date

14 Feb y 1808 1. No Reporting
14 Feb y 1808

1. No Reporting

1. Analogous Practice

II. In the judicial establishment of England it is without a parallel.

In the Court of Chancery on the Equity side are contained two perfectly distinct judicatories: that of the Lord Chancellor, and that of the Master of the Rolls. In matters of Equity, the field of their jurisdiction has the same limits. Throughout that extent an Appeal has[?] from a decree of the Master of the Rolls to the Lord Chancellor. But the Master of the Rolls where once he enters upon a course ends it: to him it is not allowed to finish a cause or to send it up unfinished to the Lord Chancellor at pleasure.

From the Common Pleas much for /Thus much as to the two/ single-seated judicatories: turn now to the /three/ many-seated, the three four-seated judicatories.

From the Common Pleas under the name of a Writ of Error an appeal [...?] to the King's Bench. But the Judges of the Common Pleas do not report causes to the King's Bench: to them it is not allowed to finish their business, to send it up unfinished as they please.

From the King's Bench a Like appeal [...?] to one of the Exchequer Chambers. No reporting here.

From the Exchequer like appeal to the other Exchequer Chamber: no reporting here.

A few exceptions will on a clear view afford but a confirmation of the general rule.

1. In the Equity side of the Court of chancery, a /the/ sort subordinate Judge called a Master makes what are called Reports to the Chancellor or the Master of the Rolls to whichever of the two the cognizance of the cause has been attributed. True: but to /by/ the Master no decree final or so much as interlocutionary is ever made. Whatsoever business he performs he is bound to perform: he beholds no sort of business which he may choose[?] whether he will do or not do as he pleases: and so thus it is that the grievance coexists.
Similar Items
  • Title: [17 Jan y 1807 Omissa Outer]
    Description: 17 Jan y 1807

    Omissa

    Outer House Appeals &c

    True it is, that, close to those instances of a single stage of Appeal, English practice furnishes other instances of two /and/ or even of three/ stages. But from /by/ this exuberance in one quart, not the slightest proof or presumption that one /the/ stage of Appeal is not /less than/ sufficient for all cases, will be found deducible. No supposition superiority[?] of difficulty in the one class of cases compared with the other - for in both instances a cause of the same class /sort/ travels through the three stages or through only two of them, as it happens. In both instances then the intermediate stage of Appeal is a mere redundance. The Court of Exchequer Chamber is as already stated no only /merely/ a superfluity, but a most pernicious nuisance. The Court of King's Bench, in its character of an intermediate Court of Appeal between the Common Pleas and the House of Lords, is another nuisance of the same kind.

    In Equity the Court of the Lord Chancellor, in its character of an intermediate Court of Appeal between the Court of the Master of the Rolls and the House of Lords, does not certainly to a degree approaching /comparable/ to these others claim the appellation of a nuisance, but still it can not be mentioned as any thing better than superfluous /a superfluity/. Why? - because whether in this case the additional stages shall be travelled through or not depends - not upon the nature of the cause - not upon any extra demand for consideration which one sort of cause can present when compared with another - but upon a circumstance entirely /purely/ foreign and accidental and irrelevent - viz: the will of the plaintiff or rather that of his sollicitor: according as it happens to be the determination of the plff as the suggestion, and under the guidance of his lawyer to have the cause set down to be heard before the Master of the Rolls, or before the Chancellor in the first instance.
  • Title: [10 March 1807 Judicial Justice]
    Description: 10 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecision

    Thus much as to misdecision pro tanto in respect of quantity.

    By the inadequate simplicity of the original scheme Common Law, being alike debarred from recognizing the possibility of misdecision pro tanto in respect of conditionality, hence in any case where to render the decision commensurate to the ends of justice modification in respect of conditionality was requisite, and one amongst so many other proper grounds for the necessity of a recourse to the more unshackled authority of a Court of Equity, proceeding on the ground work of Roman Law.

    When by a Court of Equity a decision is pronounced in favour of the Plaintiff, it may either accede to the demand either purely and simply, or annex to the service rendered to him any conditions that present themselves as suitable to the justice of the individual case.

    When upon and after a definitive decision, pronounced by a Court of Equity, which decision is in that sort of Court called a Decree any change is made by a superordinate Court, whether it be in toto or pro tanto, and if pro tanto, whether in respect of quantity or conditionality, the instrument whereby the correction is administered is either termed, also a Decree, or else an Order: a decree, if administered by any other superordinate Court of Equity than the House of Lords: for example if administered by the Lord High Chancellor, in correction of a Decree framed by the Master of the Rolls: an Order, if administered by the House of Lords.

    In both instances the application whereby such correctionary Decree or Order is prayed, is termed an Appeal.

    In the same case likewise stands the practice of the other Courts of Rome-bred law - the Spiritual Courts, and the Admiralty Courts.
  • Title: [26 Oct r 1807 Eldon's Bill]
    Description: 26 Oct r 1807

    Eldon's Bill

    '.11

    Procedure the same

    Thus inconsiderable being the benefit which it is in the power of the principle of competition to render to the interests of justice on one hand /side/, on the supposition that the two supposed competing Courts are at liberty each of them to frame for itself its own rules, it remains to form an estimate of the benefit of uniformity, that benefit of which to obtain the benefit of competition it would be necessary to make /give up/ a sacrifice.

    For forming any conception of the value of the benefit of uniformity, there is no other mode /resource //method/ than to look for a case in which the opposite disadvantage has been exemplified. In Scotland the unity of the supreme Court being an effectual bar to every such exemplification, England is the country, Westminster Hall the place from which alone any apposite instruction of this kind can be derived unless the eye were to travel as far as France .

    In Westminster Hall, and all-providing though fantastic[?], besides the radical distinction between /Equity and/ Common Law and Equity by which the Court of Chancery is divided /separated/ from the King's Bench and Common Pleas and the Court of Exchequer from itself, the Court of Chancery as compared with the Equity side of the Exchequer, and the Courts of King's Bench and Common Pleas as compared with one another, and with the Common Law side of the Exchequer afford examples /so many exemplifications/ of the existence of diversiformity and of the prejudice /injury/ resulting from it to the interests of justice. The greater /more extensive/ this diversity, the more extensive the empire /demesne/ /field / of [...?] sincere: and the more extensive that demesne /field/, the more grievous the uncognosibility and uncertainty of the law, with the whole mass of fraud /all the frauds/ and oppression that grow out of it.