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if afterwards C, the heir of the disseizor, makes a lease for life to D, with remainder to B, the disseizee for life, and D dies; hereby the remainder accrues to B, the disseizee: 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 waiver of his prior right. (g) Therefore 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 law, was allowed, is somewhat similar to that given in the preceding article; 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. 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 re valet, si culpa absit. But there shall be no *remitter to a right, for which the party [*21] has no remedy by action: (k) as if the issue in tail be barred by the fine or warrant (3) of his ancestor, and the freehold is afterwards cast upon him; he shall not be remitted to his estate tail: (7) 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.
OF COURTS IN GENERAL.
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 co-operate; 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, (a) the law
will find the law concerning remitter ably investigated in the argument and judgment of the court in the case of Doe d. Daniell v. Woodroffe, 10 M. and W. 608.]
(3) Estates tail are no longer barrable by these means. See statute 3 and 4 Wm. IV, c .74,§ 14 There is no remitter where the right is barred by the statute of limitations. Sce Doe Woodroffe, 10 M. and W. 608; 15 id. 768; 2 H. L. Ca. 811.
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 require 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 detinue: 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 nuisance by my own authority, or call upon the law to do it for me: I may distrain for rent, or have an action of debt, at my own *option; if I do not [*23] distrain my neighbor'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 the 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. (b) 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 administers the laws, are derived from the power of the crown. (c) For, whether created by act of parliament, or [*24] letters patent, or subsisting by prescription (the only methods by which any courts 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 turn will be taken notice of in their respective places: and I shall therefore here only mention one distinction, that runs throughout 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 for a perpetual memorial and testimony: which rolls are called the records of the court, and are of such high and supereminent 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) (1) 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. 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 hath authority to fine or imprison; so that the very erection *of a new jurisdiction with the power [*25] of fine or imprisonment makes it instantly a court of record. (g) 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 courts-baron 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) (2)
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 license under the king's letters patent. (7) This is still the law in criminal cases. (3) And an idiot cannot to this day appear
(e) Co. Litt. 260.
(f) Finch, L.231.
(g) Salk. 200. 12 Mod. 389.
(h) 2 Inst. 311.
(i) Pope Boniface VIII, in 6 Decretal, l. 3, t. 16, § 3, speaks of "procuratoribus, qui in aliquibus partibus attornati nuncupantur."
(k) Stiernhook de jure Goth. l. 1, c. 6.
(1) F. N. B. 25.
(1) [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. and B. 42. And third persons who have been defrauded by a collusive judgment may show such fraud, so as to prevent themselves from being prejudiced by it. 2 Marsh. 392; 7 Taunt. 97; 13 Eliz. c. 5.]
A judgment is void if the court which assumed to render it had no jurisdiction. But generally it is not competent to show a want of jurisdiction in opposition to the recitals in the record. Whether, where a judgment rendered in one state is brought into controversy in another, it is competent to show a want of jurisdiction in contradiction of the record, is in dispute upon the authorities. See Starbuck v. Murray, 5 Wend. 148; Hall v. Williams, 6 Pick. 232; Bradshaw v. Heath, 13 Wend. 407; Gleason v. Dodd, 4 Met. 333; Norwood v. Cobb, 24 Texas, 551, which allow such evidence, and Newcomb v. Peck, 17 Vt. 302; Wilcox v. Kassick, 2 Mich. 165; Bimelar v. Dawson, 4 Scam. 536; Roberts v. Caldwell, 5 Dana, 512, and Lincoln v. Tower, 4 McLean, 473, which exclude it.
(2) The courts not of record in the United States, like the superior courts, are the creatures of statute, and are held by officers elected or appointed for the purpose. But they are not in any proper sense the courts of private men, and some of them are vested with large powers, and try cases in the common law mode, with jury. Courts of justices of the peace in the several states are generally held not to be courts of record.
(3) [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.]
