payment, it follows that as the executor can commence no suit, he must he paid the last of any, and may lose his debt if the estate of the testator should prove insolvent unless he were allowed to retain it (a). Nor pre both his Must not retain in prejudice to credi tors of a higher Remitter. The doctrine of retainer is, therefore, the necessary consequence of the other doctrine, the priority of the creditor who first commences his action. But the executor shall not retain his own debt in preference to those of a higher degree. shall one executor be allowed to retain his own debt in judice to that of his co-executor in equal degree; but shall be paid in proportion. Nor shall any executor in own wrong retain. Remitter is where he who has the true property in lands, but is out of possession, and has no right to enter without recovering possession in an action, has 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 ancient and more certain title. But if the subse- Litt. s. 659. quent 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. Therefore, in every remitter there are these incidents; an ancient right and a new defeazible estate of freehold, uniting in the same person; which defeazible estate must be cast upon the tenant, not gained by his own act or folly. The reason for the remedy is somewhat similar to that given in the Litt. s. 661. preceding article. 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. But there shall be no remitter to a right for which the party has no remedy by action as if the issue in tail be barred by the fine or warranty of his ancester (b), and the freehold is afterwards cast upon him; he shall not be remitted to his estate tail, for the Moore, 115. operation of the remitter is the same, after the union of the two rights, as that of a real action would have been before it. Co. Litt. 348, 350. Co. Litt. 349. 1 And. 286. (a) He may retain also for debts to which he is entitled as trustee, and (in equity) for debts due to another in trust for him; but out of assets, merely equitable, he can only retain a proportionable part with the other creditors; Williams' Ex. and Ad. 762, 763. (a) By 3 & 4 Wm. 4, c. 74, s. 14, estates tail and estates expectant thereon are no longer barrable by warranty; but in lieu thereof other provisions are made, enabling tenants in tail to alienate entailed estates. See the act, ante, p. 138. CHAPTER III suit in courts. OF COURTS IN GENERAL. Of redress by 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. b. 3, ch. 1. Of courts of justice. Co. Litt. 58. A court of record. Although in the several cases of redress, by the act of the parties mentioned in a former chapter, the law allows an extra judicial remedy, yet that does not exclude the ordinary course of justice. The remedies by the mere operation of law, are, indeed given, because no remedy can be ministered by suit or action, without the absurdity of a man's bringing an action against himself. 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. A court is a place wherein justice is judicially administered. And as by our constitution the sole executive power of the laws is vested in the king, all courts of justice, which are the medium by which he administers the laws, are derived from the power of the crown. The king is supposed, in contemplation of law, to be present in all his courts; but as that is impossible, he is there represented by his judges, whose power is only an emanation of the royal prerogative. There is one distinction that runs through all courts of justice; 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 authority that their truth is not to be called in question; nothing shall be averred against a record, nor shall Co. Litt. 260. any plea or even proof be admitted to the contrary. And if its existence be denied it shall be tried by nothing but itself; that is, upon bare inspection, whether there be any such record or If there appear to be any mistake of the clerk in making up the record, the court will direct him to amend it (a). no. (a) By 9 Geo, 4, c. 15, in cases where there is a variance between written or printed evidence, and the record, the court may order the record to be amended, on payment of record. Courts not of record, are such as the courts baron, incident Courts not of 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 not having any process to arrest the defendant. In every court there must be three constituent parts, the plaintiff who complains of an injury done; the defendant who is called upon to make satisfaction for it, and the judge 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 usual also in the superior courts to have attorneys and advocates, or counsel as assistants. 