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A court, how defined.

cases wherein they happen being such, that the only possible legal remedy would have to be directed against the very person who seeks relief.

Otherwise, however, it is a rule, that where there is a legal right, there is a legal remedy, by suit in court or by application to a court of justice, whenever that right is invaded. And in treating of such remedy, I shall now consider the nature of courts in general; and shall afterwards inquire as to the several species of courts, the jurisdiction of each, and the method of obtaining the redress which it affords.

A court is defined to be a place wherein justice is judicially administered (6). (438) And, as by our constitution the sole executive power of the

laws is vested in the person of the sovereign, courts of justice,

which are the medium by which he administers the laws, are derived from the power of the crown (c). For, whether created by act of parliament, or letters patent, or subsisting by prescription (the only methods by which any court of judicature can exist (d)), the royal consent in the two former is expressly, and in the latter is impliedly, given. *In these

[ * 21 ] courts the sovereign is supposed in contemplation of law to be always present; or at least is there represented by the judges, whose power is but an emanation of the prerogative.

For the more speedy and impartial administration of justice between subject and subject, the law has appointed various 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. These will be taken notice of in their respective places: and here one distinction only that runs throughout them need be noticed;

viz. between courts of record and courts not of record. A court Of record:

of record is that whose acts and judicial proceedings are enrolled 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. (439) For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or (6) Co. Litt. 58.

(d) Co. Litt. 260. (c) See Bk. I. chap. 7.

(438) The term “place,” as given in this definition, must be understood as embracing more than the mere idea of locality, if the definition itself is to be retained and applied to the word court in its modern signification. In these days the term “court” is applied as well to those who administer justice as to the place where it is administered ; and the judges who preside at the place of meeting are often called the court. A court has been defined as "an organized body with defined powers, meeting at certain times and places for the hear. ing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz., attorneys and counsel to present and inanage the busi. ness, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure due order in its proceedings." See Burrill's Dict.; 1 Wait's Pr. 221.

Where an authority is created by statute, with power to fine or imprison, the officer, per. son or body invested with such authority is, for that purpose, deemed a court. Case of the Twelve Commitments, 19 Abb. Pr. 394; Briggs v. Mackellar, 2 id. 30, 61.

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(439) It is not easy to give a satisfactory definition to the term “court of record.” It has been held that a court of record is one which has jurisdiction to fine or imprison, or one having jurisdiction of civil cases above forty shillings, and proceeding according to the course of the common law. Woodman v. Somerset, 87 Me. 29. It has also been defined as a court, or judicial, organized tribunal, having attributes and'

Vol. II. - 3

even proof, unless where fraud is involved, be admitted to the contrary (e). (440) 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 said to be the queen's courts, in right of her crown and royal dignity (f), and no other court has authority to fine or imprison for a contempt; so that the very erection of a new jurisdiction with such power makes it a court of record (g).

(e) Co. Litt. 260.

(f) Finch. L. 231.

(g) Groenvelt v. Burwell, Salk. 200; Gren

ville v. Coll. of Physicians, 12 Mod. 388. See Inhabitants of Oldbury v. Stafford, 1 Sid. 145.

exercising functions, independently of the person of the magistrate designated generally to hold it. Ex parte Gladhill, 8 Metc. (Mass.) 168, 170.

Whether a court is or is not a court of record does not depend upon the fact that it does or does not keep a record of its proceedings, or that it is or is not required by law to do so. Woodman v. Somerset, 37 Me. 29.

In a number of cases it has been intimated that a court which does not proceed according to the course of the common law, but derives its authority wholly from statute, is not a court of record. Snyder v. Wise, 10 Penn. St. 157.

A court may be a court of record for some purposes and not for others. Wheaton v. Fellows, 23 Wend. 375; Lester v. Redmond, 6 Hill, 590; Ex parte Gladhill, 8 Metc. (Mass.) 168; Thayer v. Commonwealth, 12 id. 9; Mowry v. Cheeseman, 72 Mass. (6 Gray) 515.

(440) It is a general rule that no averment is admissible to contradict a judgment, or to dispute any legitimate inference deducible therefrom. White v. Merritt, 7 N. Y. (3 Seld.) 352; Davis v. Tallcot, 12 N. Y. (2 Kern.) 184.

But this rule does not estop a party from impeaching a domestic judgment obtained through fraud. People v. Mayor, etc., of New York, 19 How. 289; Lowber v. Mayor, etc., of New York, 26 Barb. 265; Denton v. Denton, 41 id. 221; Whetstone v. Whetstone, 31 Iowa, 276; Cowin v. Toole, id. 513; Ellis v. Kelly, 8 Bush (Ky.), 621.