And now in England a full defence is allowed to be made by counsel in all cases of felony. See statute 6 and 7 Wm. IV, c. 114. It is allowed also in the United States in all cases, civil and criminal.
by attorney, but in person, (m) for he hath not discretion to enable him to appoint a proper substitute: and upon his being brought before the court
in so defenceless a condition, the judges are bound to take care of his in- [ *26]
terests, and they shall admit the best plea in his behalf that any one present can suggest. (n) But as in the Roman law, "cum olim in usu fuisset, alterius nomine agi non posse, sed, quia hoc non minimam incommoditatem habebat, cœperunt homines per procuratores litigare," (o) so with us upon the same principle of convenience, it is now permitted in general, by divers ancient statutes, whereof the first is statute Westm. 2 c. 10, that attorneys may be made to prosecute or defend any action in the absence of the parties to the suit. These attorneys are now formed into a regular corps; they are admitted to the execution of their office by the superior courts of Westminster-hall; and are in all points officers of the respective courts of which they are admitted; and, as they have many privileges on account of their attendance there, so they are peculiarly subject to the censure and animadversion of the judges. (4) No man can practice as an attorney in any of those courts, but such as is admitted, and sworn an attorney of that particular court: an attorney of the court of king's bench cannot practice in the court of common pleas; nor vice versa. To practice in the court of chancery it is also necessary to be admitted a solicitor therein and by the statute 22 Geo. II, c. 46, no person shall act as an attorney at the court of quarter sessions, but such as has been regularly admitted in some superior court of record. So early as the statute 4 Henry IV, c. 18, it was enacted, that attorneys should be examined by the judges, and none admitted but such as were virtuous, learned, and sworn to do their duty. And many subsequent statutes (p) have laid them under farther regulations. (5)
(0) Inst. 4 tit. 10.
22 Geo. II, c. 46. 23 Geo. II, c. 26.
(4) [An attorney is bound to use care, skill, and integrity, and if he be not deficient in any of these essential requisites, he is not responsible for any error or mistake arising in the exercise of his profession. 4 Burr. 2061, and see 4 B. and A. 202. If he be deficient, and a loss thereby arises to his client, he is liable to an action in damages. 2 Wils. 325; 1 Bing. 347; and in some cases, as we have above seen, the court of which he is an attorney will afford a summary remedy. The judges will exercise their summary jurisdiction over the attorneys of the several courts, not merely in the cases where they have been employed in the conduct of suits, or any matter purely professional, but "whenever the employment is so connected with professional character as to afford a presumption that their character formed the ground of their employment." Hughes v. Marye, 3 T. R. 275; In re Aitkin, 4 B. and A. 47; Luxmore v. Lethbridge, 5 B. and A. 898.
Upon the general power of the court to deal summarily with attorneys, see In re Austin et al. 5 Rawle, 203; Matter of Mills, 1 Mich. 393; In re Percy 36 N. Y. 651; matter of Blake, 3 El. and El. 33. A person appearing as attorney is presumed to have due authority, Lagow v. Patterson, 1 Blackf. 32; Osborne v. Bank of U. S., 9 Wheat. 830; Hamilton v. Wright, 37 N. Y. 502. Having been connected on one side he will not be permitted to engage on the other. Cholmondeley v. Clinton, 19 Vesey, 261; Wilson v. State, 16 Ind. 392; Goulden v. State, 11 Ga. 47. He will be liable to his client for any damages sustained by the latter in consequence of his negligence, misconduct or disobedience of instructions: Wilcox v. Plummer, 4 Pet. 174; Holines . Peck, 1 R. I. 245; Reiley v. Cavanaugh, 29 Ind. 435. A purchase made by him of his client of the subject matter of an existing litigation will not be upheld: Wood v. Downer, 18 Vesey, 119; Jackson v. Ketcham, 8 Johns. 479; West v. Raymond, 21 Ind. 305.
(5) [The above statutes, with several others passed subsequently, have been repealed by 6 and 7 Vic. c. 73, and the laws relating to attorneys consolidated. In order to be admitted an attorney, a person must have been bound by contract in writing to serve as clerk during five years to a practicing attorney or solicitor, and have duly served accordingly, but one year may be served with a barrister or certified special pleader, and one with the attorney's London agent. Or if within four years previously, and within six years after his matriculation, he has taken the degree of bachelor of arts, or within eight years of bachelor of laws, in one of the universities of Oxford, Cambridge, Dublin, Durham or London, the binding may be for three years, and one of them may be served with the agent. Before admitting an attorney the judges are required to examine and inquire touching his fitness and capacity to act as such, and if satisfied thereof, they are to administer to him an oath that he will truly and honestly demean himself in practice. For the purpose of facilitating this inquiry, eight or more of them, including the three chiefs, may from time to time appoint examiners, and make rules for conducting the examintion. By the same statute, an attorney of any one of the superior courts of law at Westminster is entitled to be admitted in any other of these courts, or in any inferior court of England or Wales, upon signing the roll of such other court.] See amendatory statutes 14 and 15 Vic. c. 88; 23 and 24 Vic. c. 127.
