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in the court of common pleas, where only serjeants are admitted) (8) may take upon them the protection and defence of any suitors, whether plaintiff or defendant; who are therefore called their clients, like the dependents upon the ancient Roman orators. Those indeed practiced gratis, for honour merely, or at most for the sake of gaining influence: and so likewise it is established with us, (c) that a counsel can maintain no action for his fees; which are given, not as locatio vel conductio, but as quiddam honorarium; not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation: (d) (9) as is also laid down with regard to advocates in the civil law, (e) whose honorarium was directed by a decree of the senate not to exceed in any case ten thousand sesterces, *or about 801. of English money. (f) (10) And, in order to encourage due freedom of speech in the lawful de- [*29] fence of their clients, and at the same time to give a check to the unseemly licentiousness of prostitute and illiberal men (a few of whom may sometimes insinuate themselves even into the most honourable professions), it hath been holden that a counsel is not answerable for any matter by him spoken, relative to the cause in hand, and suggested in his client's instructions; although it should reflect upon the reputation of another, and even prove absolutely groundless; but if he mentions an untruth of his own invention, or even upon instructions if it be impertinent to the cause in hand, he is then liable to an action from the party injured. (g) (11) And counsel guilty of deceit or collusion are punishable by the statute Westm. 1, 3 Edw. I, c. 28, with imprisonment for a year and a day, and perpetual silence in the courts; a punishment still sometimes inflicted for gross misdemeanors in practice. (h)
(c) Davis pref. 22. 1 Ch. Rep. 38. (f) Veann. l. 1, 11, 7.
(d) Davis, 23.
(g) Cro. Jac, 90.
(e) Ff. 11, 6, 1. (h) Sir T. Raym. 376.
(8) [That is, in bank; for at trials at nisi prius in C. P. a barrister, who is not a serjeant, may even lead a cause.]
And now by statute 9 and 10 Vic. c. 54, all barristers have the same privileges in the court of common pleas as the serjeants.
(9) [Upon the same principle a physician cannot maintain an action for his fees. 4 Term Rep. 317.j
In the United States a counsellor is not only entitled to stipulate for a reasonable fee, but he may recover upon the client's implied promise to pay a reasonable compensation. In the state of New Jersey, however, the rule appears to be otherwise. Seeley v. Crane, 3 Green, 35; Van Alter r. McKinney's Ex'rs, 1 Harrison, 236.
It has been held that if an attorney renders a bill on the understanding that it is to be immediately paid, and the client disputes it, and compels its collection by legal proceedings, the attorney is not bound by the bill rendered, but may recover what the evidence shows the services to be reasonably worth. Romeyn v. Campau, 17 Mich. 327.
Physicians also in the United States may recover upon an implied promise to pay reasonable fees. See Ordronaux Juris. of Med. 40.
(10) [The circumstances which led to this decree, as recorded by Tacitus, deserve to be mentioned. Samius, a Roman knight of distinction, having given Suilius a fee of three thousand guineas to undertake his defence, and finding that he was betrayed by his advocate, ferio in demo ejus incubuit; in consequence of this the senate insisted upon enforcing the Cincian law, qua cavetur antiquitus, nequis ob causam orandam pecuniam donumve accipiat.]
(11) [See the important case establishing the correctness of this position. Holt, C. N. P. 621; 1 B. and A. 232; 1 Saund. Rep. 130.]
See also McMillin v. Birch, 1 Binn. 178; Hoar v. Wood, 3 Met. 194; Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410; Garr v. Selden, 4 N. Y. 91; Jennings v. Paine, 4 Wis. 358; Cooley Const. Lim. 443.
OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY.
WE are next to consider the several species and distinctions of courts of justice, which are acknowledged and used in this kingdom. And these are, either such as are of public and general jurisdiction throughout the whole realm; or such as are only of a private and special jurisdiction in some particular parts of it. Of the former there are four sorts; the universally established courts of common law and equity; the ecclesiastical courts; the courts military; and courts maritime. And, first, of such public courts as are courts of common law and equity.
The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there are manors and townships in the kingdom; wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbours and friends. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion. *The course of justice flowing in [*31] large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy; being equally similar to that which prevailed in Mexico and Peru before they were discovered by the Spaniards, and to that which was established in the Jewish republic by Moses. In Mexico each town and province had its proper judges, who heard and decided causes, except when the point in litigation was too intricate for their determination; and then it was remitted to the supreme court of the empire, established in the capital, and consisting of twelve judges. (a) Peru, according to Garcilasso de Vega (an historian descended from the ancient Incas of that country), was divided into small districts containing ten families each, all registered and under one magistrate; who had authority to decide little differences and punish petty crimes. Five of these composed a higher class of fifty families; and two of these last composed another, called a hundred. Ten hundreds constituted the largest division, consisting of a thousand families; and each division had its separate judge or magistrate, with a proper degree of subordination. (b) In like manner we read of Moses, that, finding the sole administration of justice too heavy for him, he "chose able men out of all Israel, such as feared God, men of truth, hating covetousness; and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens; and they judged the people at all seasons; the hard causes they brought unto Moses; but every small matter they judged themselves." (c) These inferior courts, at least the name and form of them, still continue in our legal constitution: but as the superior courts of record have in practice obtained a concurrent original jurisdiction with these; and as there 8, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (amongst others) it has happened [*32] that these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse, may be matter of some speculation, when we consider on the one hand the increase of expense and delay, and on the other the more able and impartial decision, that follow from this change of jurisdiction.
