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ter 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 in the court of common pleas, where only serjeants are admitted) may take upon them the protection and defence of any suitors, whether plaintiff or defendant; who are therefore called their clients, like the dependants upon the antient Roman orators. Those indeed practised 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)" 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)" And, in order to encourage due freedom of
"By the king's mandate, 14th Dec. 1811, the king's attorney and solicitor-general are now to have a place and audience before the king's premier serjeant.-CHITTY.
10 That is, in bank; for at trials at nisi prius in Common Pleas a barrister who is not a erjeant may even lead a cause.—CHITTY.
Upon the same principle a physician cannot maintain an action for his fees. 4 Term Rep. 317. It has also been held that no action lies to recover back a fee given to a barrister to argue a cause which he did not attend. Peake's R. 122. Formerly it was considered that if a counsel disclosed his client's case or neglected to attend to it, he was liable to be sued. See Vin. Abr. Actions of Assumpsit, P. But in more modern times it has been considered that no such action is sustainable. Peake's R. 96.
On the other hand, serjeants and barristers are entitled to certain privileges. Each is an esquire; and his eldest son is qualified to kill game. 1 T. R. 44. They are entitled when sued separately to have the venue laid in any action against them in Middlesex, (1 Stra. 610,) and are privileged from arrest and from being taken in execution whilst they are on their proper circuit and when they are attending the sittings at Nisi Prius. 1 Hen. Bla. 636.-CHITTY.
12 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, ferro in domo ejus incubuit. In consequence of this, the senate insisted upon enforcing the Cincian law, quâ cavetur antiquitus, nequis ob causam orandam pecuniam donumve accipiat.
Tacitus then recites the arguments of those who spoke against the payment of fees and of those who supported the practice, and concludes with telling us that Claudius Caesar, thinking that there was more reason, though less liberality, in the arguments of the latter, capiendis pecuniis posuit modum, usque ad dena sestertia, quem egressi repetundarum tenerentur. 1 Anr. lib. 11, c. 5.
But, besides the acceptance of such immense fees, the perfidy of advocates had become a common traffic; for Tacitus introduces the subject by observing, nec quidquam publica mercis tam venale fuit quam advocatorum perfidia. To the honour of our courts, the corruption of judges and the treachery of counsel are crimes unheard of in this country. Quid enim est jus civile? Quod neque inflecti gratiâ, neque perfringi potentiâ, neque adulterari pecuniâ Dossit. Cic. pro Cecina.-CHRISTIAN.
speech in the lawful defence 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 instruc tions, 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) 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 misdemeanours in practice.(h)
OF THE PUBLIC COURTS OF COMMON LAW AND FQUITY.
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 antient 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 large streams from [*31 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
In New Jersey, an advocate's fees are not recoverable at law. Shaver vs. Norris, Pennington, 663. Seeley vs. Crane, 3 Green, 35. Van Alter vs. McKinney's Exrs., 1 Harrison, 236. However, the general current of decisions in the United States is in favour of the right of counsel to recover by a suit at law a reasonable compensation for their services, whether in court or out of court. Stevens vs. Adams, 23 Wendell, 57, S. C. 26. Ibid 451. Newman vs. Washington, Martin & Yerger, 79. Stevens vs. Monges, 1 Harrington, 127. Bayard vs. McLane, 3 Harrington, 217. Duncan vs. Beisthaupt, 1 McCord, 149 Downing vs. Major, 2 Dana, 228. Christy vs. Douglass, Wright's Ch. Rep. 485. Webb vs Hepp, 14 Missouri, 354. Vilas vs. Downer, 21 Vermont, 419. Lecatt vs. Saller, 3 Porter, 115. Gray vs. Brackenridge, 2 Penna. Rep. 181. Foster vs. Jack, 4 Watts, 33. It may De questioned whether the real interests of the profession have been promoted by the change.-SHARSWOOD.
"See the late important case establish ng the correctness of this position. Holt, C N. P. 621 1 B. & A. 232. 1 Saund. Rep 130.-CHITTY.
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 antient Incas of that country,) was divided into small districts conaining 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, con sisting 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 is, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (amongst others) it has happened that these petty tribunals have fallen into decay, and almost into obli*32] vion; 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.
The order I shall observe in discoursing on these several courts, constitutec for the redress of civil injuries, (for with those of a jurisdiction merely crimina. 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.
1. 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 pedler, 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 that can possibly arise
*33] within the precinct of that fair or market; and the plaintiff must make
From this court a writ of error
oath that the cause of action arose there.(g) 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
(a) Mod. Un. Hist xxxviii. 469
b) Ibid. xxxix. 14.
