Court of Chancery of the County Palatine of Durham and Sadberge

Even before the Norman Conquest the Bishops of Durham appear to have claimed palatinate or quasi-palatinate rights and jurisdiction. This prescriptive franchise was confirmed by charters of William the Conqueror, William Rufus, Henry I and Henry II.4 Co Inst 216. See also Bishop William de St Carileph's charter to convent of Durham (1082); Registrum Palatinum Dunelmense, Vol I, pp lxvi to lxviii. See also Williamson, Palatine Court of Durham Act 1889, pp 3 to 14. In the reign of Edward I, Anthony Bek, the then Bishop was summoned to appear before the King's Justices under the Statute of Quo Warranto (18 Edw. 1)Statute "De quo Warranto" (1289 to 1290) to show how he held his franchise, and on his refusal to appear his franchise was seized into the King's hands in the name of distress. The Bishop appealed to the King and his council in Parliament, who held that he was entitled to jura regalia between Tyne and Tees, and in Norhamshire and Bedlington. In 1836 the jura regalia of the Bishop of Durham were transferred to the Crown by the Durham (County Palatine) Act 1836 (6 & 7 Will. 4. c. 19).{{efn|The jurisdiction of the Chancery Court and the Court of Pleas were not altered by this Act. The jurisdiction of the Court of Pleas was transferred to the High Court by the Judicature Act 1873 (36 & 37 Vict. c. 66), s 16.}} The last one surviving was the Court of Chancery of the County Palatine of Durham, the exercise of the jurisdiction being assimilated to that of the High Court of Justice by the Palatine Court of Durham Act 1889 (52 & 53 Vict. c. 47)Halsbury's Laws of England, First Edition, 1909, vol 9, pp 124 & 125, para 263

The jurisdiction of the court was unlimited in amount, but limited in area to the county palatine which, as of 1909, certainly included the whole of what was then the county of Durham, and possibly other districts.Halsbury's Laws of England, First Edition, 1909, vol 9, p 125, para 264 The Durham (County Palatine) Act 1836 (6 & 7 Will. 4. c. 19), defined "county of Durham" as "including the detached parts of Craikshire, Bedlingtonshire, Norhamshire, Allertonshire, and Islandshire, and all other places heretofore within the jurisdiction of the Bishop of Durham, in right of the said county palatine." By 1909 it had not been decided what the effect upon this was of the enactment of the Counties (Detached Parts) Act 1844 (7 & 8 Vict. c. 61), annexing detached parts of counties to the county of which it formed part for the purposes of parliamentary elections. The First Edition of Halsbury's Laws of England, however, suggested that an Act of this nature would not affect the jura regalia without express enactment. The Palatine Court of Durham Act 1889 (52 & 53 Vict. c. 47) did not define the area over which the court had jurisdiction.Halsbury's Laws of England, First Edition, 1909, vol 9, p 125, footnote i.