Whether or not the judgment of one State can be attacked for fraud in obtaining it in the courts of another State is not well settled. That such fraud is not a good common-law defense, see Christmas v. Russell, 5 Wall. 290; Benton v. Burgott, 10 Serg. & Rawle, 240; Anderson v. Anderson, 8 Ohio, 108; Sanford v. Sanford, 28 Conn. 6, 28; M'Rae v. Mattoon, 13 Pick. 53.

That a foreign judgment may be impeached for fraud, see Engel v. Scheuerman, 2 Am. Rep. 573; 40 Ga. 206; Dunlap v. Cody, 7 Am. Rep. 129; 31 Iowa, 260; Rogers v. Gwinn, 21 id. 58; Kerr v. Kerr, 41 N. Y. (2 Hand) 272; Hoffman v. Hoffman, 46 N. Y. (1 Sick.) 30.

That a foreign judgment may be impeached for want of jurisdiction appearing from the record, see Davis v. Headley, 22 N. J. Eq. 115.

That statements in the record of the judgment of a court of another State of facts which, if true, gave that court jurisdiction, may be shown to be untrue, see Hoffman v. Hoffman, 46 N. Y. (1 Sick.) 30; Kerr v. Kerr, 41 N. Y. (2 Hand) 272; Carleton v. Bickford, 13 Gray, 591; Folger v. Columbian Ins. Co., 99 Mass. 267; Rape v. Heaton, 9 Wis. 328; Norwood v. Cobb, 24 Texas, 521; Christmas v. Russell, 5 Wall. 290.

To the contrary, see Newcomb v. Peck, 17 Vt. 302; Lapham v. Briggs, 27 id. 26; Wilcox v. Kassick, 2 Mich. 165; Wilson v Jackson, 10 Mo. 329; Wetherill v. Stillman, 65 Penn. St. 105; Westcott v. Brown, 13 Ind. 83; Lincoln v. Tower, 2 McLean, 473; Roberts v. Caldwell, 5 Dana, 512.

Whether notice was given to the defendant of the pendency of the action is always open to inquiry. Christmas v. Russell, 5 Wall. 290.

And in all cases the courts of the State in which a judgment of a court of another State is sought to be enforced have a right to inquire how far the judgment presented may be conclusive in the State in which it was rendered. McLaren & Co. v. Kehler, 8 Am. Rep. 591; 23 La. Ann. 80.

may be

As exemplifying the nature of a court not of record *

[* 22 ] instanced the court-baron incident to a manor, where the proceedings

are not enrolled or recorded; but as well their existence as the not of record,

truth of the matters therein contained may, if disputed, be tried and determined by a jury.

In every court there must be three constituent parts, the actor, reus, and judex: the actor, or plaintiff, who complains of an injury done; the reus, or Its constituent

defendant, who is called upon to make satisfaction for it; and parts.

the judex, or judicial power, whose duty it 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 a court of justice to have attornies or solicitors, and advocates or counsel, as assistants.

An attorney at law, or a solicitor, answers to the procurator, or proctor, of the civilians and canonists (h), and is one put in the place, stead, or turn of

another, to manage his matters of law. Formerly every suitor Attornies.

was obliged to appear in person, to prosecute or defend his suit, unless by special licence under the king's letters patent (i). And an idiot cannot at this day appear by attorney, but must do so in person (k), for he has not discretion to enable him to appoint a proper substitute. But, as in the Roman law, cum olim in usu fuisset, alterius nomine agi non posse, sed, quia hoc non minimam incommoditatem habebat, coperunt homines per procuratores litigare" (1), so with us, upon the same principle of convenience, it was permitted in general, by divers ancient statutes, whereof the first was statute Westm. 2, c. 10, that an attorney might be made to prosecute or defend any action in the absence of the parties to the suit. These attornies are now formed into a regular corps; they are admitted to the * execution of their office by the superior courts of law and equity; and are officers of

[ * 23] the respective courts in which they are submitted to practice: 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 (m). The duty of an attorney towards his client flows from his retainer, and he is liable for gross negligence in conducting the business which he undertakes (n). (441)

(h) Pope Boniface VIII. in 6 Decretal. 1. 3, solidated by the 6 & 7 Vict. c. 73, and has t. 16, s. 4, speaks of procuratores " qui in been amended by stats. 7 & 8 Vict. c. 86; 14 aliquibus partibus attornati nuncupantur." & 15 Vict. c. 88; 23 & 24 Vict, c. 127. (1) F. N. B. 25.

(n) Fray v. Voules, 1 E. & E. 839; Prest. (k) Ibid. 27.

wich v. Poley, 18 C. B., N. S. 806 ; Chown v. (2) Inst. 4, tit. 10.

Parrott, 14 Č. B., N. S. 74. (m) The law relating to attornies was con

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(441) Whenever an attorney disobeys the lawful instructions of his client, and a loss ensues, for that loss the attorney is responsible. Gilbert v. Williams, 8 Mass. 51 ; Cox v. Livingston, 2 Watts & Serg. 103; Wilcox v. Plummer': Ex'rs, 4 Peters, 172.

