shall be tried by nothing but itself;(6) that is, upon bare inspection whether there be any such record or no; else there would be no end of disputes. (7) 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, (ƒ) 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 [*25 it instantly a court of record. (g)(8) A court not of record is the court of a private man; whom the law will not entrust 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) (9) 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 officer to apply, the remedy. (10) It is also (6) 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. I Hen. Bla. 75. And equity will relieve against a judgment obtained by fraud or collusion. I Anst. 8. 3 Ves. & 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. I3 Eliz. c. 5 CHITTY. If a question arises as to the existence of the record, it may be proved by its production or by a sworn or office copy. Bellas v. McCarty, 10 Watts (Pa.) 25 (1841). Thompson v. Lyle, 3 Watts and Sergeants (Pa.) 166, 169 (1842). Bradley v. Vail, 48 Connecticut, 375, 381 (1880). Hahn v. Kelly, 34 California (Hale) 391, 422, 424 (1868). (7) Wheaton v. Fellows, 23 Wend. (N. Y.) 375, 377 (1840). If there have been any mistake in making up a record, the court upon application will direct an amendment, and it can be altered or controlled in no other way. Claggett v. Simms, 21 N. H. 22, 33 (1855). (8) Lacaze v. State, I Addison (Pa.) 59. State v. Connor, 5 Blackf. (Ind.) 325, 326 (1840). But every court of record has not necessarily a power to fine and imprison. I Sid. 145. There are several of the king's courts not of record, as the court of equity in chancery, the admiralty courts, etc. 4 Inst. 84. 37 H. 6, 14, b. Yelv. 227. Com. Dig. tit. Chancery, C. 2.-CHITTY. Crim v. Kessing, 89 Cal. (Pomeroy) 479, 484 (1891). Schouler's Pers. Prop. vol. 1, p. 357 (1884). Van Daren v. Horton, I Dutchers (N. J.) 205, 207 (1855). Withers v. The State, 36 Ala. 252, 263 (1860). Crockett v. Routon, i Dudley (Ga.) 254, 255 (1833). Delovis v. Boits, 7 Fed. Cases, 418, 438 (1815). Bow. Eng. Const. (2 ed.) 236. (9) A judicial act is one performed by the court, touching the rights of parties or property brought before it by voluntary appearance, or by prior action of ministerial officers. Acts done out of court, in bringing the parties into court are, as a general proposition, ministerial acts; those done by the court in session in adjudicating between the parties or upon the right of one in court ex parte [On his behalf]are judicial acts. Flournoy v. The City of Jeffersonville, 17 Indiana, 186 (1861). Where a judge is illegally elected or appointed, his acts while performing the judicial functions are valid and binding upon the public. State v. Gleason, 12 Florida, 191 (1867). (10) Fong Yue Ting v. U. S., 149 U. S. 698-729 (1892). Union Colony v. Elliott, 5 Colo. 371, 381 (1880). Regina v. Bunting, 7 Ontario, 118, 125 (1884). An attorney at 1043 BOOK III.-4. usual in the superior courts to have attorneys, and advocates or counsel, as assistants. (11) An attorney at law answers to the procurator, or proctor, of the civilians and canonists. (i)(12) And he is one who is put in the place, stead, or turn of another, to manage his matters of law. (13) 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 letterspatent. (1) This is still the law in criminal cases. (14) And an idiot cannot to this day appear by attorney, but in person; (m) for he hath not dis*26] cretion 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. (2) But, as in the Roman law, cum olim in usu fuisset, alterius nomine agi non posse, sed, quia hoc non minimam incommoditatem habebat, cæperunt homines per procuratores litigare," (o)(15) 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. 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. (16) No man can practice (i) Pope Boniface VIII. in 6 Decretal. 1. 