CHAPTER II.

OF THE COURTS IN GENERAL.

[WE now proceed to consider the redress of injuries by action; and here it will not be improper to observe, that although, in the several cases of redress by the act of the parties mentioned in the previous chapter, the law allows an extra-judicial remedy, yet that does not exclude the ordinary remedy by action. Thus, though I may defend myself from external violence, I yet am entitled alternatively to an action of assault and battery; and 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 for their seizure and detention. I may either abate a nuisance by my own authority, or call upon the law to do it for me; and I may either distrain for rent, or have an action of debt for the amount. But before entering upon the nature and the varieties of actions, it is convenient to consider the courts themselves, their nature and incidents, and the varieties of them.

First, a court is defined to be a place wherein justice is judicially administered (a). All courts of justice are derived from the power of the Crown; for, whether created by Act of Parliament or letters patent, or subsisting by prescription, the only three methods by which any court of judicature can exist, the king's consent in the two former is expressly, and in the latter is impliedly, given (b). In all these courts, the king is supposed, in contemplation of law, to be always present, being represented by his judges, whose power is only an emanation from his royal

(a) Co. Litt. 58.

(b) Co. Litt. 260.

[prerogative. And for the more speedy, universal, and impartial administration of justice between subject and subject, the law hath appointed a variety of courts, some with a more limited, others with a more extensive, jurisdiction; some 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 of these courts are inferior and others superior; some have a jurisdiction at common law and some in equity, and some in both; others have an ecclesiastical or maritime jurisdiction only; and in others again, these various jurisdictions are combined. We shall consider all these varieties of courts in their respective places; but we may here mention one distinction that runs through them all, viz., that some of them are courts of record, and others not of record. A court of record is one whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the records of the court; and records are of such high and super-eminent authority, that their truth is not to be called in question. For nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary (c). 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 this rule does not prevent the court from enquiring, e.g., whether the record (in the case of a judgment debt) was based on no consideration, a matter which is often very material in bankruptcy (d); also, if there appear any mistake of the clerk in making up the record, the court will direct him to amend it.] And in general, all slips in legal proceedings (including records)

(c) Co. Litt. 260; sup. vol. I. p. 21.

(d) In re Tollemache (1885), 14 Q. B. D. 415, 606; In re

Lennox (1885), 16 Q. B. D. 316; Ex parte Scotch Whisky Distillers (1888), 22 Q. B. D. 83.

may be amended by an order of the court, to be obtained in a summary way (e).

[All courts of record being the courts of the king, in right of his crown and royal dignity (f), every court of record has authority to fine and imprison for contempt of its authority (9); so that the very erection of a new jurisdiction with the power of fine or imprisonment for contempt, makes it a court of record (h).] But in some courts of record, e.g., in county courts, this power is limited to contempts committed in facie curiæ, that is to say, to wilful insults to the judge, or to any juror or witness, registrar or other officer of the court, during his attendance in court, or in going to or returning from the court, and to wilful interruptions of the business of the court, and to wilful misbehaviour in court (i). [Courts not of record, on the other hand, are courts of inferior dignity, and in a less proper sense the king's courts, and these are not, as the general rule, intrusted by the law with any power to fine or imprison for contempt (j); and in these, the proceedings not being enrolled or recorded, as well their existence as the truth of the matters therein. contained, shall, if disputed, be tried and determined by a jury (k).

To every court there must be at least three constituent

(e) Ord. XXVIII. (1883), r. 11; Mellor v. Swire (1885), 30 Ch. D. 239; Staniar v. Evans (1886), 34 Ch. D. 470.

(f) Finch. L. 231.

(g) 8 Rep. 38 b; Hawk. b. 2, ch. 22, s. 1; Bac. Ab. Courts, E. ; R. v. Clement (1821), 4 B. & Ald. 218; R. V. Davison (1821), 4 B. & Ald. 329; R. v. James (1822), 5 B. & Ald. 894; Miller v. Knox (1838), 4 Bing. N. C. 574; Doe d. Cardigan v. Bywater (1849), 7 C. B. 794.

