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1803. Lord CHANCELLOR. (After stating the facts :) I can find Lessee of
no trace of any such writ as this having been issued on an LAWLOR occasion like the present; though there is a form of such a MURRAY.
writ in the register, from whence it might be supposed that
it had issued. But in the present case, I am clearly of Writ improvi. dently issued, opinion that this writ has issued improvidently and ought to the controul of be superseded: if it had been returned, or if it had not gone the court, shall out of the custody of the officer, it must have been quashed; beyond its con- but under the circumstances, I apprehend the regular mode troul, shall be of proceeding is by superseding and not by quashing the
writ; because the writ is beyond the controul of the court when it is delivered into the hands of the party. I shall therefore issue a writ of supersedeas.
The grounds on which I conceive that this writ should be superseded, are two: First, That no officer of this court was warranted in making it out without an order of the court; and secondly, That if any officer was warranted, it was clearly not the cursitor.
The Bill of Exceptions is given by the stat. of Westm. 2. C. 31. 13 Edw. 1. and the writ in question was devised to enforce obedience to that statute: the form of the writ is in the register, and there seems to have been a supposition that every writ that was to be found in the register, was to be issued by the cursitor : this is a great mistake ; there is a great number of writs with which the cursitor has nothing to do. The register is a general collection of writs to be used by the officers of the court, and in the distribution of the business of the court, it is the office of the cursitor to make out writs of different descriptions for the purpose of conducting the ordinary course of proceedings. I believe that, originally, no writs issued but upon a petition to the great seal, stating the circumstances of the case, and
paying a writ in conformity to them; in early times the writ perhaps was not to be found in the register, and then a proper writ" was to be framed: and certainly the person having the custody of the great seal was the person to judge of the proper form of the writ, and according to what we find in the books, the cursitor was an officer not entrusted with the framing of any writ whatever. If a writ were to be framed, the person entitled to frame it in ancient times was the master, and the cursitor only wrote the writ. But by degrees, when a number of writs came to be setttled and adapted to different cases, the cursitor was permitted to issue them without application to the court. Upon communication with persons well informed on this subject in England, I believe that this is the history of the case, and that the cursitor was originally a mere clerk who wrote the writ; and if there was any difficulty, that a special application to the court was necessary.
Even in later times, the writ was often framed with a good deal of attention and care. In the case of Paine v. Sydney, Dyer, 208, a. the writ was framed by the Chancellor “by the advice of the Chief Justices of both “ benches and of the Chief Baron of the Exchequer, "merely because the circumstances differed from those which accorded with the form of the writ on the subject in the register. So, when a new remedy was given by the statute ; the first writ could not be made out by the cursitor: he had nothing by which to make it out; there must have been a special application to the court ; then the writ, when framed, was entered in the r and this would have warranted the cursiteiss
course of proceedings, to decline making out the writ with out the direction of the court.
I perceive an idea has been entertained that no writ which is to issue by special order, is to be made out by any officer except the clerk of the crown ; this is unquestionably a mistake ; whether there be a special order or not, is not the question, but what is the nature of the writ.
Now this is not a writ of such a description as those that are made out by the cursitor: for it is a writ founded on the right of the crown to compel its officers to pay obedience to the statute: it is therefore a sort of prerogative writ, and no such writ was ever made out by the cursitor. The judges to whom it is directed are supposed by the writ to have done wrong: they may obey the writ by sealing the exceptions, or they may make a special return, which must be made to the king in Chancery, and can be made no where else. Now, before they are called upon to do this, ought not some application to take place, as in other cases of the same kind ? If a Mandamus issues from the King's Bench to the lowest court in the country, commanding it to do its duty, it is issued upon a special application, and it would be extraordinary to say that that may be done to the highest court that cannot to the lowest. I think the court of Chancery in granting such a writ as the present, acts as much judicially as the court of King's Bench does in granting a Mandamus.
If the judges make a false return, it is said that an action may be brought against them for such false return, and if it be found to be so, damages will be given, and upon such a recovery a preremptory writcommanding the same. This is said in Bull. N. P. 316, though Mr. J. BULLER does not
give any very distinct authority; but I suppose it to be the result of his investigation: now, before such high officers as the judges are put into this situation, surely it is the duty of this court to inquire whether justice requires it.
Lessee of LAWLOR
The authorities in support of this opinion are few, because the writ itself has rarely been used: it has rarely been necessary to resort to it, as the judges would be most likely to seal the exceptions in any case where they ought. There are only two authorities which I have been able to find with the assistance I have had here and in England, which was not inconsiderable.
They are, Lilly's Prac. Reg. 232, and 1 Vern. 175. Lilly states, that if the judge refuses to seal the bill of exceptions, “ then, upon a petition to the Lord Chancellor, he will grant a writ.” It might be too much to quote this book as an authority in matter of law, but in a matter of practice, I think it is a sort of authority: the compiler of that book did not conceive this to be a writ, that should issue of course ; this is some ground for holding that if according to reason, it ought not to issue of course, in point of practice it does not issue of course. In the case in Vernon, a motion was made to the Lord Keeper to grant a mandatory writ to the Chief Justice of the King's Bench to command him to sign a bill of exceptions ; now in that case, if it were conceived that the writ issued of course, the party had only to go to the cursitor and get the writ. It is clear that at that time the officer conceived he had no right to make out such a writ without the order of the court: and in that case it is called a Mandatory writ, as it unquestionably is.
1808. I am clear therefore that this writ is a writ which is not Lessee of
to be made out by the cursitor: if it is to be made out at LAWLOR all, it is by the clerk of the crown, who is the officer authoMURRAY.
rized by the constitution of this court to make out writs of
this description; the return to it must be filed in his office. The writ conmanding judg. So that beyond all question the writ in this case has been es to affix their seals to a bill of made out by an officer not warranted to make it out at exceptions is
all ; and no officer was warranted to make it out without a not to be made out by the cur. special application to the court. I am therefore of opinion sitor, but by
that this writ ought to be superseded, and I shall give dithe clerk of the crown. rections accordingly. No officer war. ranted to make it out without But I have considered this subject, and perhaps it may be the special or der of the useful to the parties to state what has occurred to me with court.
respect to the propriety of granting the writ, not holding myself bound, if on more solemn investigation I should be wrong. Counsel has stated the ground on which he relies, and has taken a great deal of pains and found every thing that is to be found on the subject. The facts stated to me are, that after verdict and judgment in ejectment, a writ of error brought, and the record transmitted to the court of Error, the judges of the King's Bench allowed an amendment in the record. I believe this statement was not quite correct. I believe the record had not been transmitted ; however, take it so. It is contended that the judges of the King's Bench had no power to amend the record, and that the party injured by such amendment had no means of trying whether they had done wrong or not, and of bringing the question before the court of Error, but by a bill of exceptions : on the other side the proper mode is said to be by alleging diminution and praying a certiorari and that upon the return the party would have a right to have the original record sent to the court of Error.