3, t. 16, § 3. speaks of "procuratoribus, qui in aliquibus partibus attornati nuncupantur." "Proctors who are in some places called attorneys."] (k) Stiernhook de jure Goth. l. 1, c. 6. (1) F. N. B. 25. (m) F. N. B. 27. law is not one of such officers as are contemplated by the act of November 16, 1863, and therefore he need not comply with the provisions of the act concerning the taking of the oath prescribed there. (11) Bow. Eng. Const. (2 ed.) 236. (12) Blackstone uses procurator and proctor as synonymous. There appear, however, to have been two kinds, covered by this wide expression-the progmatici and the procuratores. The progmatici are described as persons who assisted the advocates when they were pleading and instructed them in points of law. The procuratores seem to have resembled attorneys amongst us. 2 Beven on Negligence (2 ed.) 1414. (13) Binn's Justice (Brightley) (10 ed.) 69, 213. Allen v. Rand, 5 Conn. 322, 325 (1824). An attorney is a public officer. Ex parte Falkner, 1 W. Va. (Hog.) 269, 297 (1866). In re Ole Mosness, 39 Wis. 509, 510 (1876). Leigh's Case, 1 Mumford (Va.) 468, 479 (1810). (14) 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. I 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. But the contrary is now the law in such cases in both England and the United States. (15) [“Although formerly it had been the custom for no one to act in the name of another; yet as this was attended with great inconvenience, men began to carry on law suits by proctors."] (16) The relation of attorney, or solicitor and client is governed in great degree by the same rules which are applicable to other cases of agency. The client is the principal and the attorney is the agent, clothed with an apparent general authority in the management of the cause. The attorney's duty is to follow his client's instructions; to observe every limitation placed upon his general authority; and to act with perfect good faith. and with a single view to his client's interests, and with the usual skill of members of his profession. If he violates his duty, he is liable to an action by his client although he acted within the scope of his apparent authority. Such is the oath and such the doctrine prescribed to lawyers in the days of Justinian Cod Lib. 3, tit. 1. 1. 14, ? I. How well worthy is the doctrine for the consideration of Christian lawyers in our day. Story on 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. 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() have laid them under further regulations. (17) Of advocates, or (as we generally call them) counsel, there are two species or degrees; barristers, and sergeants. The former are admitted after a considerable period of study, or at least standing, in the inns of court;(9) and are in our old books *styled apprentices, apprenticii ad legem, (18) [*27 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 Fortesque, (r) they might be called to the state and degree of sergeants, or servientes ad legem. (19) How ancient and honorable this state and degree is, with the form, splendor, 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 seregants 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.(20) 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 sergeant was Sir Francis Bacon, who was made so honoris causa, (21) without either patent (p) 3 Jac. I. c. 7. 12 Geo. I. c. 29. 2 Geo. II. c. 23. 22 Geo. II. c. 46. 23 Geo. II. c. 26. (q) See book i. introd. ¿ 1. (r) De LL. c. 50. (s) Fortesc. ibid. 10 Rep. pref. Dugd. 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. " Agency (9 ed.) 24-25. In nearly all the states of the union attorneys and counsellors are regulated by statutes which require in general an examination for admission, a good moral character and a solemn oath to uphold the constitutions and faithfully to perform their professional duties. State v. Garesche, 36 Missouri, 256 (1866). The courts exercise jurisdiction over attorneys wherever their employment is of a professional capacity or arises from their professional character. Hughes v. Meyer, 3 T. R. 275. In re Aitkin, 4 B. & A. 47. Luxmoore v. Lethbridge, 5 B. & A. 898. An attorney is liable to an action for damages wherever his client is injured by his negligence or deficiency. 4 Bur. 2061. 4 B. & A. 202. 2 Wils. 325. I Bing. 347. (17) In the early stages of the law attorneys were appointed orally in court; later they were appointed by warrant out of court, which warrant was required to be filed. But these rules have become to a great extent relaxed, until, at the present day, we find it well settled that although an attorney cannot admit service of process without authority, yet his authority will be presumed. But where one is represented by an unauthorized attorney he may find relief either by motion or bill in equity. Harshey v. Blackmarr, 20 Iowa (Withrow) 161, 171 (1866). An attorney's purchase from his client of the subjectmatter of the litigation cannot be enforced. Wood v. Downes, 18 Vesey Jr. 119 (1811). West v. Raymond, 21 Ind. 305 (1863). (18) [Apprentices to the law.] (19) [Sergeants at law.] (20) [The statute 9 & 10 Vict. c. 54 extended the privileges of sergeant in the court of Common Pleas to all barristers. (21) [As a mark of honor.] 