Imatges de pÓgina
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COUNCIL OF THE CHURCH, an | assembly of prelates who meet, being duly convoked by the legitimate authority, for the purpose of defining questions of doctrine, or making regulations or canons in matters of discipline. There are various sorts of councils:

1. General or Ecumenic councils, which are considered as a representative and legislative assembly of the whole church, and to which all bishops are summoned, In the early ages of the Christian Church the general councils were convoked by the Roman Emperor; they have been since convoked by the Popes, at least for the Western or Roman Church. The authority of general councils is considered as binding on the whole church only in matters of faith when the canon establishes a dogma which it enjoins all the faithful to believe under pain of anathema and heresy. In matters of faith the Roman Church considers a general council to be infallible: some say, however, only after its canons have been confirmed by the Pope. All bishops have a right to attend and vote in a general council; the abbots and generals of monastic orders have also been admitted to vote in most councils by consent of the council. Priests and monks have also attended the councils as theologians and advisers, with a consultative and deliberative vote. In the Western Church the Pope, or his legate for him, presides in the council. For a council to be legitimate it is required that all the bishops should be called, whether they attend or not, except those who are declared by the church to be schismatical or heretical, and all deliberations should be free and unconstrained.

2. National councils, consisting of the bishops of a whole kingdom or state, which can be convoked by the sovereign power of such state; but the authority of such council is limited to the kingdom or state for which it is convened.

3. Provincial councils are convoked by the respective metropolitans, with the consent of the sovereign power, or the king, as in England. A bishop may also convoke a diocesan council, with the consent of his superior. (Benedict XIV. de Synodo diocesana.) The Church of Rome reckons several councils, though not œcu

menic, previous to that of Nice, the earliest of which seems to be that held at Jerusalem, about A.D. 50, and which was attended by the apostles Peter, John, James, and Barnabas, and which is mentioned in the fifteenth chapter of the 'Acts of the Apostles.'

COUNCILLORS. [MUNICIPAL CORPORATIONS.]

COUNSEL, an abbreviation of counsellor. In England a counsellor is a barrister [BARRISTER], or one who has kept twelve terms at one of the four inns of court, and has been called to the bar. After keeping his terms a man may act as a conveyancer, special pleader, or equity draftsman, without being called to the bar, but he must take out a certificate under 9 Geo. IV. c. 49. The word counsel has no plural number, and is used to denote either one or more counsel. The duty of counsel is to give advice in questions of law, and to manage causes for clients. They are styled common-law, equity, or chamber counsel, according to the nature of the business they transact. They are supposed to work for nothing, but in fact they are paid. But, according to Mr. Justice Bayley, Chit. R. 351-"they are to be paid beforehand, because they are not to be left to the chance whether they shall ultimately get their fees or not, and it is for the purpose of promoting the honour and integrity of the bar that it is expected all their fees should be paid when their briefs are delivered. That is the reason why they are not permitted to maintain an action for their fees." Though it is expected that all their fees should be paid before the work is done, this is very far from being the general practice; and sometimes the payment is deferred, and sometimes it happens that it is never made. The counsel is paid by the attorney or solicitor of the person whose business he does. Counsel may be retained generally, that is, to advocate any cause in which the retaining party may be engaged, or specially with reference to a pending cause; and generally speaking, a counsel cannot refuse a retainer: there are certain rules, however, by which their practice is regulated.

Counsel in a cause may urge and argue

upon anything which is contained in their | instructions, and is pertinent to the matter in question, and it is not considered to be their business to inquire whether it be true or false they are also at liberty to make comments on the evidence adduced on that part of the case to which they are opposed, and to cross-examine the witnesses of the opposite party.

Formerly, in cases of felony, counsel for the prisoner were not allowed to address the jury on his behalf: they might, however, examine and crossexamine the witnesses, and argue points of law; but now by stat. 6 & 7 Wm. IV. c. 114, all persons tried for felony may make full answer and defence by counsel. Counsel are punishable by stat. West. 1. 3. Ed. I., c. 28, for deceit or collusion, and are so far under the jurisdiction of the judges, that in the event of malpractice they may be prohibited from addressing the court: there are also certain rules established by each court for the regulation of its own practice, to which counsel are subject.

