is, turns him out of poffeffion, and dies leaving a fon C; hereby the estate defcends to C the fon of A, and B is barred from entering thereon till he proves his right in an action: now, if afterwards C the heir of the diffeifor makes a leafe for life to D, with remainder to B the diffeifee for life, and D dies; hereby the remainder accrues to B, the diffeifee : who thus gaining a new freehold by virtue of the remainder, which is a bad title, is by act of law remitted, or in of his former and furer eftate f. For he hath hereby gained a new right of poffeffion, to which the law immediately annexes his antient right of property.

IF the fubfequent estate, or right of poffeffion, be gained by a man's own act or confent, as by immediate purchase being of full age, he shall not be remitted. For the taking fuch subsequent estate was his own folly, and shall be looked upon as a waiver of his prior right. Therefore it is to be obferved, that to every remitter there are regularly these incidents; an antient right, and a new defeasible estate of freehold, uniting in one and the fame perfon; which defeasible eftate must be caft upon the tenant, not gained by his own act or folly. The reafon given by Littleton", why this remedy, which operates filently and by the mere act of law, was allowed, is fomewhat fimilar to that given in the preceding article; because otherwise he who hath right would be deprived of all remedy. For as he himself is the perfon in poffeffion of the freehold, there is no other perfon against whom he can bring an action, to establish his prior right. And for this cause the law doth adjudge him in by remitter; that is, in fuch plight as if he had lawfully recovered the fame land by fuit. For, as lord Bacon obferves, the benignity of the law is fuch, as when, to preferve the principles and grounds of law, it depriveth a man of his remedy without his own fault, it will rather put him in a better degree and condition than in a worfe. Nam quod remedio deflituitur, ipfa re valet, fi culpa abfit. But there fhall be no

f Finch. L. 194. Litt. §. 683. Co. Litt. 348. 350.

h §. 661.

i Elem. c. 9.

remitter

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 shall not be remitted to his eftate tail': for the operation of the remitter is exactly the fame, after the union of the two 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 estate, he fhall 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 some cases even poffible, to apply for redress in the ufual and ordinary methods to the courts of public juftice.

Co. Litt. 349.

1 Moor. 115.

I Ann. 286.

B 3

CHAPTER THE THIRD.

OF COURTS IN GENERAL.

ΤΗ

HE next, and principal, object of our inquiries is the redrefs 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 process 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 redrefs 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 juftice 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 process 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 nufance 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. I.

option:

option: If I do not diftrein my neighbour's cattle damagefeafant, 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 feised it. And with regard to accords and arbitrations, these, 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 such, wherein the only possible legal remedy would be directed against the very person himfelf who seeks relief.

In all other cafes it is a general and indifputable rule, that where there is a legal right, there is alfo a legal remedy, by fuit or action at law, whenever that right is invaded. And, in treating of these remedies by fuit in courts, I fhall pursue the following method: first, I shall confider the nature and feveral species of courts of justice: and, fecondly, I shall 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 redreffed, in each respective species of courts.

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

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

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 prefcription, (the only methods by which any court of judicature d can exift) the king's confent in the two former is exprefsly, and in the latter impliedly, given. In all thefe 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 subject and fubject, the law hath appointed a prodigious variety of courts, fome with a more limited, others with a more extenfive jurifdiction; fome conftituted to inquire only, others to hear and determine : fome 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 diftinction, that runs throughout them all; viz. that fome 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 fuch high and fupereminent authority, that their truth is not to be called in queftion. For it is a settled rule and maxim that nothing shall 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 fhall be tried by nothing but itfelf; that is, upon bare infpection whether there be any fuch record or no; elfe 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 f, and therefore no other court hath authority to fine or imprison; fo that the very erection

c See book I. ch. 7.

d Co. Litt. 260.

e Ibid.

f Finch. L. 231.

of