4 Inst 272.
(e) Ruth iv.
() Barrington's Observat. on the stat. 337
(*) Cro. Eliz. 773.
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 dis tant 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: 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 antiently called for that it is held before the freeholders who owe suit and service to the manor, the steward being rather the registrar 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 feodal 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 [*34 to forty shillings;() which is the same sum, or three marks, that bounded the jurisdiction of the antient Gothic courts in their lowest instance, or fierding-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 haronum."(o) 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.(g) 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. 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 ease 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
Co. Litt. 58.
Book ii. ch. 4, 6, and 22.
(m) Stiernhook de jure Goth. 1. 1, c. 2.
(") F. N. B. 3, 4. See Append. No. I. 2 2.
(P) See Append. No. I. 3 3.
(9) F. N. B. 4, 70. Finch, L. 444, 445.
() Finch, L. 243.
(*) 2 Inst. 71.
4 Inst. 267.
'All the freeholders of the king were called barons; but the editor is not aware that it appears from any authority that this word was ever applied to those who held freeholds of a subject. See an account of the ancient barons, ante, 1 book, 399, n. 5. It seems to be the more obvious explanation of the court-baron that it was the court of the baron or lord of the manor, to which his freeholders owed suit and service. In like manner, we say the king's court and the sheriff's court.-CHRISTIAN.
The writ of right having been abolished, (3 & 4 W. IV. c. 27, s. 36,) this branch of its jurisdiction no longer exists.-KERR.
of the antient Germans. The centeni, we may remember, were the principai
IV. The county-court 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 the value of forty shillings.(z) 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 408.; which affidavit is now unaccountably disused,(b) except in the
(*) Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur, et, quod primo numeris fuit, jam nomen et honor est. Tac. de Mor. Germ. c. 6.
() De Bell. Gall. l. 6, c. 22. (*) De Morib. Germ. c. 13.
() Stiernhook, l. 1, c. 2.
3 T. R. 363. Bac. Abr. Court of King's
The courts-baron and hundred-courts have long been entirely obsolete as courts of civil jurisdiction; and the statute 9 & 10 Vict. c. 95 has accordingly empowered the lords of any hundred, or of any honour, manor, or liberty having any court in right thereof in which debts or demands may be recovered, to surrender the right of holding such courts to the crown, after which surrender the right of holding such courts is to cease and determine.-KERR.
As to the county-court in general, see Com. Dig. County-Courts, B. 3. Bac. Abr. Court, County-Court. Vin. Abr. Court, County, 7 vol. 5. 4 Inst. 266. No action can be brought in the county-court, unless the cause of action arose, and the defendant reside, within the county; and if that be not the case, the action may be brought in the superior court, although for a sum less than 40s.; for if no action can be brought in the inferior jurisdiction for so small a debt, the plaintiff is not therefore to lose it. Per Lord Kenyon, 6 T. R. 175. 8 T. R. 235. 1 Bos. & P. 75. 1 Dowl. & R. 359. So if the contract be made on the high seas, as for wages, it cannot be recovered in the county-court. 1 B. & A. 223. But the non-residence of the plaintiff within the jurisdiction constitutes no objection at common law to his proceeding in the county-court, (1 East, 352;) though in some local courts of request, constituted by particular statutes, both plaintiff and defendant must reside within the jurisdiction. 8 T. R. 236. This court has no jurisdiction over trespasses laid to have been committed vi et armis, (per Lord Kenyon, 3 T. R. 38;) because the county-court, not being a court of record, cannot fine the defendant. Com. Dig. County C. 8. But it is said to be otherwise when the proceedings are by justicies. Com. Dig. County C. 5. The writ of justicies does not, however, except in this instance and as respects the amount of the debt, enlarge the sheriff's jurisdiction. 1 Lev. 253. Vin. Abr. Court, County, D., a. 2, pl. 6. An entire debt exceeding 40s. cannot be split, so as to be sued for in this court; nor can the creditor falsely acknowledge satisfaction of a part so as to proceed for the rest. 2 Inst. 312. Palm. 564. Com. Dig. County C. 8. 2 Roll. a. 317, pl. 1. But where the debt has really been reduced by payments under 40s., it may be recovered in this court. Com. Dig. County C. 8. See 1 B. & P. 223, 224. No capias against the person can issue out of this court, (Com. Dig. County C. 9;) and therefore if the defendant has no goods the plaintiff is without remedy there; but an action may at common law be brought in the superior courts on a judgment ob tained in the county-court, and thus, ultimately, execution against the person may be obtained. Greenwood on Courts, 22. Finch, 318. F. N. B. 152.—CHITTY.