times next after the king's attorney-general, but usually next after his majesty's counsel then being. These (as well as the queen's attorney and solicitor-general), (b) 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 (except in the court of common pleas, where only serjeants are admitted) (7) may take upon them the protection and defence of any suitors, whether plaintiff or defendant; who are therefore called their clients, like the dependents upon the ancient Roman orators. Those indeed practiced gratis, for honor merely, or at most for the sake of gaining influence: and so likewise it is established with us, (c) that a counsel can maintain no action for his fees; which are given, not as locatio vel conductio, but as quiddam honorurium; not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation: (d) (8) as is also laid down with regard to advocates in the civil law, (e) whose honorarium was directed by a decree of the senate not to exceed in any case ten thousand sesterces, *or about 80%. of English money. (ƒ) And, in order to encourage due freedom of speech in the lawful de[*29] fence of their clients, and at the same time to give a check to the unseemly licentiousness of prostitute and illiberal men (a few of whom may sometimes insinuate themselves even into the most honourable professions), it hath been holden that a counsel is not answerable for any matter by him spoken, relative to the cause 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, or even upon instructions if it be impertinent to the cause in hand, he is then liable to an action from the party injured. (g) (9) And counsel guilty of deceit or collusion are punishable by the statute Westm. 1, 3 Edw. I, c. 28, with imprisonment for a year and a day, and perpetual silence in the courts; a punishment still sometimes inflicted for gross misdemeanors in practice. (h)

In the courts of exchequer two of the most experienced barristers, called the post-man and the tubman (from the places in which they sit) have also a precedence in motions.

(b) Seld. tit. hon. 1, 6, 7.

(c) Davis pref. 22. 1 Ch. Rep. 38.

(d) Davis 23.

(g) Cro. Jac. 90.

(e) Ff. 11, 6, 1. (h) Sir T. Raym. 376.

(f) Tac. ann. l. 1, 11, 7.

(7) This is no longer the case.

(8) In the United States a counsellor is not only entitled to stipulate for a reasonable fee, but he may recover upon the client's implied promise to pay a reasonable compensation. In the state of New Jersey, however, the rule appears to be otherwise. Sceley v. Crane, 18 N. J., 35; Van Atta v. McKinney's Ex'rs, 19 N. J., 235.

It has been held that if an attorney renders a bill on the understanding that it is to be immediately paid, and the client disputes it, and compels its collection by legal proceedings, the attorney is not bound by the bill rendered, but may recover what the evidence shows the services to be reasonably worth. Romeyn v. Campau, 17 Mich., 327.

Physicians also in the United States may recover upon an implied promise to pay reasonable fees. See Ordronaux, Juris. of Med., 40.

(9) See McMillian v. Birch, 1 Binn., 178; Hoar v. Wood, 3 Met., 193; Ring v. Wheeler, 7 Cow., 725; Hastings v. Lusk, 22 Wend., 410; Garr v. Selden, 4 N. Y., 91; Jennings v. Paine, 4 Wis., 358; Cooley Const. Lim., 443.

VOL. II.-3

17

CHAPTER IV.

OF THE PUBLIC COURTS OF COMMON LAW AND

EQUITY.

WE are next to consider the several species and distinctions of courts of justice, which are acknowledged and used in this kingdom. And these are, either such as are of public and general jurisdiction throughout the whole realm; or such as are only of a private and special jurisdiction in some particular parts of it. Of the former there are four sorts; the universally established courts of common law and equity; the ecclesiastical courts; the courts military; and courts maritime. And, first, of such public courts as are courts of common law and equity.(1)

(1) This seems an appropriate place in which to note the very great changes which have recently been made in the English judicial system, in the creation of the supreme court of judicature, and the merger therein of the several ancient courts.

By the judicature acts of 1873 and 1875, the supreme court of judicature is to consist of two permanent divisions, the high court of justice and the court of appeal. An appeal will lie from the high court of justice to the court of appeal, and from the court of appeal to the house of lords. Two lords of appeal in ordinary are appointed to aid the house of lords in determining appeals. They hold the title of baron for life only, and have a salary of £6,000 per annum. The house of lords may now sit for hearing appeals during the prorogation and dissolution of parliament. The lords of appeal consist of the lord chancellor, the lords of appeal in ordinary, and those peers who have held “high judicial office." Three lords of appeal must be present in hearing every case.

The high court of justice has original jurisdiction, with appellate jurisdiction from the inferior courts. It has the jurisdiction formerly exercised by the court of chancery, the three common law courts, the courts of admiralty, probate and divorce, the courts of pleas at Lancaster and Durham, and the courts created by commissions of assize, oyer and terminer, and gaol delivery. It consists of five divisions: 1. the chancery division; 2. the queen's bench division; 3. the common pleas division; 4. the exchequer division, and 5. the probate, divorce and admiralty division. In 1881 the queen's bench division, the common pleas division and the exchequer division were consolidated into one, called the queen's bench division.