The jurisdiction apart from statute was the old jurisdiction of the High Court of Chancery within the county palatine. This was a jurisdiction in personam over the person within the area of jurisdiction, extending, in effect, to property wherever situate,Re Longendale Cotton Spinning Co (1878) 8 Ch D 150 but enforceable only, apart from statute, against the person, and not the property. This jurisdiction was supplemented by statutes enabling orders of the Palatine Court to be enforced by making them orders of the High Court of Justice,The Palatine Court of Durham Act 1889 (52 & 53 Vict. c. 47), s 3 empowering the court to deal with the property of infants and other persons under disability, the administration of assets,The Palatine Court of Durham Act 1889 (52 & 53 Vict. c. 47), s 6.{{efn|The powers conferred on the court by this enactment were under the following statutes:Halsbury's Laws of England, First Edition, 1909, vol 9, pp 125 & 126, footnote m.{{ubl|Real property of infants: The Debts Recovery Act 1830 (11 Geo. 4. & 1 Will. 4. c. 47), s 11; the Infants' Property Act 1830 (11 Geo. 4. & 1 Will. 4. c. 65), ss 16 & 17; the Debts Recovery Act 1839 (2 & 3 Vict. c 60); the Land Drainage Act 1845 (8 & 9 Vict. c. 56), ss 3 to 5; the Partition Act 1868 (31 & 32 Vict. c. 40), s 3 (see, however, s 6 of the Partition Act 1876 (39 & 40 Vict. c. 17), s 6); the Settled Estates Act 1877 (40 & 41 Vict. c 18), ss 4, 10 & 49; the Conveyancing and Law of Property Act 1881 (44 & 45 Vict. c. 41), ss 41 & 42; and the Settled Land Act 1882 (45 & 46 Vict. c 38), ss 59 & 60.|Personal property of infants: The Legacy Duty Act 1796 (36 Geo. 3. c. 52), s 32; and the Trustee Act 1893 (56 & 57 Vict. c. 53), ss 26 & 28.|Marriage settlements of infants: The Infant Settlements Act 1855 (18 & 19 Vict. c. 43).|Maintenance of infants: The Infants' Property Act 1830 (11 Geo. 4. & 1 Will. 4. c. 65), s 32.|Property of felons: The Forfeiture Act 1870 (33 & 34 Vict. c. 23), s 28.|Investment of moneys of persons under disability: The Copyhold Acts 1841, 1843 and 1852 (4 & 5 Vict. c. 35, s 73; 6 & 7 Vict. c. 23, s 14; 15 & 16 Vict. c. 51, ss 22 & 39), which were repealed and contained in the Copyhold Act 1894 (57 & 58 Vict. c. 46); the Defence Acts 1842 and 1860 (5 & 6 Vict. c. 94, s 25; 23 & 24 Vict. c. 112, s 20); the Ecclesiastical Houses of Residence Act 1842 (5 & 6 Vict. c. 26); the Housing of the Working Classes Act 1890 (53 & 54 Vict. c. 70), s 20 & Sch, r 20; the Lands Clauses Consolidation Act 1845 (8 & 9 Vict. c. 18), s 69.|Administration of assets: Judicature Act 1873 (36 & 37 Vict. c. 66), ss 16 & 34; the Judicature Act 1875 (38 & 39 Vict. c. 77), s 10; the Bankruptcy Act 1883 (46 & 47 Vict. c. 52), s 125.}}}} giving to it the summary jurisdiction of the High Court,The Palatine Court of Durham Act 1889 (52 & 53 Vict. c 47), s 7.{{efn|The powers conferred on the court by this section were under the following statutes:Halsbury's Laws of England, First Edition, 1909, vol 9, p 126, footnote n.{{ubl|The Cestui que vie Act 1707 (6 Ann. c. 72), s 1;|the Law of Property Amendment Acts 1859 and 1860 (22 & 23 Vict. c. 35; 23 & 24 Vict. c. 38);|the Marriage Act 1823 (4 Geo. 4. c. 72), s 17;|the Custody of Infants Act 1873 (36 & 37 Vict. c 12), s 1;|the Guardianship of Infants Act 1886 (49 & 50 Vict. c. 27);|the Companies Acts 1862 and 1867 (25 & 26 Vict. c. 89; 30 & 31 Vict. c. 131), subsequently the Companies (Consolidation) Act 1908 (8 Edw. 7. c. 69);|the Mortgage Debenture Acts 1865 and 1870 (28 & 29 Vict. c. 78; 33 & 34 Vict. c. 20);|the Railway Companies Act 1867 (30 & 31 Vict. c. 127);|the Life Assurance Companies Acts 1870 to 1872 (33 & 34 Vict. c. 61; 34 & 35 Vict. c 58; 35 & 36 Vict. c 41);|the Land Clauses Consolidation Acts 1845 and 1860 (8 & 9 Vict. c. 18, 23 & 24 Vict. c. 106);|the Public Money Drainage Act 1846 (9 & 10 Vict. c. 101);|the Improvement of Land Act 1864 (27 & 28 Vict. c 114), s 21;| the Fines and Recoveries Act 1833 (3 & 4 Will. 4. c 74), s 48;|the Declaration of Title Act 1862 (25 & 26 Vict. c. 67);|the Land Registry Act 1862 (25 & 26 Vict. c. 53);|the Judgments Act 1864 (27 & 28 Vict. c. 112);|the Vendor and Purchaser Act 1874 (37 & 38 Vict. c. 78), s 9;|the Married Women's Property Act 1882 (45 & 46 Vict. c. 75), ss 10 & 17;|the Land Tax Redemption Act 1802 (42 Geo. 3. c. 116);|the Local Loans Act 1875 (38 & 39 Vict. c. 83);|the Customs Consolidation Act 1876 (39 & 40 Vict. c. 36), s 45;|the Arbitration Act 1889 (52 & 53 Vict. c. 49)}}}} and the High Court jurisdictionThe Palatine Court of Durham Act 1889 (52 & 53 Vict. c. 47), s 9. under the Charitable Trusts Acts 1853 to 1869,16 & 17 Vict. c. 137; 18 & 19 Vict. c. 124; 23 & 24 Vict. c. 136; 25 & 26 Vict. c. 112; 32 & 33 Vict. c. 110. The court had also inherent jurisdiction to control charitable trusts, but this jurisdiction was only exercisable by information in the name of the Attorney General. Halsbury's Laws of England, First Edition, 1909, vol 9, p 126, footnote p. and also the jurisdictionThe Palatine Court of Durham Act 1889 (52 & 53 Vict. c. 47), s 10. under the Partition Acts 186831 & 32 Vict. c. 40 and 1876,39 & 40 Vict. c. 17 the Settled Estates Act 1877 (40 & 41 Vict. c. 18), the Conveyancing Act 1881 (44 & 45 Vict. c. 41), and the Settled Land Acts 188245 & 46 Vict. c. 38 and 1884.47 & 48 Vict. c. 18 There was also jurisdiction under section 46 of the Trustee Act 1893 (56 & 57 Vict. c. 53), and section 2 of the Judicial Trustee Act 1896 (59 & 60 Vict. c. 35). The jurisdiction was concurrent with that of the High Court of Justice.Halsbury's Laws of England, First Edition, 1909, vol 9, pp 52 and 126, footnote f.Halsbury's Laws of England, First Edition, 1909, vol 9, pp 125 & 126, para 264 and footnotes i to f.

