OF ATTORNIES, WHO ARE PUT IN THE PLACE OF THEIR PRINCIPALS
IN COURT, TO GAIN OR LOSE FOR THEM.
CHAP. I.
The Suits discussed in the former part of this Treatise concern the
Right and Propriety of the thing, which a person may prosecute,
as indeed, some other Civil Pleas, as well by himself, as by an
Attorney[409] put in his place to gain or lose. But the person, who
thus puts another in his place, ought to be present[410] in Court.
[Footnote 409: _Responsalis._ From some expressions made use of by
Bracton and Fleta, it has been conjectured, that an Attorney, an
Essoiner, and a _Responsalis_, differed in some respects. (Bracton 212.
b. and Fleta L. 6. c. 11. s. 6. 7.) Of this opinion Lord Coke seems to
be. (Co. Litt. 128. a.) Yet, we must be cautious, in applying these
distinctions to Glanville; for they may, after all, be the result of a
much more recent period. Nor is the reading of Bracton, in the passage
alluded to, perfectly free from suspicion.]
[Footnote 410: Sir Edward Coke ascribes this rule to “the policy of the
Common Law, that suits might not increase and multiply.” (2 Inst. 249.)
Whilst the Mirror lays it down generally, that it is an abuse to answer
or appear by Attorney. (Mirror, c. 5. s. 1.)]
It is usually done in the presence of the King’s Justices of the
Common Pleas. But on no account, otherwise than as having been
appointed by his Principal, when present in Court, ought any one to be
received as an Attorney.[411] It is not requisite, that the adverse
party should on that account be present in Court;[412] nor, indeed,
the person who is so put in the place of the other, if he be known to
the Court. One person alone may be put in the place of another; or two
or more, either collectively or separately; so that, if one of them is
unable to attend, the other or others may follow up the Plea. Through
the medium of such an Attorney, a Plea may be commenced in Court, and
determined, whether by Judgment, or final Concord; and that, as fully
and effectually, as by the Principal himself.
[Footnote 411: Mr. Madox, in treating of the _Exchequer_, informs
us, that “in general, accomptants were obliged to come in person to
render their accounts. If they made an Attorney to account for them, it
was usual to have the King’s leave for it. Sometimes, the accomptant
nominated his Attorney before the King: and thereupon the King by
his Writ commanded the Treasurer and Barons to admit such person, as
Attorney, accordingly. But sometimes, especially towards the latter
part of the second period, the Accomptant’s Attorney was admitted by
warrant or leave of the Treasurer, Chancellor of the Exchequer, or
Barons, or one of them.” (Madox’s Excheq. c. 23. s. 5.) Supposing there
was a certain uniformity of proceeding observed in the superior Courts,
this extract may furnish us with an idea of the gradual deviations from
the strict rule of our text.]
[Footnote 412: The Norman Code lays down a contrary doctrine, asserting
that it was not lawful to constitute any Attorney in the absence of
the party, unless in the presence of the Prince, whose testimony alone
sufficed to make a Record. (Grand. Cust. c. 65.)]
But, it should be understood that, it will not suffice for any one to
constitute another his Bailiff[413] or Steward[414] for the managing
his Lands and affairs, even if it be made to appear to the Court, in
order that he should be received in Court in any Suit in the place of
his Principal.[415] But, it is necessary that, a special authority
should be delegated for this purpose; and that the Attorney should, in
the manner before described, be put in his place, expressly in that
particular Action, to lose or gain for him.
[Footnote 413: _Ballivum_. It is the opinion of Sir Henry Spelman,
that we received the term from the Normans. There is, indeed, frequent
mention of such an officer in the Grand Custumary. (c. 4. &c.) But
Lord Coke thinks, we received it from the Saxons. It occurs in a law
of Edward the Confessor, if it be not an interpolation of a later
age. (Ed. Conf. LL. c. 35.) It has been received in a variety of
significations—As meaning a Judge, an Officer of the Crown, a Bailiff
of a hundred, of a Liberty, and of a Borough, of a Manor and of an
Estate. (Spelm. Gloss. ad voc.) Cowell, who deduces the word from the
French, thinks our Sheriffs were formerly called Bailiffs, as their
Counties are termed Bailiwicks. (Cowell ad voc.) See Fleta L. 2.]
[Footnote 414: _Seneschallum_—“Is,” says Cowell, “a French word, but
borrowed from Germany, being, as _Tilius_ saith, compounded of _Schal_,
i.e. _servus aut officialis_, and _gesnid_, i.e. _familia_. We English
it Steward.” (Cowell’s Interp. ad voc. Seneshall. See also Madox’s
Excheq. c. 3. s. 6.) “It is derived,” says Lord Coke, “of _Sein_ a
house or place and _schalc_ an officer or governor, &c.” (Vide Co.
Litt. 61. a. for other derivations.) See Fleta L. 2.]
[Footnote 415: Yet, from the form of the writ which our Author gives
us, L. 13. c. 13. it seems perfectly clear, that a Bailiff was allowed
to hear a Recognition for his principal. The reason of the distinction,
perhaps, might be found in the different nature of the functions—to
perform the duty of an Attorney being an active, that of merely hearing
a Recognition, of a passive nature—the one, requiring skill—the other,
not.]
It should also be observed, that any one may in the King’s Court put
another in his place, to gain or lose for him, even in a suit that
he has in another Court; and it shall be commanded, that the Attorney
shall be received in such Court in the place of his Principal, by the
following Writ——
CHAP. II.