(a) Mod. Un. Hist. xxxviii, 469.
(b) Mod. Un. Hist. xxxix, 14.
(c) Exod. c. 18.
The order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries (for with those of a jurisdiction merely criminal I shall not at present concern myself), will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed throughout the kingdom, is yet, (with regard to each particular, court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power.
I. The lowest, and at the same time the most expeditious, court of justice known to the law of England, is the court of piepoudre, curia pedis pulverizati; so called from the dusty feet of the suitors: or, according to Sir Edward Coke, (d) because justice is there done as speedily as dust can fall from the foot;-upon the same principle that justice among the Jews was administered in the gate of the city, (e)that the proceedings might be the more speedy, as well as public. But the etymology given us by a learned modern writer (f) is much more ingenious and satisfactory; it being derived, according to him, from pied puldreaux, (a pedlar, in old French), and therefore signifying the court of such petty chapmen as resort to fairs or markets. It is a court of record, incident to every fair and market; of which the steward of him who owns or has the toll of the market, is the judge; and its jurisdiction extends to administer justice for all commercial injuries done in that very fair or market, and not in any preceding one. So that the injury must be done, complained of, heard, and determined, within the compass of one and the same day, unless the fair continues longer. The court hath cognizance of *all matters of contract [*33] that can possibly arise within the precinct of that fair or market; and the plaintiff must make oath that the cause of action arose there. (g) From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster; (h) which are now also bound by the statute 19 Geo. III, c. 70, to issue writs of execution, in aid of its process, after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction; which may possibly occasion the revival of the practice and proceedings in these courts, which are now in a manner forgotten. The reason of their original institution seems to have been, to do justice expeditiously among the variety of persons that resort from distant places to a fair or market; since it is probable that no other inferior court might be able to serve its process, or execute its judgments, on both or perhaps either of the parties; and therefore unless this court had been erected, the complainant must necessarily have resorted, even in the first instance, to some superior judicature.
II. The court-baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor. This court-baron is of two natures: (i) the one is a customary court, of which we formerly spoke, (k) appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes nciently called: for that it is held before the freeholders who owe suit and service to the manor, the steward being rather the register than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz.: the freeholders' court, was composed of the lord's tenants, who were the pares of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass on the case, or the like, where the debt or damages do not *amount to forty [*34] shillings: (1) which is the same sum, or three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or fierding
(d) 4 Inst. 272.
courts, so called, because four were instituted within every superior district or hundred. (m) But the proceedings on a writ of right may be removed into the county court by a precept from the sheriff called a tolt, (n)" quia tollit atque eximit causam e curia baronum." (o) (1) And the proceedings in all other actions may be removed into the superior courts by the king's writs of pone, (p) or accedas ad curiam, according to the nature of the suit. (q) After judgment given, a writ also of false judgment (r) lies to the courts at Westminster to rehear and review the cause, and not a writ of error; for this is not a court of record: and therefore in some of these writs of removal, the first direction given is to cause the plaint to be recorded, recordari facias loquelam.
III. A hundred-court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. (2) The free suitors are here also the judges, and the steward the registrar, as in the case of a courtbaron. It is likewise no court of record: resembling the former in all points, except that in point of territory it is of greater jurisdiction. (s) This is said by Sir Edward Coke to have been derived out of the county court for the case of the people, that they might have justice done to them at their own doors, without any charge or loss of time; (t) but its institution was probably coeval with that of hundreds themselves, which were formerly observed (u) to have been introduced, though not invented, by Alfred, being derived from the polity of the ancient Germans. The centeni, we may remember, were the principal inhabitants of a district composed of different villages, originally in number a hundred, but afterwards only called by that name; (v) and who prob[*35] ably gave the same denomination to the district out of which they were chosen. Cæsar speaks positively of the judicial power exercised in their hundred-courts and courts-baron. "Principes regionum atque pagorum" (which we may fairly construe, the lords of hundreds and manors), "inter suos jus dicunt, controversiasque minuunt." (w) And Tacitus, who had examined. their constitution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundredors, or jury; who were taken out of the common freeholders, and had themselves a share in the determination. "Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt: centeni singulis, ex plebe comites, consilium simul et auctoritas, adsunt." (x) This hundred-court was denominated hæreda in the Gothic constitution. (y) But this court, as causes are equally liable to removal from hence as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions.
IV. The county court (3) is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt or damages under
(m) Stiernhook, de jure Goth. l. 1, c. 2.
(p) See Appenil. No. I, 43.
(0) 3 Rep. pref. (r) F. N. B. 18.