Transfer of jurisdiction

Nothing contained in section 1 of the Durham (County Palatine) Act 1836 prejudiced or affected the jurisdiction of this court.The Durham (County Palatine) Act 1836, proviso to section 1

The Chancellor of the County Palatine of Durham was the sole judge of the court. He was appointed by warrant under the royal sign manual.See London Gazette, 31 October 1905, p 7248Halsbury's Laws of England, First Edition, 1909, vol 9, p 126, para 265

The Chancellor had a prescriptive power to regulate the procedure of his court, and further, with the concurrence of the Lord Chancellor, power to adapt and modify the Rules of the Supreme Court to the Palatine Court.The Palatine Court of Durham Act 1889 (52 & 53 Vict c 47), s 1 The Chancellor had jurisdiction to hear interlocutory matters out of the jurisdiction.The Palatine Court of Durham Act 1889 (52 & 53 Vict c 47), s 4 In case of any person who had entered an appearance, or come in, or otherwise submitted to the jurisdiction of the court, the Chancellor could, upon special application, make an order for service of process on him out of the jurisdiction.The Palatine Court of Durham Act 1889 (52 & 53 Vict c 47), s 2 The service of subpoenas on witnesses out of the jurisdiction was valid.The Palatine Court of Durham Act 1889 (52 & 53 Vict c 47), s 5Halsbury's Laws of England, First Edition, 1909, vol 9, p 127, para 266

Rules

(A) "Orders to be observed in the Chancery at Durham" were General Orders dated 8 October 1596 (38 Eliz 1). (B) "Orders for the better expedition, and more perfect and exact proceedings in the Suits in the Chancery, at Durham" were General Orders dated 1610, signed by W Duresme and Richard Hutton, and done at the Chancery of Durham "Fra. Goodrick, Canc". (C) "Orders revived, and established in the Court of Chancery, at Durham, in open Court" were General Orders dated 29 August 1676 (28 Car 2) and signed by Jo Otway. (D) "Orders relating to the Practice not, or but few of them, in the preceding Tables, but ordered by the Court to be observed" were General Orders dated 22 October 1684 (36 Car 2).The Practice of the Court of Chancery of the County Palatine of Durham. James Graham. Sunderland. 1807. Pages [https://books.google.com/books?id=MUpfAAAAcAAJ&pg=PR9 i] and ii.

