as well in controversies where causes are depending, as in those where no action is brought: enacting, by statute 9 & 10 W. III. c. 15. that all merchants and others, who desire to end any controversy, suit, or quarrel (for which there is no other remedy but by personal action or suit in equity), may agree, that their submission of the suit to arbitration or umpirage shall be made a rule of any of the king's courts of record, and may insert such agreement in their submission, or promise, or condition of the arbitration-bond : which agreement being proved upon oath by one of the witnesses thereto, the court shall make a rule that such submission and award shall be conclusive: and, after such rule made, the parties disobeying the award shall be liable to be punished, as for a contempt of the court; unless such award shall be set aside, for corruption or other misbehaviour in the arbitrators or umpire, proved on oath to the court, within one term after the award is made (46). And, in consequence of this statute, it is now become a considerable part of the business of the superior courts, to set aside such awards when partially or illegally made; or to enforce their execution, when legal, by the same process of contempt, as is awarded for disobedience to those rules and orders, which are issued by the courts them- / selves.

CHAPTER II.

OF REDRESS BY THE MERE OPERATION OF LAW.

THE remedies for private wrongs, which are effected by the mere operation of the law, will fall within a very narrow compass; there being only two instances of this sort that at present occur to my recollection: the one that of retainer, where a creditor is made executor or administrator to his debtor; the other, in the case of what the law calls a remitter.

I. If a person indebted to another makes his creditor or debtee his executor, or if such a creditor obtains letters of administration to his debtor; in these cases the law gives him a remedy for his debt, by allowing him to retain so much as will pay himself, before any other creditors whose debts are of equal degree (a) (1). This is a remedy by the mere act of law, and grounded upon this reason; that the executor cannot, without an apparent absurdity, commence a suit against himself as a representative of the deceased, to recover that which is due to him in his own private capacity: but, having the whole personal estate in his hands, so much as is sufficient to answer his own demand is, by operation of law, applied to that particular purpose. Else, by being made executor, [*19] *he would be put in a worse condition than all the rest of the

(a) 1 Roll. Abr. 922, Plowd. 543. See Book II. page 511.

(46) 2 R. S. 541, &c.

(1) Toller, 4 ed. 295. 298. So if a creditor be made a co-executor. 1 B. & P. 630. The same law as to an administrator, 8 T, R. 407. or heir. 2 Vern. 62. So if a debtor be made executor of creditor, it is a release at

law. Ante, 2 book, 512. Plowd. 184. Salk. 299.

But now, in New-York, executors or administrators cannot retain in preference to other debts of equal degree (2R. S. 88, § 33), nor does the appointment of a debtor as executor release the debt. (Id. 84, § 13.)

world besides. For, though a rateable payment of all the debts of the deceased, in equal degree, is clearly the most equitable method, yet as every scheme for a proportionable distribution of the assets among all the creditors hath been hitherto found to be impracticable, and productive of more mischiefs than it would remedy; so that the creditor who first commences his suit is entitled to a preference in payment; it follows, that as the executor can commence no suit, he must be paid the last of any, and of course must lose his debt, in case the estate of his testator should prove insolvent, unless he be allowed to retain it. The doctrine of retainer is therefore the necessary consequence of that other doctrine of the law, the priority of such creditor who first commences his action. But the executor shall not retain his own debt, in prejudice to those of a higher degree; for the law only puts him in the same situation, as if he had sued himself as executor, and recovered his debt; which he never could be supposed to have done, while debts of a higher nature subsisted. Neither shall one executor be allowed to retain his own debt, in prejudice to that of his co-executor in equal degree; but both shall be discharged in proportion (b). Nor shall an executor of his own wrong be in any case permitted to retain (c).

II. Remitter (2) is where he, who hath the true property or jus proprietatis in lands, but is out of possession thereof, and hath no right to enter without recovering possession in an action, hath afterwards the freehold cast upon him by some subsequent, and of course defective, title; in this case he is remitted, or sent back by operation of law, to his ancient and more certain title (d) (3). The right of entry, which he hath gained by a bad title, shall be ipso facto annexed to his own inherent good one: and his defeasible estate shall be utterly defeated and annulled, by the instantaneous act of law, without his participation or consent (e). As if A disseises B, that *is, turns him out of possession, and dies, leaving a [*20] son C; hereby the estate descends to C the son of A, and Bis barred from entering thereon till he proves his right in an action: now, if afterwards C, the heir of the disseisor, makes a lease for life to D, with remainder to B the disseisee for life, and D dies; hereby the remainder accrues to B, the disseisee: who thus gaining a new freehold by virtue of the remainder, which is a bad title, is by act of law remitted, or in of his former and surer estate (f). For he hath hereby gained a new right of possession, to which the law immediately annexes his ancient right of property.

