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remitter to a right, for which the party has no remedy by action: as if the iffue in tail be barred by the fine or warranty of his ancestor, and the freehold is afterwards caft upon him; he fhall not be remitted to his eftate tail: for the operation of the remitter is exactly the fame, after the union of the twa rights, as that of a real action would have been before it. As therefore the iffue in tail could not by any action have recovered his antient eftate, he shall not recover it by remitter.

AND thus much for thefe extrajudicial remedies, as well for real as perfonal injuries, which are furnished or permitted by the law, where the parties are so peculiarly circumstanced, as not to make it eligible, or in fome cafes even poffible, to apply for redress in the ufual and ordinary methods to the courts of public juftice.

k Co Litt 349.

1 Moor. 115.

I Ann. 286.

CHAPTER THE THIRD.

OF COURTS IN GENERAL.

HE next, and principal, object of our enquiries is the redress of injuries by fuit in courts: wherein the act of the parties and the act of law co-operate; the act of the parties being neceffary to fet the law in motion, and the procefs of the law being in general the only inftrument, by which the parties are enabled to procure a certain and adequate redrefs.

AND here it will not be improper to observe, that although, in the feveral cafes of redress by the act of the parties mentioned in a former chapter 2, the law allows an extrajudicial remedy, yet that does not exclude the ordinary course of justice: but it is only an additional weapon put into the hands. of certain perfons in particular inftances, where natural equity or the peculiar circumstances of their fituation required a more expeditious remedy, than the formal procefs of any court of judicature can furnish. Therefore, though I may defend myself, or relations, from external violence, I yet am afterwards entitled to an action of affault and battery: 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 of trover or detinue: I may either enter on the lands, on which I have a right of entry, or may demand poffeffion by a real action: I may either abate a nusance by my own authority, or call upon the law to do it for me: I may diftrein for rent, or have an action of debt, at my own

a ch. 1.

option:

Book III. option: If I do not distrein my neighbour's cattle damage, feafant, I may compel him by action of trespass to make me a fair fatisfaction: if a heriot, or a deodand, be withheld from me by fraud or force, I may recover it though I never feifed it. And with regard to accords and arbitrations, thefe, in their nature being merely an agreement or compromise, most indisputably suppose a previous right of obtaining redrefs fome other way, which is given up by fuch agreement, But as to remedies by the mere operation of law, those are indeed given, because no remedy can be miniftred by fuit or action, without running into the palpable abfurdity of a man's bringing an action against himself: the two cafes wherein they happen being fuch, wherein the only poffible legal remedy would be directed against the very person himfelf who feeks relief.

In all other cafes it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by fuit or action at law, whenever that right is invaded. And, in treating of thefe remedies by fuit in courts, I fhall purfue the following method: first, I fhall confider the nature and feveral fpecies of courts of juftice: and, fecondly, I fhall 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 refpective fpecies of courts.

FIRST then, of courts of justice. And herein we will confider, first, their nature and incidents in general; and, then, the feveral fpecies of them, erected and acknowleged by the laws of England.

A COURT is defined to be a place wherein juftice is judicially administered. And, as by our excellent conftitution the fole executive power of the laws is vefted in the perfon of the king, it will follow that all courts of justice, which are

b Co. Litt. 58.

the

the medium by which he adminifters the laws, are derived from the power of the crown. For whether created by act of parliament, or letters patent, or fubfifting by prefcrip tion, (the only methods by which any court of judicature can exift) the king's confent in the two former is expressly, and in the latter impliedly, given. In all these courts the king is fuppofed in contemplation of law to be always prefent; but as that is in fact impoffible, he is there represented by his judges, whofe power is only an emanation of the royal prerogative.

FOR the more fpeedy, univerfal, and impartial adminiftration of justice between fubject and fubject, the law hath appointed a prodigious variety of courts, fome with a more limited, others with a more extensive jurisdiction; fome constituted to inquire only, others to hear and determine: fone to determine in the firft inftance, others upon appeal and by way of review. All these in their turns will be taken notice of in their respective places: and I fhall 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 teftimony: which rolls are called the records of the court, and are of such high and fupereminent authority, that their truth is not to be called in question. For it is a fettled rule and maxim that nothing fhall be averred against a record, nor fhall 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 fuch record or no ; else there would be no end of difputes. But, if there appear any mistake of the clerk in making up fuch 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

e See book I. ch. 7.

d Co. Litt. 260.

e Ibid.

f Finch. L. 231.

hath

hath authority to fine or imprifon; fo that the very erection [25] of a new jurifdiction with power of fine or imprisonment

makes it inftantly a court of records. A court not of record is the court of a private man; whom the law will not intrust with any difcretionary power over the fortune or liberty of his fellow-fubjects. Such are the courts-baron incident to every manor, and other inferior jurifdictions: 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. Thefe 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 procefs to arreft the perfon of the defendant ".

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 fatisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arifing upon that fact, and, if any injury appears to have been done, to ascertain and by it's officers to apply the remedy. It is alfo ufual in the fuperior courts to have attorneys, and advocates or counfel, as affiftants.

An attorney at law anfwers to the procurator, or proctor, of the civilians and canonists. And he is one who is put in the place, ftead, or turn of another, to manage his matters of law. Formerly every fuitor was obliged to appear in perfon, to profecute or defend his fuit, (according to the old Gothic conftitution *,) unlefs by special licence under the king's letters patent. This is ftill the law in criminal cafes. And an idiot cannot to this day appear by attorney, but in perfon"; for he hath not difcretion to enable him to appoint

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