“The King to the Sheriff, or to any other presiding in his Court,
Health. Know that _N._ hath before me, or my Justices, put _R._ in his
place to gain or lose for him, in the Plea which is between him and
_R._[416] concerning one ploughland or concerning any other thing,
(naming it) and, therefore, I command you, that you receive the
aforesaid _R._ in the place of the said _N._, in such Plea, to gain or
lose. Witness, &c.”
[Footnote 416: Here is another instance of confusion, arising from the
inaccurate manner in which these letters are inserted!]
CHAP. III.
When any one, therefore, according to the form, before mentioned, is
put in the place of another in any suit, it may be asked, whether
Essoins shall hold with reference to the person of the Attorney only,
or the person of his Principal only, or with regard to both of them?
And, indeed, the Essoins of the Attorney himself only shall in such
case be allowed, until his appointment is revoked.[417] When any one,
so put in the place of another in Court, answer to the suit, and does
that which appertains to him, it may be asked, whether his Principal
can at his pleasure remove him, and substitute another Attorney,
especially if any great degree of Enmity should subsequently arise
between them?
[Footnote 417: “The Essoin of the Procurator only shall have place,
until the procuratory be revoked.” (Reg. Maj. L. 3. c. 16.) Mr. Reeves
appears to have viewed the passage of the Text in a different light.
(Vide Hist. Eng. Law. 1. 170.)]
That the Principal himself, indeed, may follow up the Suit, the
Attorney being removed, is unquestionable; because every Man is
understood to put another in his place, under the tacit condition,
that he himself cannot be present. The prevailing practice permits a
Principal to remove such Attorney, in any part of the Suit, and also
to replace him by substituting another in Court, in the manner before
mentioned. A Father may thus substitute his Son, and vice versa: one
stranger may also substitute another; and a Wife her husband. When
a Husband, put in the place of his Wife in a suit concerning her
marriage-hood or Dower, should lose any part of the property of his
Wife, or should, by a Judgment or a Concord, remit any right of the
Wife, whether, it may be asked, can the Wife herself again agitate the
question, or whether is she absolutely bound, after the death of her
Husband, to abide by his Act? It does not seem that the woman in such a
case ought, by the Act of her Husband, to lose any part of her right;
because, whilst in the power of her Husband, she can in no measure
oppose or controvert his Will, and, therefore, she could not, contrary
to his pleasure, look into her rights.[418] But, on the other hand, it
may be contended, that those Acts which are transacted in the King’s
Court, ought to be held settled and unalterable.
[Footnote 418: Vide Mirror, c. 5. s. 5.—Ante 97. Not. 3. and M.
Houard’s Traités sur les Coutumes Anglo-Norm. Tom. 1. 451. where he
adopts the same reading, as I contend for, and observes that under the
ancient Norman Custumary the wife could not reclaim her Dower.]
CHAP. IV.
The Principal is to be distrained to abide by what has been done by his
Attorney, whether it be so done by Judgment or by Concord. But what
must be done, if the Principal is incompetent to pay, and has nothing
whereby he can be distrained, although the Attorney has? The Attorney,
indeed, must not be distrained.
CHAP. V.
The principle that we have just laid down, that no one, unless present
in Court, can effectually put another in his place, seems contrary to
what is contained in the first Book, upon the doctrine of Essoins.[419]
For, it is there stated, that if any one should, after his third
Essoin, send an Attorney, whoever he happen to be, with Letters, he
should be received in Court. But this happens by force of the Judgment.
A different Rule prevails where, urged by an order of the Court, or
by a Distress, a person prays to put another in his place in a Suit,
to gain or lose for him. It should also be observed, that Abbots
and Priors of Canons Regular are received in Court, upon their own
authority, without even the Letters of their Convents.
[Footnote 419: L. 1. c. 12.]
Other Priors, whether of Canons or Monks, if Cellarii[420] even though
Aliens, are by no means to be admitted in Court, without the Letters
of their Abbot or Grand Prior.[421] The Master of the Knight-Templars
and the Chief Prior of the Hospital of Jerusalem[422] are also received
upon their own authority; but none of their Orders of a Rank inferior
to them are in the habit of being received. When one or more have been
substituted in Court to conduct a Suit for another, in the manner
before mentioned, whether the one can delegate his authority to
another, or whether one of the two can nominate the other, or a third,
in his place, or in that of his Principal, to gain or lose for him in
that Suit, are points at least questionable.[423]
[Footnote 420: I have retained the original word, not merely because I
know of no word answering to the complex idea of _Skene_, but that it
is very questionable, whether Skene be correct. He thus interprets the
word—“If they dwell in cells, separate from abbies or monasteries.”
(Reg. Maj. L. 3. c. 18.) From other authorities, I should rather have
inferred, that the _cellarii_ were a species of monks, invested with
the power of providing for their Brethren, and regulating the internal
part of their monasteries. But this again is with difficulty to be
reconciled to the terms, in which one of them is spoken of—_secundus
pater in monasterio_, unless we concur with Spelman, who says, when
speaking of the word, _crevisse videtur in amplitudinem_. (Vide
Spelman. Gloss, ad voc.)]
[Footnote 421: The Regiam Majestatem, on the contrary, asserts, that
they shall be received, without the Letter of their Abbot or Grand
Prior. (L. 3. c. 18.)]
[Footnote 422: Of these Orders the Reader will find some mention in 2
Inst. 431.]
[Footnote 423: “It is answered,” says the Reg. Maj. “he may not do
so, because all things are forbidden to a procurator, which are not
expressly granted and committed to him.” (L. 3. c. 19.)]