a horse, and fail in it; this is an injury for which the sufferer may have his remedy by action; but if the injured party accepts a sum of money, or other thing, as a satisfaction, this is a redress of that injury, and entirely takes away the action.

II. Arbitration is where the parties, injuring and injured, submit all matters in dispute to the judgment of two or more arbitrators, who are to decide the controversy; and if they do not agree, it is usual to add, that another person be called in as umpire, imperator or impar, to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right claimed transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice.

Secondly. Of that redress which is effected by the mere operation of law. Of this there are two instances only: retainer and remitter.

I. If a person indebted to another makes his creditor his executor, or if such creditor obtains letters of administration to his debtor; in either case the law allows him to retain so much as will pay himself. For the executor cannot, without an apparent absurdity, ccmmence a suit against himself as representative of the deceased, to recover that which is due to him in his own private capacity; but, having the whole personal estate in his hands, so much as is sufficient to answer his own demand is, by operation of law, applied to that particular purpose. 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. And an executor of his own wrong is in no case permitted to retain.

II. Remitter is where he who has the true property or jus proprietatis in lands, but is out of possession thereof, and cannot recover possession without an action, has 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. The reason given by Littleton, 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 has 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 adjudges him in by remitter; that is, in such plight as if he had lawfully recovered the game land by suit.

Thirdly. Of the redress of injuries by suit in court.

Herein 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 already mentioned, the law allows an extra-judicial remedy, yet that does not exclude the ordinary course of justice. Though I may defend myself from external violence, I yet am entitled to recover damages for the assault; 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: I may either abate a nuisance by my own authority, or call upon the law to do it for me. And with regard to accords and arbitrations, these 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 administered by suit or action.

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 court, I shall 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.

A court is defined to be a place wherein justice is judicially administered. And, as the sole executive power of the laws is vested in the sovereign, it follows that all courts of justice, the medium by which the sovereign administers the laws, are derived from the crown. For, whether created by act of parliament, or letters patent, or subsisting by prescription, the consent of the crown in the two former is expressly, and in the latter impliedly, given. In all these courts the sovereign is supposed to be always present; but as that is in fact impossible, the crown is there represented by the judges, whose power is only an emanation of the royal prerogative.

For the more speedy, universal, and impartial administration of justice between subject and subject, the law has appointed a prodigious variety of courts, some with a more limited, others with a

more extensive jurisdiction. These 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 them are courts of record, others not of record.

A court of record is defined to be that where the acts and judicial proceedings are enrolled or recorded: 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 can be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. 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 will be no end of disputes. All courts of record also are the courts of the sovereign, in right of the crown and royal dignity, and no other court has authority to fine or imprison, unless it be expressly conferred by the legislature.

A court not of record is defined to be 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 courtsbaron incident to every manor, and such other inferior jurisdictions: where the proceedings are not enrolled or recorded; but as well their existence as their truth shall be tried and determined by a jury. But this definition is to be understood as applicable to courts not of record existing at the common law; for the court of Chancery in Equity, and the Spiritual Courts among others, are courts not of record; while the new county courts and courts of bankruptcy, which are inferior courts, are expressly constituted courts of record.

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 ascertion, 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 or turn of another, to manage his matters of law. Formerly every suitor was obliged to appear in person, unless by special license under letters patent. This is still the law in criminal cases. But, it is now permitted in general, by divers statutes, whereof the first is Westm. 2, c. 10, that attorneys may be made to prosecute or defend any action in the absence of the parties. The attorneys are now

admitted to the execution of their office by the superior courts; and are in all points officers of the courts in which they are admitted. They are privileged, on account of their attendance there, from serving on juries, and from being arrested on civil process, eundo morando et redeundo; and they are, on the other hand, peculiarly subject to the censure and animadversion of the judges in the exercise of their professional duties.

Of advocates, or, as we generally call them, counsel, there are two species or degrees: barristers, and serjeants. The former are admitted, after three years' standing, in the inns of court; and are, in our old books, styled apprentices, apprenticii ad legem, having been at that time looked upon as merely learners, and not qualified to execute the office of an advocate till they were of considerable standing. A barrister of seven years' standing may be called to the degree of serjeant, a separate body at the bar, bound by a solemn oath to do their duty to their clients: and into which order the judges of the courts of Westminster are always admitted before they are advanced to the bench. From both these degrees some are selected to be her majesty's counsel learned in the law: the two principal of whom are called her attorney and solicitor general. They must not be employed in any cause against the crown without special license, which, however, is never refused. Together with the serjeants, they sit within the bar of the respective courts. All of them 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 practised gratis, for honour merely, or at most for the sake of gaining influence and with us 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. And, in order 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 honourable profession, it has been held 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.

CHAPTER II.

OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY.

I. Court of Piepoudre-II. Court Baron-III. Hundred Court-IV. Shiremote -V. New County Court-VI. Common Pleas VII. Queen's Bench— VIII. Exchequer-IX. Exchequer Chamber-X. Chancery- XI. RollsXII. Vice-Chancellor's Courts-XIII. Court of Appeal in ChanceryXIV. House of Lords-XV. Courts of Nisi Prius.

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 or special jurisdiction in some particular parts of it. And, first, of such public courts as are courts of common law and equity.

The policy of our ancient constitution, as established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts as there were manors in the kingdom; wherein injuries were redressed in an 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 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. These inferior courts still continue in our legal constitution; but as the superior courts obtained, at a very early period in our history, a concurrent original jurisdiction with them, these petty tribunals soon fell into decay, and have now fallen almost into oblivion.

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 ;* so called from the dusty feet of the suitors; or, according to Sir Edward Coke, because justice is there done as speedily as dust can fall from the foot. It is now entirely obsolete.

II. The court-baron is a court incident to every manor in the kingdom; it is usually holden by the steward, and is of two natures; the one a customary court, appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance; the other, a court of common law, held before the tenants who owe Knight's "Once upon a Time," c. "Items of the Obsolete:" London, 1857.

*