scheme for a proportionate distribution of the assets among all the creditors hath been hitherto found to be impracticable, and productive of more mischiefs than it would remedy, so that the creditor who first commences his suit is entitled to a preference in payment; it follows that, as the executor can commence no suit, he must be paid the last of any, and of course must lose his debt, in case the estate of his testator should prove insolvent, unless he be allowed to retain it. The doctrine of retainer is therefore the necessary consequence of that other doctrine of the law, the priority of such creditor who first commences his action. 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; which he never could be supposed to have done while debts of a higher nature subsisted. Neither shall one executor be allowed to retain his own debt in prejudice to that of his co-executor in equal degree; but both shall be discharged in proportion. Nor shall an executor of his own wrong be in any case permitted to retain..

Remitter.

II. 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 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. 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.

Chapter III.

OF COURTS IN GENERAL.

Courts-Their Nature.

22-30.

A court is defined to be a place wherein justice is judicially administered. All courts of justice, which are the medium by which the king administers the laws, are derived from the power of the crown. In all these courts the king is supposed in contemplation of law to be always present; but as that is in fact impossible, he is there represented by his judge, 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 hath appointed a prodigious variety of courts, some with a more limited, others with

a more extensive jurisdiction. 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 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 and supereminent authority that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall 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 would be no end of disputes. 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, 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 it instantly a court of record. 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 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.

Three Constituents.

In every court there must be at least three constituent parts, the actor, reus, and juder, 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 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, stead, or turn of another, to manage his matters of law. Formerly every suitor was obliged to appear in person, to prosecute or defend his suit (according to the old Gothic constitution), unless by special license under the king's letters-patent. This is still the law in criminal cases. And an idiot cannot to this day appear by at

torney, but in person; for he hath not discretion to enable him to appoint a proper substitute: and upon his being brought before the court in so defenseless 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. But, it is now permitted in general, by divers ancient statutes, 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 in 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. No man can practice 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. So early as the statute 4 Hen. 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.

Of advocates, or (as we generally call them) counsel, there are two species or degrees; barristers, and serjeants. The former are admitted after a considerable period of study, or at least standing, in the inns of court; and are in our old books styled apprentices, apprenticii ad legem, 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, they might be called to the state and degree of serjeants. I shall only observe, that serjeants at law are bound by a solemn oath to do their duty to their clients; and that by custom the judges of the courts of Westminster are always admitted into this venerable order before they are advanced to the bench.

From both these degrees some are usually selected to be his majesty's counsel, the two principal being his attorney and solicitor-general. All serjeants and barristers, except in the Court of Common Pleas where only serjeants are admitted. may take up the defense of suitors, called clients. These practiced gratis; and so it was established that a counsel can maintain no action for his fees. To encourage freedom of speech in the lawful defense of their clients, it was held that a counsel is not answerable for any matter by him spoken relative to the cause, even if groundless, if suggested in his client's instructions; but if the untruth is his own invention, or if upon suggestion but not pertinent to the cause in hand, he is liable to an action from the party injured. Counsel guilty of deceit or collusion are punishable by statute.

Chapter IV.

OF THE PUBLIC COURTS OF COMMON LAW AND

Kinds of Courts.

EQUITY.
30-61.

We are next to consider the several species and distinctions of courts of justice which are acknowledged and used in the 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.

Courts of Common Law and Equity.

The policy of our ancient 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 neighbors 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.

Court of Piepoudre, Curia Pedis Pulverizati.

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, curia pedis pulverizati; 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 being derived, according to him, from pied puldreaux (a peddler, 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 has cognizance of all matters of contract that can possibly arise within the precinct of that fair or market; and the

plaintiff must make oath that the cause of action arose there. From this court a writ of error lies, in the nature of an appeal, to the courts of Westminster.

The Court-Baron.

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, 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 anciently 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 freehoders' 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 to forty shillings. But the proceedings on a writ of right may be removed into the county-court by a precept from the sheriff called a tolt. And the proceedings in all other actions may be removed into the superior courts. After judgment given, a writ also of false judgment 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.

Hundred-Court.

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 court-baron. It is, likewise no court of record; resembling the former in all points, except that in point of territory it is of greater jurisdiction. But this court is fallen into equal disuse with regard to the trial of actions. County-Court.

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. And, in modern times, as proceedings are removable into the king's su