General Orders and Rules of the Court of Chancery at Durham were made by the Chancellor on 15 June 1853. He also made an order appointing George Walker to print an publish these Rules and Orders, whereupon they were printed and published by Walker.General Orders and Rules of the Court of Chancery at Durham. George Walker. Sadler Street, Durham. 1853. [Orders of 15 June 1853]. [https://books.google.com/books?id=2pIOAAAAYAAJ Google Books]

The Chancery of Durham Rules 1889 were made by the Chancellor on 1 February 1889, and were amended by rules made on 6 July 1889. An order as to court fees and another as to solicitor's costs were also made by the Chancellor on 1 February 1889. These rules, which were adapted from the Rules of the Supreme Court, were printed and put on sale. They were made under the Chancellor's prescriptive power, and not under the powers conferred by section 1 of the Palatine Court of Durham Act 1889.Halsbury's Laws of England, First Edition, 1909, vol 9, p 127, para 267 and footnote m

In 1952, the Chancery of Durham Rules 1889 were accused by a working party of the Committee on Supreme Court Practice and Procedure of being archaic and difficult, if not impossible, for practitioners to obtain for use in their own offices."Report of the Working Party appointed to consider the Durham Palatine Court", Schedule to the Third Interim Report of the Committee on Supreme Court Practice and Procedure (1952) (Cmd 8617) (Evershed Committee), 16 Papers by command 58 (HMSO) [https://books.google.com/books?id=pFYPAQAAIAAJ]. This command paper is reported and discussed at (1952) 214 Law Times 136 [https://books.google.com/books?id=C_MwAQAAIAAJ], (1952) 71 Law Notes 226 [https://books.google.com/books?id=3INQAQAAIAAJ], and "The Durham Palatine Court" (1952) 127 The Accountant 272 (6 September) [https://books.google.com/books?id=G-wWAQAAMAAJ].

Appeal

There was an appeal to the Court of Appeal, and thence to the House of Lords.The Palatine Court of Durham Act 1889 (52 & 53 Vict c 47), s 11. The change that this enactment made in the appeal was to substitute an appeal in the first instance to the Court of Appeal for an appeal direct to the House of Lords. Halsbury's Laws of England, First Edition, 1909, vol 9, p 127, footnote n.

Up to at least 1909,Halsbury's Laws of England, First Edition, 1909, vol 9, p 127, para 269 there was an Attorney General, a Solicitor General, a conveyancing counsel, and a registrar of the court, who was appointed by the Chancellor and exercised the functions of a Master of the Supreme Court (Chancery DivisionThe Chancery of Durham Rules 1889, Ord 46 and Taxing Office)The Chancery of Durham Rules 1889, Ord 50, r 11 and of a Chancery Registrar etc. He also had the custody of documents etc.The Chancery of Durham Rules 1889, Preliminary Order There was an appeal from the Registrar to the Chancellor.The Chancery of Durham Rules 1889, Ord 46, r 105

Cursitor

The office of cursitor of chancery in the palatine of Durham was abolished by section 1 of the Durham Chancery Act 1869 (32 & 33 Vict c 84), which transferred the duties of that office to the registrar of the court.

The court was regulated by, in particular, the Palatine Court of Durham Act 1889 (52 & 53 Vict c 47). That Act was repealed by section 56 of, and Schedule 11 to, the Courts Act 1971.

Evidence of foreign law

See sections 4(2) and 4(4)(a) and (b) of the Civil Evidence Act 1972.

