 1187.

d T. 56 Geo. III. K. B. This case is not s 7 Taunt. 182. 2 Marsh. 437. S. C.
yet reported ; but is referred to in the case

E '2



6% OF THE OFFICERS OF THE COURTS.

the court will order them to be refunded*'. And, in the Common
Pleas, where a complaint is made against an officer of the couft,
the judges will not refer it to the prothonotaries for examination,
but will examine it themselves''.

The officers of the court of Exchequer of Pleas, are the clerk of the
pleas, and his deputy, who is called the master. The clerk of the
])leas is appointed by the chancellor of the Exchequer for life, or
quamdiu se bene gesserit, and the deputy or master, by the clerk
of the pleas; and the business of the master is to take minutes of
what is done in court, draw up rules, make reports on matters re-
ferred to him, tax bills of costs, allow bails, and sign process and
judgments. The clerk of the pleas is also clerk of the errors in the
Exchequer Chamber ; and his duty in that character is to allow
writs of error, certify transcripts, and attend the court of Exchequer
Chamber, and draw up rules thereon. The general business of the
office is the prosecution and defence of actions at common law, and
the enrolment of deeds ; which business is transacted hy four sworn
clerks or attornies, appointed by the clerk of the pleas for life, and
sixteen side clerks, or clerks in court, four of whom are ap^>ointe(^
by each of the attornies''. In this court, the office of sealer of writs,
&c. is executed by the under-secretary of the chancellor of the
Exchequer'.

Sheriffs may also, to some purposes, be considered as officers of
the courts; and it is their duty to have deputies therein, to receive
and return writs and process*^: which deputies are required to give
their personal attendance in JVestminster hall, daily in term time^
And, for the prevention and remedy of delays and abuses in sheriffs,
under-sheriffs, bailiffs of liberties, and their deputies, and other
bailiirs of sheriffs, &c. in the execution of process and writs, it is a
rule^, that " if any such officer shall willfully 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, thereby
to frustrate the execution of any process or writ, or having levied
money, shall detain it in his haiuls, after the return of the writ, be-
sides the ortiinary course of amerciaments, the contempt or misde-
meanor ajjpearing, an attachment, iniorniation, commitment or fine

a 2 Blac. Hep. 1314. 7 Dunif. &, Ka^i, Ij ^ If. €/•■. II. C. P.

336. 5 Taunt. ISO. ' R. H. iil CV. I. K, E. 15 Car. II. re?.

^ 1 H. Blac. lOj. 4. K, B. and see R. E. 23 Car. I. R. M.

cSeeS Price, 559. n. 1654. § 1. K. B. R. M. 15 Eliz. § 4. R. M.

<i Man. Ex. Append. 270. 1654. § 1 . R. H. 14 Sc 15 Car. II. »eg. 1.

e Stat. 23, Hen. VI. c. 9. R M. 1654. § R. H. 15 & 16 Car. II. C. P.

1. R. K. \5Cur. II. ;r?. 4 K. B.R.M, 1654. S R, M. 1654. ^ 2. K. B. & C. P.
§ 1. R. I!. 14 & 15 Car. II. rtg. 1. R. U.



OF THE OFFICERS OF THE COURTS. 53

sliall be, as tlie case requirotli ; and this as well in case of a late, as
the present siierifT, &,c.'''

Tliere are other oflicers, who may liere be noticed, tliou^h they
are not |)ro[)erly oflicers of the court. These are the oflicers who
attend on the trial of causes at nisi prixis in London and MiduHeaeXf
consistinji^ of the clerk of nisi prius, associate and marshal, crier,
and train-bearer, who are ai)i)ointed by the chief justice ; and tlie
oflicers beloiii^int; to the diflerent circuits, namely, the clerk of assize,
associate, clerk of arraigns, clerk of indictments, judge's marshal,
crier, clerk, steward, and tipstaff".

!* Fcir a more particular acronnt of the Select Committee of I lie House of Coinnioiis
0//7ce./ of tlie Courts, llitir appointment, du- respc^clinjj Courts of Justice, 26 June,
ij'js, and h'.cs, &c. see tjje Report of the 1798.



[ '^^ ]



CHAP. 111.



Of the Admission, Enrolment, Certificates, and
Re-admission of Attornies; their Privileges,
DiSAEiLTiES, and Duties, 7vith the Consequences
of their Misbehaviour.