If the subsequent estate, or right of possession, be gained by a man's own act or consent, as by immediate purchase being of full age, he shall not be remitted. For the taking such subsequent estate was his own folly, and shall be looked upon as a waver of his prior right (g). Therefore it is to be observed, that to every remitter there are regularly these incidents; an ancient right, and a new defeasible estate of freehold, uniting in one and the same person; which defeasible estate must be cast upon the tenant, not gained by his own act or folly. The reason given by Littleton (h), why this remedy, which operates silently, and by the mere act of

(b) Viner. Abr. t. executors, D. 2.

(c) 5 Rep. 30.

(d) Litt. 659.

(e) Co. Litt. 358. Cro. Jac. 489.

(2) For law of remitter in general, see 18 Vin. Ab. tit. "Remitter." Co. Litt. 347, n.

(f) Finch. L. 194. Litt. § 683.
(g) Co. Litt. 348. 350.
(h) 661.

(3) And this if part of the estate came to him by such a defeasible title. Litt. 662, 663.

law, was allowed, is somewhat similar to that given in the preceding artí cle; because otherwise he who hath right would be deprived of all remedy. For as he himself is the person in possession of the freehold, there is no other person against whom he can bring an action, to establish his prior right (4). And for this cause the law doth adjudge him in by remitter; that is, in such plight as if he had lawfully recovered the same land by suit. For, as lord Bacon observes (i), the benignity of the law is such, as when, to preserve the principles and grounds of law, it depriveth a man of his remedy without his own fault, it will rather put him in a better degree

and condition than in a worse. Nam quod remedio destituitur, ipsa [*21] re valet, si culpa absit. But there shall be no *remitter to a right,

for which the party has no remedy by action (k): as if the issue in tail be barred by the fine or warranty of his ancestor, and the freehold is afterwards cast upon him; he shall not be remitted to his estate tail (1): for the operation of the remitter is exactly the same, after the union of the two rights, as that of a real action would have been before it. As therefore the issue in tail could not by any action have recovered his ancient estate, he shall not recover it by remitter.

And thus much for these extrajudicial remedies, as well for real as personal injuries, which are furnished or permitted by the law, where the parties are so peculiarly circumstanced, as not to make it eligible, or in some cases even possible, to apply for redress in the usual and ordinary methods to the courts of public justice.

CHAPTER III.

• OF COURTS IN GENERAL (1).

THE next, and principal, object of our inquiries is the redress of injuries by suit in courts: wherein the act of the parties and the act of law cooperate; the act of the parties being necessary to set the law in motion, and the process of the law being in general the only instrument by which the parties are enabled to procure a certain and adequate redress.

And here it will not be improper to observe, that although in the several cases of redress by the act of the parties mentioned in a former chapter (à), the law allows an extrajudicial remedy, yet that does not exclude the ordinary course of justice: but it is only an additional weapon put into the hands of certain persons in particular instances, where natural equity or the peculiar circumstances of their situation required a more expeditious remedy, than the formal process of any court of judicature can furnish. Therefore, though I may defend myself, or relations, from external violence, I yet am afterwards entitled to an action of assault and battery: though I may retake my goods, if I have a fair and peaceable opportunity, this power of recaption does not debar me from my action of trover or de

(i) Elem. c. 9.

(k) Co. Litt. 349.

(4) See post 190. for the advantages of this law of remitter.

(1) As to courts in general, and the several

(1) Moor. 115. 1 Ann. 186.
(a) Ch. 1.

courts, see Com. Dig. Courts; Bac. Ab.
Courts; Vin. Ab. Courts.

tinue: I may either enter on the lands, on which I have a right of entry, or may demand possession by a real action: I may either abate a nusance by my own authority, or call upon the law to do it for me: I may distrein for rent, or have an action of debt, at my own *option : if [*23] I do not distrein my neighbour's cattle damage-feasant, I may compel him by action of trespass to make me a fair satisfaction; if a heriot, or a deodand, be withheld from me by fraud or force, I may recover it though I never seised it. And with regard to accords and arbitrations, these, in their nature being merely an agreement or compromise, most indisputably suppose a previous right of obtaining redress some other way; which is given up by such agreement. But as to remedies by the mere operation of law, those are indeed given, because no remedy can be ministered by suit or action, without running into the palpable absurdity of a man's bringing an action against himself: the two cases wherein they happen being such, wherein the only possible legal remedy would be directed against the very person himself who seeks relief.

In all other cases it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded. And in treating of these remedies by suit in courts, I shall pursue the following method: first, I shall consider the nature and several species of courts of justice; and, secondly, I shall point out in which of these courts, and in what manner, the proper remedy may be had for any private injury; or, in other words, what injuries are cognizable, and how redressed, in each respective species of courts.