COUNT, through the French word comte, from the Latin comes, comitis, meaning companion. The word, though simply meaning Companion, received various particular significations. Young Romans of family used to go out with the governor of a province and commander of armies, under whom they got an insight into public and military matters. They were called comites; Juvenal (Sat. viii. 127) speaks of the cohors comitum. Perhaps some of them acted as secretaries to the commander or governor, as in the case of Celsus Albinovanus, the friend of Horace, to whom he addresses the eighth epistle of the first book. With the establishment of the imperial power at Rome, comites were established about the emperor's person; and a great number of functionaries and officers received the title of comes, with some addition to indicate their duty. When the emperor sat as judge he had comites and jurisconsulti (jurists) with him. (Spartian, Hadrian. c. 18.) In the time of Constantine, comes became a title, and there were comites of the first and second class, and so forth. The term comes, as a title, was established both in the eastern and the

western empire. Some of them were governors of provinces or particular districts. The rank and condition of these comites may be collected from the Theodosian Code, vi. tit. 12-20, with the commentary of Gothofredus (Godefroy). The kingdoms of modern Europe have inherited the tributary spoils of the lower empire. By

substituting the word grand for that of count, which was a title common to all the officers or ministers of the emperors of the East, it is easy to show the analogy of the titles of modern court dignities to the antient. Thus the comes sacrarum largitionum has been called grand almoner; the comes curiæ, grand master of ceremonies; the comes vestiarius, grand master of the wardrobe; the comes domesticorum, grand master of the royal household; the comes equorum regiorum, grand equerry, &c. The comes marcarum, counts of the frontiers, which were formerly called marches (a denomination still in use in the papal states), took subsequently the title of marquis; an innovation which raised long and serious discussions among the learned in feudal right and court etiquette.

Under the first two races of the Frank kings, the counts were, as under the lower empire, officers of various degrees. The count of the palace was the first dignity in the state, after the maire of the palace. He presided in the court royal when the prince was absent, and possessed sovereign jurisdiction. He also exercised a great influence in the nomination of the king's delegates, who, under the title of counts, administered the provinces. A count had the government of a small district, often limited to a town and its dependencies. He was at the same time a judge, a civil administrator, and a military commander. In case of war, he led in person the contingent of his county to the army. The learned Dutillet, in his 'Recueil des Rois de France, de leur Couronne et Maison,' &c., expatiates on the functions of antient counts. With the progress of time, the counts, as well as the other officers appointed to govern the provinces, the towns, and the frontiers, succeeded in rendering their places hereditary, and in making themselves sovereigns of the districts of which they had only been created removable and revocable administrators.

COUNTY COURT. Before the su

limited to debts

under not reco

perior courts of Westminster were created
the County Courts kept by the sheriffs were
the chief courts of the kingdom. Their
by Magna Charta, and their ordinary
powers were, however, greatly curtailed
40s. Specialty debts were
jurisdiction
verable in them, and the cause must
arise within the county. In conse-
quence of the inadequacy of these tri-
bunals, with the dilatory and expensive
proceedings of other local courts, there
in which debts above 40s. could be re-
were few courts of inferior jurisdiction