2 Inst. 311. costs. And by 3 & 4 Wm. 4, c. 42, s. 23, any court of record holding plea in civil actions, and any judge at nisi prius, may cause the record, writ, or document, on which any trial may be pending before any such court or judge in any civil action, or in any information in the nature of a quo warranto, or proceedings on a mandamus, when any variance shall appear between the proof and the recital, or setting forth on the record, writ, or document on which the trial is proceeding of any contract, custom, prescription, name, or other matter, in any particular in the judgment of such court or judge not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution, or defence, to be forthwith amended by some officer of the court, or otherwise, both in the part of the pleadings where such variance occurs, and in every other part of the pleadings which it may become necessary to amend, on such terms as to payment of costs to the other party, or postponing the trial, to be had before the same or another jury, or both payment of costs and postponement, as such court or judge shall think reasonable; and in case such variance shall be in some particular in the judgment of such court or judge not material to the merits of the case, but such as that the opposite party may have been prejudiced thereby in the conduct of his action, prosecution, or defence, then such court or judge may cause the same to be amended, upon payment of costs to the other party, and withdrawing the record, or postponing the trial, as such court or judge shall think reasonable; and after any such amendment, the trial shall proceed as if no such variance had appeared; and if such trial shall be at nisi prius, or by virtue of such writ as aforesaid, the order for the amendment shall be indorsed on the postea or the writ, and returned with the record or writ; and then the papers, rolls, and other records of the court from which such record or writ issued, shall be amended accordingly; and in case the trial shall be had in any court of record, then the order for amendment shall be entered on the roll, or other document, upon which the trial shall be had. Any party dissatisfied with such amendment, may apply to the court for a new trial on that ground; and if the court shall think fit, a new trial shall be granted. Of attornies. F. N. B. 25. Of advocates or counsel. 2 Inst. 214. cedence. An attorney at law answers to the procurator or proctor of the civilians and canonists. He is one who is put in the place, stead, or turn of another to manage his matters of law. Formerly every suiter was obliged to appear in person to prosecute or defend his suit, unless by license under the king's letters patent. This is still the law in criminal cases. But by statute Westm. 2, c. 10, an attorney may now prosecute or defend any action in the absence of the parties to the suit. No man can practise as an attorney in any of the courts of Westminster but such as is admitted and sworn an attorney of that particular court (b). To practise in the court of chancery it is necessary to be admitted a solicitor therein. And by 22 Geo. 2, c. 46, no person can act as an attorney at the quarter sessions, unless admitted in some superior court of record. Of advocates or counsel there are two degrees, barristers, and serjeants (c). Serjeants-at-law are bound by a solemn King's counsel. oath to do their duty to their clients; and, by custom, the judges of the courts of Westminster are always admitted into this venerable order before they are advanced to the bench; the origin of which was probably to qualify the puisnè barons of the exchequer to become justices of assize, according to the exigence of the statute 14 Edw. 3, c. 16. From both these degrees, some are selected to be king's counsel, the two principal of whom are called attorney and solicitor general, who must not be employed in any cause against the crown without Patent of pre- special license. A patent of precedence is sometimes granted to barristers, which entitles them to such rank and preaudience 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 Seld tit. hon. queen's attorney and solicitor-general), 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 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 ancient Roman orators. Those, indeed, practised gratis, or 1. 6. 7. the (b) By 1 & 2 Vict. c. 45, s. 3, any person admitted an attorney in one of the courts at Westminster may practise in any other court upon signing the roll of such court. (c) By 6 Geo. 4, c. 50, s. 2, practising barristers are exempted from serving on juries. OF COURTS IN GENERAL. for honor merely, or, at most, for the sake of gaining influence; and so it is established with us, that a counsel can maintain no action for his fees which are given, not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation. In order to encourage due Davis, 23. freedom of specch in the lawful defence of their clients, and at the same time to give a check to unseemly licentiousness, 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. And counsel Cro. Jac. 90. guilty of deceit or collusion are punishable by the statute Westminster 1, 3 Edw. 1, c. 28, with imprisonment and perpetual silence in the courts. Ray. 376. CHAPTER IV. OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY. mon law and THE courts of justice, which are acknowledged and used in Courts of comthis kingdom, are either such as are of public and general equity. 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. The lowest and the most expeditious court of justice in The court of resort to fairs or markets. It is a court of record incident to Y the stat. 337. |