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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 is where he who hath the true property or jus proprietatis ir 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 antient and more certain title.(d) 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. disseizes B., that *is, turns him out of possession, and [*20 dies, leaving a son C.; hereby the estate descends to C. the son of A., and B. 18 barred from entering thereon till he proves his right in an action; now, 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 antient 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 it is to be observed, that to every remitter there are regularly these incidents: an antient 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 [*21 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 ancestors, and the freehold is afterwards cast upon him, he shall not be remitted to his estatetail:(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 antient 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

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The issue is no longer liable to be barred by these means. Stat. 3 & 4 W. IV. C. 74 STEWART

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.



THE next, and principal, object of our inquiries is the redress :f 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 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 formsl 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 *23] not distrain 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 seized 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 snall 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.(b) And, as by our excellent constitution the sole executive power of the laws is *24] 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 letters-patent, or subsisting by prescription, (the only methods by which any

(*) Ch. 1

(*) Co. Litt. 58.

() See bock i. ch. 27

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 sup posed 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 ema nation 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 throughout them all; viz., that some of thei 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 memoria! 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) 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 aro 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 of fine or imprisonment makes it [*25 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)

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 judical 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.() 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 constitu

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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. Doug. 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 de frauded 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.-CHITTY.

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 —CHITTY.

tion,)(k) unless by special license under the king's letters patent. (1) This is still the law in criminal cases. And an idiot cannot to this day appear by attorney, *26] 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 interests, 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 antient statutes, whereof the first is statute Westm. 3, 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. No man can practise 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 practise in the court of common pleas; nor vice versa. To practise in the court of chancery it is also necessary to be admitted a solicitor therein: and by the statute 22 Geo. II. c. 40, 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 further regu lations."

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

(m) F. N. B. 27.

() Inst. 4, tit. 10.

(P) 3 Jac. I. c. 7. 12 Geo. I. c. 29. 2 Geo. II. c. 23. 22 Gea II. c. 46. 23 Geo. II. c. 26.

(") Bro. Abr. tit. Idiot, 1.

This is not universally so; for in prosecutions and informations for misdemeanours, 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 to be present during the investigation of a charge of felony before a magistrate against his client. 3 B. & A. 432; and see 1 B. & C. 37.-CHITTY.

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. & 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.-CHITTY.

The judges will exercise their summary jurisdiction over the attorneys of the several courts, not merely in cases where they have been employed in the conduct of suits, or any matter purely professional, but "whenever the employment is so connected with their professional character as to afford a presumption that their character formed the ground of their employment." Thus, one attorney has been compelled to give up papers and deeds which had been placed in his hands as steward for the owner of the estates to which they refer, and another to pay over money which he had received when employed to collect the effects of an intestate by the administrator, although he had never been employed by him to prosecute or defend any suits in law or equity. Hughes vs. Mayer, 3 T. R. 275. In re Aitkin, 4 B. & A. 47. Luxmoore vs. Lethbridge, 5 B. & A. 898.-Coleridge.

5 But now, by stat. 6 & 7 Vict. c. 73, s. 27, attorneys admitted of any one of the superior courts may practise in any other superior court, or in any inferior court of law in England and Wales, upon signing the roll of such other court. To practise in the court of chancery and the superior courts of equity, however, it is still necessary to be admitted a solicitor therein.-STEWART.

The stat. 6 & 7 Vict. c. 73, consolidating and amending several of the laws relating to attorneys and solicitors, prescribes the conditions of admission as an attorney, the time and mode of their service under articles, and the oaths to be administered to them, and authorizes the judges of the courts of common law and the master of the rolls to appoint examiners to examine the fitness and capacity of all persons applying to be

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;(g) and are in our old books styled apprentices, apprenticii ad legem, being looked upon as [*27 merely learners, and not qualified to execute the full office of an advocate till they were sixteen years standing; at which time, according to Fortescuc, (r) they might be called to the state and degree of serjeants, or servientes ad legem. How antient and honourable 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 puisnè 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; in which restriction they agree with the advocates 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. (2) A custom has of late years prevailed of granting letters-patent of precedence to such barris

(9) See book i. introd. § 1. (*) De LL. c. 50.

(Fortesc. ibid. 10 Rep. pref. Dugd. Orig. Jurid. To which may be added a tract by the late serjeant Wynne, printed in 1765, entitled "Observations touching the Antiquity and Dignity of the Degree of Serjeant-at-Law."

(*) 2 Inst. 214.

(") Fortesc. c. 50.
(w) See his letters, 256.

(*) See his life by Roger North, 37.
(v) Cod. 2, 9, 1.

(▪) Ibid. 2, 7, 13.


admitted as attorneys or solicitors; and the certificate either of the common law or equity examiners will be sufficient to entitle a person so examined to admission in all the courts, examination by both not being necessary.-STEWART.

The degree of serjeant was deprived of its most profitable, if not most important, advantage (exclusive audience in the court of Common Pleas) by the stat. 9 & 10 Vict. c. 54, which extends to all barristers the privileges of serjeants in the court of Common Pleas.-STEWART.

The most valuable privilege formerly enjoyed by the serjeants (who, besides the judges, were limited to fifteen in number) was the monopoly of the practice in the court of Common Pleas. A bill was introduced into parliament in the year 1755 for the purpose of destroying this monopoly; but it did not pass. In 1834, a warrant under the signmanual of the crown was directed to the judges of the Common Pleas, commanding them to open that court to the bar at large, on the ground that it would tend to the general despatch of business. This order was received, and the court acted accordingly. But in 1839 the matter was brought before the court by the serjeants, when it was decided that the order was illegal, Tindal, C. J., declaring that "from time immemorial the serjeants have enjoyed the exclusive privilege of practising, pleading, and audience in the court of Common Pleas. Immemorial enjoyment is the most solid of all titles; and we think the warrant of the crown can no more deprive the serjeant. who holds an immemorial office, of the benefits and privileges which belong to it, than it could alter the administration of the law within the court itself." 10 Bingh. 571. 6 Bingh. N. C. 187, 232, 235. However, the statute 9 & 10 Vict. c. 54 has since extended to all barristers the privileges of serjeants in the court of Common Pleas.SHARSWOOD.

Hence none of the king's counsel can publicly plead in court for a prisoner, or a defendant in a criminal prosecution, without a license,-which is never refused, but an ex pense of about nine pounds must be incurred in obtaining it.-CHITTY.

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