CHAPTER II. OF REDRESS BY THE MERE OPERATION OF LAW. 1. What are the remedies for private wrongs, which are effected by the mere operation of law ?-18. Only two that of retainer, where a creditor is made executor or administrator to his debtor; the other in case of what the law calls a remitter. 2. What is retainer ?-18. If a person indebted to another makes his creditor his executor, or if such creditor obtains letters of administration to his debtor, in these cases the law gives him a remedy for his debt, by allowing him to retain so much as will pay himself, before any other creditors whose debts are of equal degree. 3. Upon what is this remedy by retainer grounded?-18. It is grounded on this reason, that the executor or administrator cannot, without an apparent absurdity, commence a suit against himself as representative of the deceased, to recover that which is due to him in his own private capacity, and so is in a worse condition than all the rest of the world. This doctrine of retainer is the necessary consequence of that other doctrine of the law, the priority of such creditor who first commences his action. 4. May the executor retain his own debt in prejudice to those of a higher degree?-19. He shall not; 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. 5. What is a remitter?-19, 20. Remitter is where he who hath the true property, or jus proprietatis, in lands, but is out of possession thereof, and hath no right to enter without recovering possession in an action, hath afterward 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 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. 6. But what if the subsequent estate, or right of possession, be gained by a man's own act or consent?—20. Then 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. 7. What are the incidents to a remitter ?-20. To every remitter there are regularly three incidents; an ancient 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. 8. What is the reason why this remedy of remitter to a right was allowed?-20. 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. 9. But what if the party hath no remedy by action ?—21. Then there shall be no remitter to a right. CHAPTER III. OF COURTS IN GENERAL. 1. What is that redress of injuries wherein the act of the parties and the act of law co-operate?-22. The redress of injuries by suit in courts; the act of the parties being necessary to set the law in motion, and the process of the law, being, in genera, the only instrument by which the parties are enabled to procure a certain and adequate redress. 2. Where the law allows an extra-judicial remedy does that exclude the ordinary course of justice?-22. It does not; 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 formal process of any court of justice can furnish. 3. Do accords and arbitrations suppose a previous right of obtaining redress some other way ?—23. Yes, being in their nature merely an agreement or compromise, they most indubitably suppose a previous right of obtaining redress some other way; which is given up by such agree ment. 4. Why are the remedies by the mere operation of law given?—23. Because no remedy, there, can be administered by suit or action, without running into the palpable absurdity of a man's bringing an action against himself. 5. In all other cases, what general and indisputable rule is there? -23. That where there is a legal right there is also a legal remedy by suit or action at law, whenever that right is invaded. 6. What is a court?-23. It is defined to be a place wherein justice is judicially administered. 7. Whence are all courts of justice derived?-24. From the power of the crown. 8. What distinction runs throughout all courts of justice ?-24. That some of them are courts of record; others not of record. 9. What is a court of record?—24, 25. A court of record is that where the acts and judicial pro ceedings are enrolled in parchment for a perpetual memorial and testimony; which rolls are called the records of the court, and are of such high and super-eminent authority, that their truth is not to be called in question. 10. What settled rule or maxim is there as to records ?—-24. That nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. 24. 11. If the existence of a record be denied, how shall it 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. 12. If there appear any mistake of the clerk in making up such record, how shall it be amended?—24. The court will direct him to amend it. 13. Are all courts of record the king's courts, and what follows from this ?-24, 25. They are, in right of his crown and royal dignity; 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 and imprisonment makes it instantly a court of record. 14. What is a court not of record ?—25. 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, and other inferior jurisdictions, where the proceedings are not enrolled or recorded. 15. How is the existence of courts not of record, as well as the truth of matters contained in their proceedings, tried and determined? -25. If disputed, they shall be tried and determined by a jury. 16. What constituent parts are there in every court?—25. every court there must be at least three constituent parts, In 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 satisfation 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 officers to apply, the remedy. 17. What usual assistants have the superior courts ?—25. Attorneys, and advocates or counsel. 18. What is an attorney at law ?—25. He is one who is put in the place, stead, or turn of another, to manage his matters of law. 19. Who cannot appear in court by attorney?—25. Defendants in criminal cases, and idiots. 20. Why cannot an idiot appear by attorney?—25, 26. Because he hath not discretion to enable him to appoint a proper substitute: upon his being brought before the court in so defenceless a condition, the judges are bound to take care of his interests. 21. Of what degrees are advocates or counsel ?—26. Two barristers and sergeants. 22. Can a counsel maintain an action for his fees?—28. He cannot. 23. Why not?-28. Because his fees are given not as locatio vel conductio, but as quiddam honorarium; not as a salary or hire, but as a mere gratuity, which a counselor cannot demand without doing wrong to his reputation. 24. How far have counsel liberty of speech ?-28. 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 |