Of advocates, or (as we generally call them) counsel, there are two species or degrees; barristers, and serjeants. The former are admitted after a considerable period of study, or at least standing, in the inns of court; (7) and are in our old [*27] books styled apprentices, apprenticii ad legem, being looked upon as merely learners, and not qualified to execute the full office of an advocate till they were sixteen years standing; at which time, according to Fortescue, (r) they might be called to the state and degree of serjeants, or servientes ad legem. How ancient and honorable this state and degree is, with the form, splendour, and profits attending it, hath been so fully displayed by many learned writers, (s) that it need not be here enlarged on. I shall only observe, that serjeants at law are bound by a solemn oath (t) to do their duty to their clients • and that by custom (u) the judges of the courts of Westminster are always admitted into this venerable order, before they are advanced to the bench; the original of which was probably to qualify the puisne barons of the exchequer to become justices of assize, according to the exigence of the statute of 14 Edw. III, c. 16. From both these degrees some are usually selected to be his majesty's counsel learned in the law; the two principal of whom are called his attorney, and solicitor general. The first king's counsel, under the degree of serjeant, was Sir Francis Bacon, who was made so honoris causa, without either patent or fee; (w) so that the first of the modern order (who are now the sworn servants of the crown, with a standing salary) seems to have been Sir Francis North, afterwards lord keeper of the great seal to King Charles II. (x) These king's counsel answer, in some measure, to the advocates of the revenue, advocati fisci, among the Romans. For they must not be employed in any cause against the crown without special license; (6) in which restriction they agree with the ad vocates of the fisc: (y) but in the imperial law the prohibition was carried still further, and perhaps was more for the dignity of the sovereign: for, excepting some peculiar causes, the fiscal advocates were not permitted to be at all concerned *in private suits between subject and subject. (z) A custom has [*28] of late years prevailed of granting letters patent of precedence to such barristers as the crown thinks proper to honour with that mark of distinction. whereby they are entitled to such rank and pre-audience (a) as are assigned in their respective patents; sometimes next after the king's attorney-general, but usually next after his majesty's counsel then being. These (as well as the queen's attorney and solicitor-general), (b) rank promiscuously with the king's counsel, and together with them sit within the bar of the respective courts; but receive no salaries, and are not sworn; and therefore are at liberty to be retained in causes against the crown. And all other serjeants and barristers indiscriminately (except
(q) See Book I, introduc. § 1.
(r) De LL. c. 50.
(s) Fortesc. ibid. 10 Rep. pref. Dudg. Orig. Jurid. To which may be added a tract by the late Sergeant Wynne, printed in 1765, entitled "Observations touching the antiquity and dignity of the degree of sergeant at law."
(t) 2 Inst. 214.
(u) Fortesc. c. 50.
(x) See his life by Rogers North, 37.
(w) See his letters, 256. (y) Cod. 2, 9, 1.
(z) Ibid. 2, 7, 13.
(a) Pre-audience in the courts is reckoned of so much consequence, that it may not be amiss to subJoin a short table of the precedence which usually obtains among the practisers:
1. The king's premier serjeant (so constituted by special patent.) (7)
2. The king's ancient serjeant, or the eldest among the king's serjeants. (7)
3. The king's advocate general.
4. The king's attorney-general. (7)
5. The king's solicitor-general. (7)
6. The king's serjeants.
In the courts of exchequer two of the most experienced barristers, called the post-man and the tub man (from the places in which they sit) have also a precedence in motions. (b) Seld. tit. hon. 1, 6, 7.
(6) The license to defend a prisoner is never refused, but some expense must be incurred in obtaining it.
(7) [By the king's mandate, 14th Dec. 1811, the king's attorney and solicitor-general are now to have place and audience before the king's premier serjeant.]