A N attorney is a person put in the place, stead, or turn of an-
other, to manage his concerns ; and may be either aj)pointed to
prosecute or defend an action'*, or for other purposes''. Before the
statute Westm. II. (13 Edvv. I.) c. 10. the parties to a suit could not
have appeared by attorney, without the king's si)ecial warrant, by
writ or letters patent ; but must have attended the court in person^
By the above and other ancient statutes, a general liberty was given
to the parties, of appearing and prosecuting or defending their suits
by attorney*^; in consequence whereof the increase of attornies was
so great, that several acts of parliament were made to regulate them,
and limit their number^ And, by the statute 3 Jac. 1. c. 7. it was
enacted, that " none should from thenceforth be achnitted attornies,
" in any of the king's courts of record at IVestniinster, but such as
*' had been brought up in the same courts, or otherwise well practised
" in soliciting causes ; and had been found by their dealings to be
" skilful, and of honest dis})ositions." In confiriuation of this statute,
a rule was made in both courts, that none should b ■ admitted an at-
torney therein, unless he should have served, by the space of Jive
years, as a clerk to some judge, serjeant at law, practising counsel,
attorney, clerk, or officer of one of the courts at Westminster ; and
were also, on examination, found of good ability and honesty for
such employments^ And it was then usual to nominate twelve or
more able practisers of the courts yearly, whose business it was to
examine such persons as should desire to be admitted attornies :

a Com.D'is.iit.Jtlorney, A. B. See also t'ne rules of JI. 15 Eliz. § 10. T.

•» Id. C. and see 3 Blac. Com. 25. 24 Eliz. § 9. & H. 14 Jac. I. reg. 2. § 2.

c Co. Lit, 128. a. 2 Inst. 24?. 378. F. N. C. P.

i\. 25. C. Gilb. C. P. 32. '" R. M. 16j4. § 1. K, B. &, C. P. and see

'' Coin. Di-. tit. Allorncij, 15. 5. II. []. S C'./-. I. C. P.

«• 4 Hen. IV. c. 18. 33 IIcii. VI. c. 7.



OP THE ADMISSION, ScC. 65

■vvhich persons were first to attend the prollionotary, with their proof
t)f service, and tlicn to re])uir to the jxTsons appointed to examine
them, and on beinj^ approved, were to he presented to the court and
sworn in, unless some just exception were made as^ainst theaj*. It
was also necessary that attornies shouhl he a(huitted, and reside in or
near some inn of court or chancery, and keep conunons there''.

At length, by the statute 2 (Jeo. II. c. 23. § o. fcunliniicdhy 12
Geo, II. c. 13. § 3. and '22 Geo. II. c. 16. !^ 2. and made perpetual
by 30 Geo. II. c. 19. § 75.) it was eoacted, that *' no person shall be
'* permitted to act as an attorney, or to sue out any writ or process,
" or to commence, carry on, or defend any action or actions, or any
** proceeilinjjs, either before or after judgment obtained, in the name
" or names of any other person or persons, in his majesty's court of
" Kinj^'s Hench, Common Pleas or Exchequer, or dutcliy of Lan-
** caster, or any of his majesty's courts of Great Sessions in IVales,
*' or in any of the courts of the counties palatine of Chester, Lan-
*' caster and Durham, or in any other court of record in that part
" of Great liritain called England, wherein attornies have been
" accustomahly admitted and sworn, unless such person shall have been
" bound, by contract in writing'^, to serve as a clerk, for and during
" the space of Jive years, to an attorney duly and legally sworn and
" admitted according to that act ; and that such person, for and
" during the said term of five years, shall have continued in such
" service'' ; and also unless such person, after the expiration of the
" said term of five years, shall be examined, sworn, admitted, and
*' enrolled, in manner therein mentioned : And that in case any per-
" son, shall in his own name, or in the name of any othei* person, sue
" out any writ or process, or commence, prosecute or defend any
" action or suit, or any proceeding, in any of the courts of law
*' aforesaid, or courts of equity therein mentioned, as an attorney or
" solicitor, for or in expectation of any gain, fee, or reward, without
" being admitted and enrolled as aforesaid, every such person, for
*' every such offence, shall forfeit and p;\y 50/. to the use of the per-
" son uho shall prosecute him for the said ollence : and is there!)y
*' made incapable to maintain or prosecute any action or suit, in any
" court of law or ecjuity, for any fee, reward, or disbursements, on
*' account of prosecuting, carrying on, or defending any such action,

a R. M. 1654. § 4. K. B. & C. P. altornics were admitted l)y tlie court of

•> R. M. U)j4. § l.R. M. 3 Ann. K. B. Common Pleas, uiidc-rspeoiiil circiimsi.nnctc,

U. M. 1(55 K §1.1;. T. 29 Cnr. U. rp-. 1. thon-li tli.y li;id not rei;iilarly served the

R. M. 36 Car. 11. R. M. 4 Ann. C. P. whole term of/Zw yc:us under the original

<^ Append. C!i;ip. HI. § 1. articles: and sec 1 lJo\tl. &: Hyl. 14.

