[404] Vide Mirror c. 3. s. 13. Bracton 151. b. Fleta 55. s. 8. We find that Warrantors were sometimes collusively vouched.
Thus, Champions of acknowledged prowess were named, who, being hired for the purpose, readily entered into the Warranty. When such an instance of collusion took place, the Champion was, according to Bracton and Fleta, to lose a foot and a hand—but, in Britton’s time, the Champion and the person citing him were both liable to death.
[405] The Bodleian and Harleian MSS. say the fourth, omitting the mark of interrogation at the end, and leaving the sentence an absolute assertion; which most probably is the true reading, as it corresponds with the Regiam Majestatem. (L. 3. c. 13.)
[406] No Man, says a Law of the Confessor, shall purchase any thing without the City gate, but shall have the testimony of the Prefect of the City, or of some other respectable person, who can be confided in. (LL. Ed. Conf. 1.) A Law of his predecessor Æthelstan is nearly in the same words, except that it tacitly permits purchases without the City Gate, if they did not exceed twenty denarios. (LL. Æthelst. 12.) Some of the Laws of Edgar are admirably adapted to effect the same object, (LL. Sup. Eadg.) which appears to be constantly kept in view by the different Legislators, who preceded Henry the Second.
[407] Ex locato and ex conducto. “Locatio conductio,” says Dr. Wood, “is one word.” Locator is he that lets out to hire, conductor he that hires. (Justin. Inst. 3. 25. pr.)
[408] Si etiam vacuam invenerit et non obligatam. (Bracton 62. b.)
[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.
[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.)
[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.
[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.)