First, then, of courts of justice. And herein we will consider, first, their nature and incidents in general; and then, the several species of them, erected and acknowledged by the laws of England.

A court is defined to be a place wherein justice is judicially administered (6). And, as by our excellent constitution the sole executive power of the laws is vested in the person of the king, it will follow that all courts of justice, which are *the medium by which he admi- [*24] nisters the laws, are derived from the power of the crown (c). For, whether created by act of parliament, or letters patent, or subsisting by prescription (the only methods by which any court of judicature (d) can exist), the king's consent in the two former is expressly, and in the latter impliedly, given. In all these courts the king is supposed in contemplation of law to be always present; but as that is in fact impossible, he is there represented by his judges, whose power is only an emanation of the royal prerogative.

For the more speedy, universal, and impartial administration of justice between subject and subject, the law hath appointed a prodigious variety of courts, some with a more limited, others with a more extensive jurisdiction; some constituted to inquire only, others to hear and determine; some to determine in the first instance, others upon appeal and by way of review. All these in their turns will be taken notice of in their respective places: and I shall therefore here only mention one distinction, that runs hroughout them all; viz. that some of them are courts of record, others not of record. A court of record is that, where the acts and judicial proceedings are enrolled in parchment (2) for a perpetual memorial and testi

(b) Co. Litt. 58.
(c) See book I. ch. 27.

(d) Co. Litt. 260.

(2) In New-York they may be on paper or parchment. 2 R. S. 275, § 9.

VOL. II.

6

mony: which rolls are called the records of the court, and are of such high and super-eminent authority, that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary (e) (3). And if the existence of a record be denied, it shall be tried by nothing but itself: that is, upon bare inspection whether there be any such record or no; else there would be no end of disputes (4). But, if there appear any mistake of the clerk in making up such record, the court will direct him to amend it. All courts of record are the king's courts, in right

of his crown and royal dignity (f), and therefore no other court [*25] hath authority to fine or imprison; so that the very erection *of a

new jurisdiction with the power of fine or imprisonment makes it instantly a court of record (g) (5). A court not of record is the court of a private man; whom the law will not intrust with any discretionary power over the fortune or liberty of his fellow-subjects. Such are the courtsbaron incident to every manor, and other inferior jurisdictions: where the proceedings are not enrolled or recorded; but as well their existence as the truth of the matters therein contained shall, if disputed, be tried and determined by a jury. These courts can hold no plea of matters cognizable by the common law, unless under the value of 40s. nor of any forcible injury whatsoever, not having any process to arrest the person of the defendant (h).

In every court there must be at least three constituent parts, the actor, reus, and judex: the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain, and by its officers to apply the remedy. It is also usual in the superior courts to have attorneys, and advocates or counsel, as assistants.

An attorney at law answers to the procurator, or proctor, of the civilians and canonists (i). And he is one who is put in the place, stead, or turn of another, to manage his matters of law. Formerly every suitor was obliged to appear in person, to prosecute or defend his suit (according to the old Gothic constitution) (k), unless by special licence under the king's letters patent (1). This is still the law in criminal cases (6). And an

(e) Co. Litt. 260.

(f) Finch. L. 231.

(g) Salk. 200. 12 Mod. 388.

(h) 2 Inst. 311.

(i) Pope Boniface VIII. in 6 Decretal. 1. 3, t. 16,

(3) This rule is subject to some exceptions; for in the case of a judgment signed on a warrant of attorney given upon an unlawful consideration, or obtained by fraud, upon an affidavit thereof, the court will afford relief upon a summary application. Dougl. 196. Cowp. 727. 1 Hen. Bla. 75. And equity will relieve against a judgment obtained by fraud or collusion. 1 Anst. 8. 3 Ves. & B. 42. And third persons who have been defrauded by a collusive judgment may shew such fraud, so as to prevent themselves from being prejudiced by it. 2 Marsh. 392. 7 Taunt. 97. 13 Eliz. c. 5. (4) But an Irish judgment, though one of

* The court of chancery in New-York is 168, § 1.

§3, speaks of "procuratoribus, qui in aliquibus
partibus attornati nuncupantur."

(k) Stiernhook de jure Goth. l. 1, c. 6.
(1) F. N. B. 25.

record, is triable only by a jury. 5 East, 473. (5) But every court of record has not necessarily a power to fine and imprison. 1 Sid. 145. There are several of the king's courts not of record, as the court of equity in chancery, the admiralty courts, &c. 4 Inst. 84. 37 H.6.14. b. Yelv. 227. Com. Dig. tit. Chancery, C. 2.

(6) This is not universally so, for in prosecutions and informations for misdemeanors, especially in the court of king's bench, a defendant may, and usually does, appear and plead by his attorney or clerk in court. 1 Chitty's Crim. Law. But an attorney has no right

now a court of record. 2 R. S. 276, § 1. & id.