(h) Groenvelt v. Burwell (1700), Salk. 200; Ex parte Fernandez (1861), 10 C. B. (N.s.) 3; R. v. Castro (1873), L. R. 9 Q. B. 219.

(i) County Courts Act, 1888, ss. 162, 163, re-enacting like provisions in County Courts Act, 1846, s. 113, and County Courts Act, 1849, s. 2; Levy v. Moylan (1850), 10 C. B. 189; R. v. Lefroy (1873), L. R. 8 Q. B. 134.

(j) Dyson v. Wood (1824),

3 B. & C. 449.

(k) 2 Inst. 311; 8 Rep. 38 b; 11 Rep. 43 b.

[parts, the actor, the reus, and the 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 ascertain, and by its officers to apply, the remedy. It is also usual, in the higher courts, to have solicitors and counsel as assistants.]

cause.

Of solicitors and counsel we have already spoken elsewhere in this work (1); and we shall now only observe, with reference to their connection with courts of justice, that a solicitor answers to the procurator, or proctor, of the civilians and canonists, being one who is put in the place, stead, or turn of another, to manage his proceedings in a For this reason he used to be called an attorneyat-law, though the name of solicitor is now adopted by statute (m). [Formerly, every suitor was obliged to appear in person, to prosecute or defend his suit, unless by special licence under the king's letters patent; but, as in the Roman law (n), so with us, upon the principle of convenience,] it is now permitted, in general, that solicitors may prosecute or defend in the absence of the parties to the action. An infant sues by a next friend and defends by a guardian; and it is the next friend or the guardian. who appoints the solicitor (o). This rule used also to apply to married women, who sued by their next friends and defended with their husbands; but since the Married Women's Property Act, married women can sue or be sued without their husbands or next friends.

Solicitors are, as we have seen, now formed into a regular body [and are duly admitted to the execution of

() As to solicitors, ride sup. pp. 244-65; as to counsel, sup. vol. 1. pp. 6-8.

(m) Judicature Act, 1873, s. 87. () Inst. Lib. 4, tit. 10.

(0) Bro. Abr. tit. Ideot, 4; Co. Litt. 135 b; 2 Saund. 212, n (4); Beverley's Case (1603), 4 Rep. 123 b; Oulds v. Sansom (1810), 3 Taunt. 261; F. N. B. 25.

[their office. They are officers of the courts in which they practise; and as they have many privileges on account of their attendance there, so they are peculiarly subject to the animadversion of the judges.] Of advocates, or as we otherwise generally call them, counsel, there formerly were two species or degrees, namely, barristers and serjeants. Barristers are admitted after a period of study, in the Inns of Court, and (in our old books) are styled "apprentices,' apprenticii ad legem, not having been deemed qualified to execute the full office of an advocate till they were of sixteen years' standing; at which time, according to Fortescue, they might be called to the state and degree of serjeants, or servientes ad legem (p). How antient and honourable the degree of serjeant was, hath been so fully displayed by many learned writers, that it need not be here enlarged on(); it is sufficient to observe, that serjeants at law were bound, by a solemn oath, to do their duty to their clients (r). It used also to be the custom for the judges to be admitted into this venerable order before they were advanced to the bench (s); the original of which was probably to qualify the barons of the exchequer to become justices of assize (t). But the necessity for this rule has now ceased, and with it the custom, it having been enacted, by the Judicature Act, 1873, s. 8, that no person appointed a judge, either of the High Court of Justice or of the Court of Appeal, shall be required to take or to have taken the degree of serjeant at law. And no serjeants have in fact been created since the year 1875.

[From among the general body of counsel some are from time to time selected, who (on the nomination of the lord

(p) De LL. c. 50.

(9) See Fortesc. ch. 50; 10 Rep. pref.; Dugdal. Orig. Jurid. ; Case of the Serjeants, 1840 (6 Bing. N. C. 235); a tract by Serjeant Wynne, printed in 1765, entitled Observations touching the Antiquity and Dignity of the Degree of Serjeant

at Law; and the treatise called Serviens ad Legem, by Mr. Serjeant Manning.

(r) 2 Inst. 214.

(8) Fortesc. ch. 50.

(t) 14 Edw. 3 (1340), st. 1,

c. 16.