But it is a fair presumption that an attorney acts according to his instructions, unless in a case of such gross negligence that a violation may be inferred. Holmes v. Peck, 1 R. I. 242.

An attorney is responsible for the want of or the neglect to use ordinary skill and care in the exercise of his profession. Holmes v. Peck, 1 R. I. 242 ; Walpole v. Carlisle, 32 Ind. 415; Stedens v. Walker, 55 III. 151; O'Barr v. Alexander, 37 Ga. 195; Hill v. Barney, 18 N. H. 607.

But he will not be held responsible if he acts with a proper degree of attention, with reasonable care, and to the best of his skill and knowledge. Gilbert v. Williams, 8 Mans. 51 ; Stedens v. Walker, 55 III. 151.

Counsel.

*

sworn

Of advocates, or (as we generally call them) counsel, there are two species or degrees; barristers, and serjeants. The former are admitted, subject to

regulations before noticed (o), by the inns of court; and are in

our old books styled apprentices, apprenticii ad legem, having been formerly looked upon as merely learners, and not qualified to execute the full office of an advocate till they were of sixteen years' standing; at which time, according to Fortescue (p), they might be called to the state and degree of serjeants (), or servientes ad legem.

From amongst members of the outer bar some are from time to time selected to be her majesty's counsel learned in the law: the two principal of whom are called her attorney, and solicitor-general. The first king's counsel, under the degree of serjeant, was sir Francis Bacon, who was made so honoris causa, without either patent or fee (r); so that the first of the modern order (who

are now the [ *24]

servants of the crown, with a nominal standing salary) seems to have been sir Francis North, afterwards Lord Keeper of the Great Seal to King Charles II. (s). These queen's counsel answer, in some measure, to the advocates of the revenue, advocati fisci, among the Romans. For they must not be employed in any cause against the crown without special licence: in which restriction they agree with the advocates of the fisc (t): but in the imperial law the prohibition was carried still further, and perhaps was more for the dignity of the sovereign; for, excepting some peculiar causes, the fiscal advocates were not permitted to be at all concerned in private suits between subject and subject (u). A custom has for many years prevailed of granting letters patent of precedence to such barristers, as the crown thinks proper to honour with that mark of distinction: whereby they are entitled to such rank and pre-audience as are assigned in their respective patents. These, as well as the attorney and solicitor-general (v), rank promiscuously with the king's counsel, and together with them sit within the bar of the respective courts; but receive no salaries, and are not sworn; and therefore are at liberty to be retained in causes against the crown. And all other serjeants and barristers indiscriminately may take upon themselves the protection and defence of suitors, who are therefore called their clients, as were the dependants upon the ancient Roman orators. Those indeed practised gratis, for honour merely, or at most for the sake of gaining influence; and so likewise it is established with us, that a counsel can maintain no action for his foes; which are given, not as locatio vel conductio, but as quiddam [ * 25]

honorarium (2); not as a salary *or hire, but as a mere gratuity, which

a counsellor cannot demand without doing wrong to his reputation (y); as is also laid down with regard to advocates in the civil law (2), whose honor

(0) Ante, vol. i. App.

(r) See his Letters, 256. (p) De Leg. c. 50.

(8) See his life by Roger North, 37; Man. (9) As to which see the late Mr. Serjeant ning's Serviens ad Legem, 209, 210. Manning's learned work, entitled “Serviens (t) Cod. 2, 9, 1. ad Legem.” By custom the judges of the (u) Ibid. 2, 7, 13. courts of Westminster are always admitted (0) Seld. Tit. Hon. 1, 6, 7. to the degree of the coif, before they are (2) Kennedy v. Broun, 13 C. B., N. S. 677 ; advanced to the bench; the origin of which Brown v. Kennedy, 33 L. J., Ch. 71, 342; was probably to qualify the puisné barons of Swinfen v. Lord Chelmsford, 5 H. & N. 918. the exchequer to become justices of assize, (y) See judgm. Kennedy v. Broun, supra according to the exigence of the statute 14 (2) Dig. 11, 6, 1. Edw. 3, c. 116. Fortesc. c. 50.

arium was directed by a decree of the senate not to exceed in any case ten thousand sesterces, or about 80l. of English money (a). (442)

(a) Tac. Ann. 1, 11, 7.

(442) 1. RETAINER.