The court of appeal exercises appellate jurisdiction corresponding to that exercised by the court of appeal in chancery, exchequer chamber, the court of the lord warden of the stannaries, and the appellate jurisdiction of the judicial committee in admiralty and heresy matters. It consists of the lord chancellor as its president, the lord chief justice of England, the master of the rolls, and six other judges. The court may be divided into divisions by its president, but every appeal must be heard by at least three judges.

By 11 and 12 Vict., c. 78, the court of crown cases reserved was established for hearing such questions of law in criminal trials as should be remitted to them by the trial judge. There was no appeal from its judgment. These cases are now to be heard by at least five of the judges of the high court of justice.

The high court of admiralty has jurisdiction over all maritime causes, that is, injuries occurring on the high seas. It has an instance jurisdiction and in time of war a prize jurisdiction. The independent criminal jurisdiction of this court has been taken away and conferred upon the common law courts, but the judge of the admiralty court may still sit with the commissioners of oyer and terminer. Vice admiralty courts are established in the English colonies and foreign possessions.

A court for divorce and matrimonial causes was created by 20 and 21 Vict., c. 85. The court has jurisdiction over suits for dissolution of marriages, for judicial separation, for nullity of marriage, for restitution of conjugal rights, and for jactitation of marriage. The judge of the court of probate is the judge ordinary of this court. Questions of fact may be tried before the court itself or before a jury. An appeal lies from the judge ordinary to the full court.

The probate court had conferred upon it by statute in 1857 the jurisdiction over testamentary matters formerly exercised by the ecclesiastical courts. The courts of admiralty, probate and divorce now constitute one of the divisions of the high court of justice. The judicial committee of the privy council is the ultimate court of appeal from the

The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there are manors and townships in the kingdom; wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbours and friends. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion. *The course of justice flowing in large streams from the king, as the fountain, to his superior courts of [*31] record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy; being equally similar to that which prevailed in Mexico and Peru before they were discovered by the Spaniards, and to that which was established in the Jewish republic by Moses. In Mexico each town and province had its proper judges, who heard and decided causes, except when the point in litigation was too intricate for their determination; and then it was remitted to the supreme court of the empire, established in the capital, and consisting of twelve judges. (a) Peru, according to Gracilasso de Vega (an historian descended from the ancient Incas of that country), was divided into small districts containing ten families each, all registered and under one magistrate; who had authority to decide little differences and punish petty crimes. Five of these composed a higher class of fifty families; and two of these last composed another, called a hundred. Ten hundreds constituted the largest division, consisting of a thousand families; and each division had its separate judge or magistrate, with a proper degree of subordination. (b) In like manner we read of Moses, that, finding the sole administration of justice too heavy for him, he "chose able men out of all Israel, such as feared God, men of truth, hating covetousness; and made them heads over the people, rulers of thousands rulers of hundreds, rulers of fifties, and rulers of tens; and they judged the people at all seasons; the hard causes they brought unto Moses; but every small matter they judged themselves."(c) These inferior courts, at least the name and form of them, still continue in our legal constitution: but as the superior courts of record have in practice obtained a concurrent original jurisdiction with these, and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (amongst others) it has happened that *these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse, may be mat[*32]

(a) Mod. Un. Hist. xxxviii, 469.

(b) Mod. Un. Hist. xxxix, 14.

(c) Exod. c. 18.

courts of the various colonies and dependencies of Great Britain and the ecclesiastical courts. The ecclesiastical courts have now virtually lost their jurisdiction in civil cases. The county courts have jurisdiction in personal actions where the amount involved does not exceed £50, and in ejectment where the annual value of the land does not exceed £20. In 1865 an equitable jurisdiction was conferred upon them. Some of them have also jurisdiction in probate, admiralty and bankruptcy cases. There are fifty-eight county courts in England, and their jurisdiction is concurrent with the superior courts, but if a case which might have been begun in the county court is commenced in the superior court, costs will generally be denied to the plaintiff. The judge of the county court may determine matters of fact as well as of law. An appeal lies to the divisional courts of the high court of justice.

Justices of the peace possess preliminary jurisdiction in criminal cases. They commit prisoners for trial at quarter sessions or assize, and may punish petty offenses summarily. They are required to possess a certain amount of property, and except in the larger cities and towns serve gratuitously.

Criminal cases are heard by either a judge of the high court, the court of quarter sessions in counties, or the recorder in corporate towns and cities. The court of quarter sessions or the recorder cannot impose a greater sentence than seven years penal servitude.

ter of some speculation, when we consider on the one hand the increase of expense and delay, and on the other the more able and impartial decision, that follow from this change of jurisdiction.

The order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries (for with those of a jurisdiction merely criminal I shall not at present concern myself), will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed throughout the kingdom, is yet, (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power.