(n) F. N. B. 3, 4. See Appen. No. I, § 2.
(v) Centeni ex singulis pagis sunt, id que ipsum inter suos vocantur; et, quod primo numerus fuit, jam nomen et honor est. Tac. de mor. Germ. c. 6. (w) De Bell. Gall. l. 6, c. 22.
(x) De Morib. German, c. 13.
(y) Stiernhook, l. 1, c. 2.
(1) Writs of right are now abolished. Statutes 3 and 4 Wm. IV, c. 27. (2) The courts-baron and hundred-court have long been obsolete as courts of civil jurisdiction. (3) [The new county courts, so called in contradistinction to the county courts before men. ti ned, were established by the statute 9 and 10 Vic. c. 95. They at first possessed jurisdiction only for the recovery of debts, damages and demands. legacies and balances of partnership accounts, where the sum sued for did not exceed 201. They were also charged with the power of giving a landlord possession of premises where the tenant's term had determined, or he had received proper notice to quit, in cases in which the rent did not exceed 50l. annually, and no fine had to be paid. By the statute 13 and 14 Vic. c. 61, their jurisdiction was extended to actions where the amount did not exceed 501., and, if the litigants consented in writing, to actions for any amount whatevor. By this statute an appeal was also given against the decis ion of the judge on matter of law, but only in actions for sums above 201. No appeal lies from his decision in matters of fact. The other statutes relating to this branch of the juris diction of these courts are the 12 and 13 Vic. c. 101, and 15 and 16 Vic. c. 54. They have no
the value of forty shillings. (*) Over some of which causes these inferior courts have, by the express words of the statute of Gloucester, (a) a jurisdiction totally exclusive of the king's superior courts. For in order to be entitled to sue an action of trespass for goods before the king's justiciars, the plaintiff is directed to make affidavit that the cause of action does really and bona fide amount to 40s.; which affidavit is now unaccountably disused, (b) except in the court of exchequer. The statute, also, 43 Eliz. c. 6, which gives the judges in many personal actions, where the jury assess less damages than 40s., a power to certify the same and *abridge the plaintiff of his full costs, was also meant to prevent vexation by litigious plaintiffs; who, for purposes of mere [*36] oppression, might be inclinable to institute suits in the superior courts for injuries of a trifling value. The county court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ called a justicies; which is a writ empowering the sheriff for the sake of dispatch to do the same justice in his county court, as might otherwise be had at Westminster. (c) The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer. The great conflux of freeholders, which are supposed always to attend at the county court (which Spelman calls jorum plebeia justicie et theatrum comitiva potestatis), (d) is the reason why all acts of parliament at the end of every session were wont to be there published by the sheriff; why all outlawries of absconding offenders are there proclaimed; and why all popular elections which the freeholders are to make, as formerly of sheriffs and conservators of the peace, and still of coroners, verderors, and knights of the shire, must ever be made in pleno comitatu, or in full county court. By the statute 2 Edw. VI, c. 25, no county court shall be adjourned longer than for one month, consisting of twenty-eight days. And this was also the ancient usage, as appears from the laws of King Edward the elder; (e) "præpositus (that is, the sheriff) ad quartam circiter septimanam frequentem populi concionem celebrato: cuique jus dicito; litesque singulas dirimito." In those times the county court was a court of great dignity and splendour, the bishop and the earldorman (or earl), with the principal men of the shire sitting therein to administer justice both in lay and ecclesiastical causes. (f) But its dignity was much impaired, when the bishop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removable from hence into the king's superior courts, by writ of pone or recordari, (g) in the same manner as from hundred-courts, and courts-baron; and as the same writ of false judgment may be had, in nature of a writ of error; this has occasioned the same disuse of bringing actions therein.
(z) 4 Inst. 266.
(e) C. 11.
jurisdiction, it may be observed, unless the parties expressly consent in writing to that effect, in actions in which the title to corporeal or incorporeal hereditaments, or to any toll or franchise, or in which the validity of any devise or bequest under a will or settlement, may come in question. Actions brought for a malicious prosecution, for libel or slander, criminal conversation or seduction, or breach of promise of marriage, are expressly excluded.
The judges must be barristers of seven years standing. The judge decides all questions as well of fact as of law, unless one or other of the parties to the action has demanded a jury, for the trial of matters of fact, which in actions for sums above 57. may be obtained as of right, and consists of five jurors summoned from the district where the court is holden. The court is a court of record. It is held once a month. And to encourage parties to resort to this tribunal, the plaintiff in the superior courts (in suits in which they have concurrent jurisdiction) does not recover his costs in actions of contract where he recovers no more than 207., and in actions of tort where he recovers no more than 57. unless the judge of the superior court who tries the cause certifies for costs, or it appears to the court that there was sufficient reason for bringing the action in the superior court.
Subsequent statutes, (19 and 20 Vic. c. 108; 28 and 29 Vic. c. 99; and 31 and 32 Vic. c. 71), have still further enlarged the jurisdiction of these courts, and they now have equitable and maritime jurisdiction, and also probate jurisdiction in certain cases.