Court of King's Bench (England) - History - Reform

Reform

During the 15th century, the traditional superiority of the common law courts was challenged by ecclesiastical courts and the equitable jurisdiction of the Lord Chancellor, exercised through the Court of Chancery. These courts were more attractive to the common lawyers because of their informality and the simple method used to arrest defendants. The bills of complaint and subpoena used by the Chancery made court procedure far faster, and from 1460 to 1540 there was a steep decline in the number of cases in the common law courts, coinciding with a sharp increase in cases in the newer courts. This loss of business was quickly recognised by the King's Bench, which was urged by Fairfax J in 1501 to develop new remedies so that "subpoenas would not be used as often as they are at present". From 1500 the King's Bench began reforming to increase its business and jurisdiction, with the tide finally turning in their favour by 1550.

The recovery of the King's Bench was thanks to its use of Chancery-like procedure; centrally, the system of bills. Prior to this, a writ would have to be issued, with different writs depending on the issue. If A wished to sue B for trespass, debt and detinue, the court would have to issue an individual writ for each action, with associated time delays and costs for A, and then ensure that B appeared in court. Bills, on the other hand, were traditionally used against court officials and the court's prisoners; as such, the defendant was assumed to already be in the court's custody and presence in court was not needed. Thus a legal fiction arose; if A wished to sue B for trespass, debt and detinue, he would have a writ issued for trespass. B would be arrested as a result, and the covenant, detinue and debt actions undertaken by bill after he had been detained. Eventually it became even more fictitious; if A wished to sue B merely for debt and detinue, a trespass writ would be obtained and then quietly dismissed when B was detained in custody. This was originally undertaken through getting a writ of trespass from the Chancery, but eventually a shorter workaround was used; since the King's Bench retained criminal jurisdiction over Middlesex, the trespass (which was fictitious anyway) would be said to have occurred there, allowing the King's Bench to issue a bill of arrest on its own. This became known as the Bill of Middlesex, and undermined the jurisdiction of the Court of Common Pleas, which would normally deal with such civil cases.

The advantages to this method were that bills were substantially cheaper, and unlike writs did not tie the plaintiff down; once the case came to court the bill could be amended to include any action or actions the plaintiff wanted to enforce. In addition, by avoiding the Chancery writ, the case was substantially cheaper. The result of this was substantial; between 1560 and 1640, the King's Bench's business rose tenfold. This period also saw a substantial broadening of the remedies available in the common law. The main remedy and method was action on the case, which justices expanded to encompass other things. In 1499 it enabled the enforcement of parol promises, which rendered Chancery subpoenas obsolete; later developments included the recovery of debts, suing for defamatory words (previously an ecclesiastical matter) and action on the case for trover and conversion. Most of this reform took place under Fineux CJ, who never lived to see the results of his work; it took over 100 years for the reforms to fully reverse the decline in business.