What a sufficient retuiner. As it regards the retainer of an attorney, less formality is observed in the American than in the English practice. A written retainer, though proper, is seldom required; a mere parol retainer being sufficient to authorize an attorney to com. mence a suit (Manchester Bank v. Fellows, 28 N. H. [8 Fost.] 302), whether in case of a cor. poration or individual. Ib. So, it is a general rule, that where an attorney undertakes to appear for a party in a cause, a retainer will be presumed; and the court will look no further as to his authority. Jackson v. Stewart, 6 Johns. 34; Brown v. Nichols, 42 N. Y. (3 Hand) 26; Hamilton v. Wright, 37 N. Y. (10 Tiff.) 502; Proprielors v. Bishop, 2 Vt. 231; Post v. Haight, 1 How. 171; Pillsbury v. Dugan, 9 Ohio, 117; Hayes v. Shattuck, 21 Cal. 51; Williams v. Butler, 35 Ill. 544; Hains v. Galbraith, 43 id. 309; Henck v. Todhunter, Har. & J. (Md.) 275; Osborn v. Bank of United States, 9 Wheat. 738. In the absence of fraud or col. lusion in the case, the court will proceed, and leave the party who may be injured by an unauthorized appearance, to his remedy by action. Tally v. Reynolds, 1 Ark. 99; State v. Carothers, 1 Greene (Iowa), 464; Beckley v. Nerocomb, 24 N. H. (4 Fost.) 359. And see cases cited above. The attorney's authority to appear may also be inferred from circumstances; as, that he was the general attorney of the defendant, and the defendant, though knowing it, did not object to his appearance. Bogardus v. Livingston, 2 Hilt. 236. And the acceptance of service of process by an attorney of record on behalf of his client will, in the absence of proof to the contrary, be presumed to have been authorized. Conrey v. Brenham, 1 1.a. Ann. 397; Dobbins v. Dupree, 39 Ga. 394.

One co-defendant may employ an attorney for the co-defendants, and the appearance by such an attorney for all will bind all. Abbott v. Dutton, 44 Vt. 546. So, in the absence of proof to the contrary, an attorney appearing for an infant plaintiff will be presumed to have been employed by the plaintiff's guardian or next friend. Iilliard v. Carr, 6 Ala. 557.

Proof of retainer. Although the license of an attorney is prima facie evidence of his authority to appear for any person whom he professes to represent, he may, nevertheless, be compelled by the court to show his authority, at the instance of either party to the suit. People v. Mariposa Co., 39 Cal. 683; Commissioners of Ercise of N. Y. v. Purdy, 36 Barb. 266; Rogers v. Park, 4 Humph. (Tenn.) 480 ; West v. Houston, 3 Harr. (Del) 15; Ninety-nine plaintiffs v. Vanderbilt, 4 Duer, 632. A parol authorization is sufficient (Manchester Bank v. Fellorox, 28 N. H. [8 Frost.] 302 ; Hardin v. Ilo-yo-po-nubby, 27 Miss. 567; Hirshfield v. Landman, 3 E. D. Smith, 208); and, as between the plaintiff and the defendant, the attor. ney is himself a competent witness to prove it. Ib. ; Pixley v. Butts, 2 Cow. 421 ; Tullock v. Cunningham, 1 id. 256 ; Canif v. Myres, 15 Johns. 240; Folly v. Smith, 12 N. J. L. (7 Halst.) 140. Where the attorney's authority to appear is denied by the opposite party, the burden of proof is upon the party denying (Thomas v. Steele, 22 Wis. 207); and he must state facts showing or tending to show that the attorney does not possess the authority which he assumes. Otherwise the presumption arising from his license and appearance will prevail. People v. Mariposa Co., 39 Cal. 683. 2. AUTHORITY AND POWERS OF:

General extent of authority. As a general rule, the acts of the attorney, under a retainer, are binding upon the client. The retainer confers on the attorney all the powers exercised by the forms and usages of the court in which the suit is pending; and, in the absence of fraud, a client is concluded by the acts and omissions of his attorney. Lewis v. Sumner, 54 Mass. (13 Metc.) 269 ; Smith v. Bossard, 2 McCord (S. C.), 406; Lawson v. Bettison, 12 Ark. 401; Bethel Church v. Carmack, 2 Md. Ch. 143 ; Greenlee v. McDowell, 4 Ired. Eq. (N. C.) 481; Chambers v. Hodges, 23 Tex. i04; Sampson v. Ohleyer, 22 Cal. 200; Russell v. Lane, 1 Barb. 519; Wieland v. White, 109 Mass. 392; Moulton v. Bowker, 115 id. 36 ; Jenney v. Delesdernier, 20 Me. 183; Rogers v. Greenwood, 14 Minn. 333. Thus, a general authority to com. mence suits will warrant an attorney in commencing a suit and attaching property, and will render the client responsible for any damages occasioned thereby. Fairbanks v. Stanley, 18 Me. (6 Shep.) 296. But a plaintiff's attorney cannot, under his general authority, purchase land sold under an execution issued in the cause, for the benefit of, and as trustee

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