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the court, unless such award be set aside for misbehavior or corruption of the arbitrators, proved on oath to the court, within one term after the award be made.
CHAPTER II.—REDRESS BY OPERATION OF LAW.
1. Retainer. If a debtor make his creditor his executor, or if he becomes his administrator, the law allows him to retain enough to pay himself, before any other creditor of equal degree. The reason being, that an executor cannot sue himself as a representative of the deceased to recover what is due him in a private capacity, but having the whole personal estate in his hands, he may apply part of it to that purpose. Otherwise he would be placed in a worse position than other creditors. For though a ratable distribution of the assets among the creditors is the most equitable method, yet, as every such scheme has hitherto been found impracticable and productive of mischief, so that the creditor who first commences suit is entitled to a preference in payment, it follows that the executor who cannot commence suit must be paid the last of any, and, if the estate be insolvent, will receive nothing, unless he be allowed thus to retain it. The doctrine of retainer is the necessary consequence of the other doctrine, the priority of such creditor who first commences the action."
Co-Executors. But the executor shall not retain his debt to the prejudice of those of a higher degree. Nor shall one executor have preference over a claim of equal degree of a coexecutor ; they shall both be proportionately discharged. Nor shall an executor de son tort be permitted to retain.
11. Remitter. This is where he who had the true property in lands, is out of possession thereof, and has no right to enter without recovering possession in an action, but afterwards the freehold is 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 has gained by a bad title, shall be ipso facto annexed to his own inherent good one, and his defeasible estate shall be annulled by act of law, without his participation. For he has hereby gained a new right of possession, to which the law immediately annexes his ancient right of property. If the subsequent 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. The taking such subseqnent estate was his own folly, and is deemed a waiver of his prior right.
1 This is not the law in the United States. Debts of equal degree are paid ratably, and the executor has no such preference.
Incidents. To every remitter there are these 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, and not gained by his own act or folly. 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 does adjudge him in by remitter, that is, in such plight as if he had recovered the same land by suit. But there shall be no remitter to a right, for which the party has no remedy by action.
CHAPTER III.—COURTS IN GENERAL.
Concurrent Remedies. Even where the law permits an extrajudicial remedy, it does not exclude the ordinary course of justice. Though at the time I may defend myself, yet afterwards I may prosecute for assault and battery; though I peaceably retake my goods, yet I may bring my action of trover or detinue; though I may enter on lands, where I have a right of entry, yet I may demand possession in a real action. I may myself abate a nuisance, or call upon the law to do it for me. I may distrain for rent, or have an action for debt, at my option. If I do not distrain my neighbor's cattle, damage feasant, I may compel him by action of trespass to give satisfaction. I may refuse accord or arbitration, and obtain redress in some other
Mere Operation of Law. But as to remedies by mere operation of law, they are given, because no remedy can be ministered by suit or action, without running into the absurdity of a man bringing an action against himself. In all other cases, where there is a legal right, there is a legal remedy, by suit or action at law, whenever that right is invaded.
Courts and Jurisdiction. 1. Courts of justice, their nature and species.
2. Injuries cognizable in each species of court.
Courts of Justice. A court is a place where justice is judicially administered. In England the power of the judges is an emanation of the royal prerogative.
Jurisdiction. Some courts have a more limited jurisdiction than others. Some are constituted to inquire only; others to hear and determine; some to determine in the first instance, others upon appeal and by way of review. Some are courts of record; some, not of record.
Courts of Record. A court of record is one, where the acts and judicial proceedings are enrolled for a perpetual testimony. The records are of such high authority, that their truth is not to be called into question. It is a settled rule, that nothing shall be averred against a record, nor shall any plea or proof be admitted to the contrary. If its existence be denied, it shall be tried by nothing but itself, that is, upon bare inspection, whether there be such record or not, else there would be no end. of disputes. If there appear to be a mistake of the clerk in making up such record, the court will direct him to amend it.
Courts Not of Record, Such is the court of a private man in England, as courts baron, incident to every manor."
Attorneys. Beside the actor or plaintiff, the reus or defendant and the judex or judicial power, every court has its attorneys, who answer to the procurators or proctors of the civilians and canonists. An attorney ts one who is placed in the stead or turn of another to manage his matters of law. Formerly every suitor prosecuted or defended his suit in person, unless by special license. No man can practice as an attorney, but such as is admitted and sworn as an attorney of that particular court.3
1 Exception, where fraud is charged.
3 In the United States, he may be admitted on motion to try a particular case, in another court of equal jurisdiction to the one in which he is accustomed to practice.
English Advocates. In England, there are two species or degrees : barristers and serjeants. The former are admitted after a course of study, the latter after a long term of years of practice as barristers. Suitors are termed clients, like the dependents upon the Roman orators. In England, a counsel cap maintain no action for his fees. The fee is deemed an honorarium. It has been held, that a counsel is not answerable for any matter by him spoken relative to the case 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, he is liable. Counsel guilty of deceit or collusion are punishable.
CHAPTER IV.—COURTS OF COMMON LAW AND EQUITY.
Kinds, 1. Of public and general jurisdiction.
Courts of Public Jurisdiction. Four kinds: Common law and equity, ecclesiastical courts, courts military, courts maritime. The courts in their jurisdiction ascend gradually from the lowest to the supreme courts, which were constituted to correct the errors of the inferior ones. Of late years the more petty tribunals have fallen into decay.
1. Piepoudre. The courts of piepoudre, or the dusty feet of suitors, are the lowest tribunals. It is a court of record incident to fairs and markets, in which the steward who owns the toll of the market is the judge.
2. Court Baron. The court baron is incident to every manor, and is held by the steward within the said manor: It is not a court of record.?
3. Hundred Court. The hundred court is only a larger court baron, and likewise is not a court of record.
? In the United States, he may claim a stipulated fee or a quantum meruit for his services.
4. County Court. The county court is incident to the jurisdiction of the sheriff. It is not a court of record.
5. Court of Common Pleas or Common Bench. Under the Saxon constitution there was only one superior court, the wittena-gemote, or general council. This great universal court in time ceased to follow the king, and was established in Westminister Hall. Its jurisdiction was to hear and determine all pleas of land and injuries merely civil, between subject and subject. This gave rise to the inns of court in its neighborhood, in which the body of common lawyers was established.
Pleas. Pleas or suits are divided into two sorts : pleas of the crown, which comprehend all crimes and misdemeanors, wherein the king is the plaintiff, and common pleas, which include all civil actions depending between subject and subject. The former of these belonged to the jurisdiction of the court of king's bench, the latter to that of the court of common pleas, which is a court of record, and is styled by Coke the lock and key of the common law, for herein only can real actions, that is, actions which concern the right of freehold, or the realty, be originally brought, and all other or personal pleas between man and man determined, though, in most of them, the king's bench has also a concurrent authority. The judges hear and determine all matters of law arising in civil cases, real and personal. These it takes cognizance of, as well originally as upon removal from inferior courts. A writ of error, in the nature of an appeal, lies from this court to the court of the king's bench.
6. Court of King's Bench. This is so called because the king was accustomed formerly to sit there in person. It is the supreme court of common law in England. The whole judicial authority of this court is in the mouth of the judges. This court is a remnant of the aula regia, which was not located at any one place, but followed the king wherever he went. For centuries, however, it has been located at Westminster. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below. It superintends all civil corporations. It commands magistrates and others to do their duty in all cases, where there is no other specific remedy. · It protects the liberty of the subject by speedy and summary interposition. It takes cognizance of both criminal and civil causes, the former in the crown side of the court, the latter in its plea side.