I. The lowest, and at the same time the most expeditious, court of justice known to the law of England, is the court of piepoudre, curia pedis pulverizati; so called from the dusty feet of the suitors: or, according to Sir Edward Coke, (d) because justice is there done as speedily as dust can fall from the foot;upon the same principle that justice among the Jews was administered in the gate of the city (e) that the proceedings might be the more speedy, as well as public. But the etymology given us by a learned modern writer (f) is much more ingenious and satisfactory; it being derived, according to him, from pied puldreaux, (a pedlar, in old French), and therefore signifying the court of such petty chapmen as resort to fairs or markets. It is a court of record, incident to every fair and market; of which the steward of him who owns or has the toll of the market, is the judge; and its jurisdiction extends to administer justice for all commercial injuries done in that very fair or market, and not in any preceding one. So that the injury must be done, complained of, heard, and determined, within the compass of one and the same day, unless the fair continues longer. The court hath cognizance of *all matters

[*33] of contract that can possibly arise within the precinct of that fair or market; and the plaintiff must make oath that the cause of action arose there. (g) From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster; (h) which are now also bound by the statute 19 Geo. III., c. 70, to issue writs of execution, in aid of its process, after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction; which may possibly occasion the revival of the practice and proceedings in these courts, which are now in a manner forgotten. The reason of their origional institution seems to have been, to do justice expeditiously among the variety of persons that resort from distant places to a fair or market; since it is probable that no other inferior court might be able to serve its process, or execute its judgments, on both or perhaps either of the parties; and therefore unless this court had been erected, the complainant must necessarily have resorted, even in the first instance, to some superior judicature.

II. The court-baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor. This court-baron is of two natures: (i) the one is a customary court, of which we formerly spoke, (k) appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes anciently called: for that it is held before the freeholders who owe suit and service to the manor, the steward being rather the register than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz.: the freeholders' court, was composed of the lord's tenants, who were the pares of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most im(f) Barrington's observat. on the stat. 337. (i) Co. Litt. 58.

(d) 4 Inst. 272.
(e) Ruth, c. 4.
g) Stat. 17 Edw. IV. c. 2.
(h) Cro. Eliz. 773,
(k) Book 2, ch. 4, ch. 6 and ch. 22.

portant business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass on the case, or the like, where the debt or damages do not *amount to forty shillings: () which is the same sum, or three marks, that bounded the jurisdiction of the ancient Gothic courts in [*34] their lowest instance, or fierding-courts, so called, because four were instituted within every superior district or hundred. (m) But the proceedings on a writ of right may be removed into the county court by a precept from the sheriff called a tolt, (n) “quia tollit atque eximit causam e curia baronum." (o) (2) And the proceedings in all other actions may be removed into the superior courts by the king's writs of pone, (p) or accedas ad curiam, according to the nature of the suit. (2) After judgment given, a writ also of fulse judgment (r) lies to the courts at Westminster to rehear and review the cause, and not a writ of error; for this is not a court of record: and therefore in some of these writs of removal, the first direction given is to cause the plaint to be recorded, recordari facias loquelam.

III. A hundred-court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. (3) The free suitors are here also the judges, and the steward the registrar, as in the case of a courtbaron. It is likewise no court of record; resembling the former in all points, except that in point of territory it is of a greater jurisdiction. (s) This is said by Sir Edward Coke to have been derived out of the county court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time; (t) but its institution was probably coeval with that of hundreds themselves, which were formerly observed (u) to have been introduced, though not invented, by Alfred, being derived from the polity of the ancient Germans. The centeni, we may remember, were the principal inhabitants of a district composed of different villages, originally in number a hundred, but afterwards only *called by that name; (v) and who prob[*35] ably gave the same denomination to the district out of which they were chosen. Cæsar speaks positively of the judicial power exercised in their hundred-courts and courts-baron. Principes regionum atque pagorum" (which we may fairly construe, the lords of hundreds and manors), "inter suos jus dicunt, controversiasque minuunt." (w) And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundredors, or jury; who were taken out of the common freeholders, and had themselves a share in the determination. "Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt: centeni singulis, ex plebe comites, consilium simul et auctoritas, adsunt." (x) This hundred-court was denominated hæreda in the Gothic constitution. (y) But this court, as causes are equally liable to removal from hence as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions.

IV. The county court (4) is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt or damages under the value of forty shillings. (2) Over some of which causes these inferior courts have, by the express words of the statute of Gloucester, (a) a jurisdiction.

(r) F. N. B. 18.

(n) F. N. B. 3, 4. See Appen. No. I, § 2. (q) F. N. B. 4, 70. Finch. L. 444, 445. (t) 2 Inst. 71. (u) Book I, p. 115

(v) Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur; et, quod primo numerus fuit, jam nomen et honor est. Tac. de mor. Germ. c. 6.

(w) De Bell. Gall, l. 6, c. 22.

(z) 4 Inst. 266.

(x) De Morib. German. c. 13.

(a) 6 Edw. I, c. 8.

(2) Writs of right are now abolished.

(y) Stiernhook, l. 1, c. 2.

(3) The courts-baron and hundred-court have long been obsolete as courts of civil jurisdiction.

(4) Very different county courts, created by statute, are now in existence.