Reciprocal enforcement of foreign judgments

See article 2(1)(a) of the Convention set out in the [http://www.legislation.gov.uk/uksi/1971/1039/schedule/made Schedule] to the Reciprocal Enforcement of Foreign Judgments (Israel) Order 1971 (S.I. 1971/1039).

See article 2(1)(a) of the Convention set out in the [http://www.legislation.gov.uk/uksi/1969/1063/schedule/made Schedule] to the Reciprocal Enforcement of Foreign Judgments (the Netherlands) Order 1969 (S.I. 1969/1063)

See article 2(1)(a) of the Convention set out in the [http://www.legislation.gov.uk/uksi/1962/636/schedule/made Schedule] to the Reciprocal Enforcement of Foreign Judgments (Norway) Order 1962 (S.I. 1962/636)

Power to authorise superior landlord to enter and execute works

See [http://www.legislation.gov.uk/ukpga/1919/35/section/30/enacted section 30(3)] of the Housing, Town Planning, &c. Act 1919.

Power of court to authorise examination of works on unfit premises or for improvement

See [http://www.legislation.gov.uk/ukpga/1957/56/section/164/enacted section 164(3)] of the Housing Act 1957.

Land Charges Act 1925

See [http://www.legislation.gov.uk/ukpga/1925/22/section/20/enacted section 20(2)] of that Act.

The Courts Act 1971 states: "On the appointed day ... the Court of Chancery of the County Palatine of Durham and Sadberge ... shall be merged with the High Court. Accordingly on and after that day no jurisdiction, whether conferred by statute or otherwise, could be exercised, or can now be exercised, by the Palatine Courts as such."The Courts Act 1971, section 41(1) The Court of Chancery of the County Palatine of Durham and Sadberge was abolished on merger with the High Court.The Courts Act 1971, section 57(3)(b)

Transitional provisions were contained in Part I of Schedule 5 to the Courts Act 1971.

Any judicial or other office in the Court of Chancery of the County Palatine of Durham and Sadberge was abolished by section 44(1)(b) of the Courts Act 1971.

Section 44(2) conferred a power to make regulations to provide for the compensation of persons who suffered loss of employment or loss or diminution of emoluments attributable to the effect of section 44(1)(b) or to the merger of the Court of Chancery of the County Palatine of Durham and Sadberge.

• Court of equity
• Courts of the County Palatine of Durham

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• Halsbury's Laws of England, First Edition, Butterworth & Co, London, (Agents for Canada: Canada Law Book Company, Toronto), 1909, Volume 9, paragraphs 263 to 269, at pages 124 to 127.
• The Practice of the Court of Chancery of the County Palatine of Durham. James Graham. Sunderland. 1807. [https://books.google.com/books?id=MUpfAAAAcAAJ&pg=PA1 Google Books]
• Thomas Colpitts Granger. The Practice and Procedure of the Court of Chancery at Durham, with the Orders and Rules, etc. C Thwaites. 1882. [https://www.worldcat.org/oclc/34645004 WorldCat]
• General Orders and Rules of the Court of Chancery at Durham. George Walker. Sadler Street, Durham. 1853. [Orders of 15 June 1853]. [https://books.google.com/books?id=2pIOAAAAYAAJ Google Books]
• O Hood Phillips. "2. The Chancery Courts of Lancaster and Durham". A First Book of English Law. Fourth Edition. Sweet and Maxwell. 1960. Pages 74 and 75.
• Renton. "Durham, County Palatine of". Encyclopædia of the Laws of England with Forms and Precedents by the Most Eminent Legal Authorities. Sweet & Maxwell. 1907. Volume 5. Page [https://archive.org/stream/encyclopaediaofl05jacouoft#page/29/mode/1up 29] et seq. [https://books.google.com/books?id=ZWRHAAAAYAAJ Google Books]

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Category:Former courts and tribunals in England and Wales

Category:Legal history of England

Category:Courts of equity

Category:History of County Durham

Category:1872 disestablishments in England

Category:Courts and tribunals disestablished in 1972