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; (22) 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 *28] 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 barrister as the crown thinks proper to honor with that mark of distinction: whereby they are entitied 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 sergeants and barristers indiscriminately (except in the court of common pleas, where only sergeants are admitted)(23) 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 ancient Roman orators. Those indeed practiced gratis, for honor 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;(24) not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation:(d)(25) as is also laid (w) See his letters. 256. (x) See his life by Roger North, 37. (y) Cod. 2, 9, 1. (2) 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 practicers. 1. The king's premier sergeant, (so constituted by special patent). 2. The king's ancient sergeant, or the eldest among the king's sergeants. 3. The king's advocate-general. 4. The king's attorney-general. 5. The king's solicitor general:} (26) 6. The king's sergeants. 7. The king's counsel, with the queen's attorney and solicitor. (22) 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 expense of about nine pounds must be incurred in obtaining it.—CHITTY. (23) That is, in bank; for at trials at nisi prius in Common Pleas a barrister who is not a sergeant may even lead a cause.-CHITTY. (24) Story on Agency (9 ed.) 42. (25) 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, sergeants and barristers are entitled to certain privileges. Each is an esquire; and his eldest son is qualified to kill game. I 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. I Hen. Bla. 636.-CHITTY. See Bow. Eng. Const. (2 ed.) 239. (26) 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 sergeant.-CHITTY. 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 80/. of English money. (ƒ)(27) And, in order [*29 to encourage due freedom of 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 honorable 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) (28) 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) CHAPTER IV. 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, (e) F. 11, 6, 1. (ƒ) Tac. Ann. l. 11. (g) Cro. Jac. 90. (27) 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 [He went home and fell upon his sword]. In consequence of this, the senate insisted upon enforcing the Cincian law, quá cavetur antiquitus, nequis ob causam orandam pecuniam donumve accipiat [By which it was anciently provided that no one should receive money or presents for pleading a cause]. 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 Cæsar, 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 [He fixed the amount of the sum to be received at ten thousand sesterces, to exceed which was considered as bribery]. I Ann. lib. II, 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 publicæ mercis tam venale fuit quam advocatorum perfidia [Nor was there any public traffic so venal as the perfidy of advocates]. To the honor 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 possit [For what is the civil law? That which can neither be biased by favor, violated by power, nor corrupted by money]. Cic. pro. Cæcina.-CHRISTIAN. See 2 Comyn on Contracts, 378. Adams v. Stevens and Cagger, 26 N. Y. (Wend.) 451, 453 (1841). It is now generally conceded throughout the United States that an attorney has a right of action for a reasonable compensation for services rendered. Stevens v. Adams, 23 Wendell, 57 S. C. 26. Ibid. 451. Newman v. Washington, Martin & Yerger, 79. Stevens v. Monges, 1 Harrington, 127. Bayard v. McLane, 3 Harrington, 217 (1844). Duncan v. Beishaupt, 1 McCord, 149. Downing v. Major, 2 Dana, 228. Christy v. Douglas, Wright's Ch. Rep. 485. Webb v. Hepp, 14 Missouri, 354. Vilas v. Downer, 12 Vermont, 419. Lecat v. Saller, 3 Porter, 115. Gray v. Brackenridge, 2 Penna. Rep. 181. Foster v. Jack, 4 Watts, 33. Wait's Actions and Defences. vol. 1, p. 450 (1877). But in N. J. counsel fees cannot be recovered eo nomini [Under that name], but by contract only. Seeley et al. v. Crane, 3 Green (N. J.) 35, 36 (1835). (28) See I B. & A. 232. I Saund. Rep. 130. When a client is present when his counsel speaks slanderous words and does not disavow them, the client is responsible for any |