■' But sec '2 Ulae. Rip. "I'j-i. 'JjT. where



56 OF THK ADMISSION

" suit, or proceeding"." By subsequent statutes, it is made penal
for any person to act as an attorney in the county court'', or at any
t^cneral or quarter sessions of the peace*", unless such person shall
have been duly admitted an attorney, and enrolled as aforesaid.

There is a proviso in the above act of parlianaent*^, that " nothing
therein contained shall extend, or be construed to extend, to the ex-
amination, swearing, aflinission or enrolment of the six clerks of the
court of Chancery, or the sworn clerks in their office, or the wailing
clerks belonging to the said six clerks, or the cursitors of the said
court, or of the clerks of the petty bag office, or of the clerks of the
king's coroner and attorney in the court of King's Bench, or of the
filacers of the same court, or of the filacers of the court of Common
Pleas at Westminster^ or of the attornies of the court of the dutchy
chamber of Lancaster, or of the attornies of the court of Exche-
quer at Cheater, or of the attornies of the courts of the lord mayor
and sheriffs of London respectively, for the time being ; but that the
said clerks, filacers, and attornies respectively, should and might be
examined, sworn, admitted, enrolled, and practise in their respective
courts and offices aforesaid, in like manner as they might have been
or done before the making of that act." And, by the statute 49 Geo.
III. c. 28. § 1. " persons having served a clerkship oS Jive years, to
" some of the clerks of the king's coroner and attorney in (he court
*' of King's Bench, who have been regularly admitted as such clerks,
" shall and may be approved, sworn, and admitted to practise, and
" may practise as attornies in the said court of King's Bench, and
" may also practise in any other of the courts of record in the said
'* recited act mentioned, in the name, and with the consent of some
" sworn attorney of such court, such consent to be in writing, and
" signed by such attorney as aforesaid, in like manner as the attornies
*' of such court, or the attornies or clerks of the offices of the king's
*' remembrancer, treasurer's remembrancer, pipe, or office of pleas
" in the court of Exchequer at Westminster, are in and by the said
" act empowered to do^"

Also, by the statute 1 & 2 Geo. IV. c. 48. § 1. (as amended by
the statute 3 Geo. IV. c. 16.) " in case any person, who shall have
" taken the degree of bachelor of arts, or bachelor of law, either
" in the university of Oxford or Cambridge, or in the uiii-
" versity of Dublin, shall, at any time after he shall have taken
" such degree, be bound by contract in writing to serve as a

a 2 Geo. II. c. 23. § 24. and see 3 Krod. "^ 22 Geo. II. c. 46. § 12.

& Biu?. 241. do Geo. ll. c. 23. § 2(5.

*> 12 Geo. II. c. 13. § 7. f Jd § 27.



OP ATTORNIES. 57

*' clerk, for ami during the space of three years, to an attorney or
" solicitor, &c. in some or one of the courts of law or equity in
♦' the therein recited acts of the second, seventh, and twenty-second
" years of the reign of king George the second nientioncil, and
" during the said term of three years shall continue in such service,
*' and (luring the whole time of such three years service, shall
" continue and he actually employed by such attorney or solicitor,
*' or his agent or agents, in the proper business practice or employ-
" ment of an attorney or solicitor, and shall also cause an affidavit,
" or, being one of the peoj)le called Quakers, a solemn affirmation,
** of himself, or of such attorney or solicitor to whom he was bound
** as aforesaid, to be duly made and fded, that he hath actually and
" really so served and been employed, during the said whole term
" of three years, in like manner as is required by the said recited
" acts, with respect to persons thereby required to serve for the
" term o( Jive years, shall and may be qualified to be sworn, or to
" take his solemn affirmation, and to be admitted and enrolled as
" an attorney or solicitor respectively, according to the nature of
" his service, in the several and respective courts of law or equity,
" as fully and effi.'ctually, to all intents and purposes, as any person,
" having been bound, and having served five years, is qualified to be
" sworn, or (o take his solemn aflirmation, and to be admitted or
" cniolled, under or by virtue of the said recited acts, or any other
" act or acts for the regulation of attornies or solicitors in England :
" Provided always, that nothing in this act contained shall extend
" to any person who shall have taken such degree of bachelor of
" arts, unless such person shall have taken such degree within six
" years next after the day when he shall have been first matriculated
" in the said universities respectively ; nor to any j)erson who shall
" have taken such degree of bachelor of law, unless he shall have
" taken the same within eight years after such matriculation ; nor
" to any person, who shall be bound by contract in writing to serve
*' as clerk to an attorney or solicitor, under the j)rovisions of this
*' act, unless such person shall be so bound within Jour years next
" after the day when he shall have taken such degree*."

And, for tin; better preventing unqualified persons from being ad-
mitted attornies and solicitors, and for rendering the said act ol 2
Geo. II. more eflectual, " every person who shall be bound, by con-



Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) → online text (page 12 of 90)