At first they contented themselves with term count seems not to have been used securing the reversion to their sons, then in England as a title of honour, though to their collateral heirs, and finally they the wives of earls from a very early declared those places hereditary for ever, period have been addressed by the title of under Hugh Capet, the son of Robert, countess. The king, in mentioning an count of Paris, who himself only obtained earl in any writ or commission, usually the throne partly in consequence of that styles him "trusty and well-beloved cousin" concession. It was feudalism that intro--a peculiarity at least as antient as the duced inheritance instead of election as a reign of Edward III. permanent rule in political successions. COUNTY. [SHIRE.] The supreme chief of the antient Franks, koning (Lat. rex), was a magistrate, and as a magistrate he was elected, although always from the same family. The inferior chiefs, heri-zoghe, graven, rakhenburghe (Lat. duces, comites, judices), were also elected. But when the feudal system attained its perfection, when men were no longer ruled by men, but lands by lands, and men by lands or by the legitimate heir of the lands, then no kind of election remained. One demesne made a king, as another made a duke, a count, a viscount, and thus the son of a count became a count, the son of a duke became duke, and the son of a king became king. Finally, to form a just idea of the formidable power of the feudal counts, we must refer to the period of the erection of the towns of the northern provinces of France into commonalties or republics, when their heroic population had to sustain a most deadly struggle, from the eleventh century to the middle of the fourteenth, before they could shake off the iron yoke of the counts and the bishops. The term "count" is now become in France a mere title, conferring no political power. In the papal states, as well as in those of Austria, it may be bought for a moderate sum; and in the other monarchical states of the continent, it is granted as a mark of imperial or royal favour.

&c.;

The title of earl, or, as it was often rendered in official Latin, comes, companion, is of very high antiquity in England, being well known to the Saxons under the name of ealdorman, that is to say, elder-man, and also shireman, because each of them had the government of a distinct shire, or, as it is now generally called, county. The sheriff, under his Latinized name, is called vice-comes, or viscount, which term is now one of the titles of rank in the British peerage. The

covered.

To remedy these deficiencies in local administration, the County Court Act of 1846 was passed, and gave increased facilities by a prompt, inexpeusive, and simple procedure for the recovery of small debts.

The Act of 1846, the 9 and 10 Vict. c. 95, ha been put in force by the Privy Council, who were empowered to divide counties; and any city, borough, or district, if more convenient to be included in an adjoining county. Local courts, already existing, to be held as county courts, and districts assigned them.

Another Act, 13 and 14 Vict. c. 61, extends the jurisdiction of the county courts to the recovery of any demand not exceeding 501. With respect to fees, it provides that an attorney shall be entitled to a fee not exceeding 17 10s. for his fees and costs, when the demand shall not exceed 35l. or a fee of 27. in any other case within the jurisdiction of the Act. No fee, exceeding 21. 4s. 6d. in amount, to be allowed for employing a barrister in any cause.

By the Act of 1846, the Lord Chancellor appoints the judges of the county

courts, each of whom must be a barrister of seven years' standing, or a barrister, attorney, or other person who has presided as judge in a local court; and they are removable for inability, or their district may be changed.

By a reference to section 58, it will be seen what causes of action are within the jurisdiction of the County Courts. These are all pleas of personal actions, where the debt or damage claimed is not above 201., whether on balance of account or otherwise; and with the view of confining suits for small debts to the new tribunals, the 128th section enacts, that "no costs shall be awarded to a plaintiff in a superior court, excepting where the plaintiff or defendant live twenty miles apart, if the verdict be for plaintiff for less than 207. on contract, or 51. on tort, unless the judge will certify that it was a proper action to be tried in a superior court.

months should be paid for at the expiration of these respective periods, the plaintiff may enter a plaint for each cause of action, if the defendant failed to pay at the time when the credit expired; but the plaintiff could only bring one action against the defendant if the credit was given unconditionally: prohibiting splitting demands, in such a case, appears to be what was contemplated by the act. (Jagoe's Practice of the County Courts, p. 193.)

If an account is settled by two parties, consisting of several items, each of which separately would be a sufficient cause of action, it has the effect of consolidating them into one, which, if over 20%., cannot be sued for in a County Court without abandoning the excess. If there are two or more causes of action, that together do not amount to 20%., an action may be brought for each, the judge having no power to compel a plaintiff to consolidate causes of action; and the act gives a right to enter a plaint for each.

The judge has no power to imprison merely for failure of payment, either of the whole debt or any instalment. Imbe-prisonment does not satisfy or extinguish the debt, and is meant only for the punishment of a positive offence by the fraudulent concealment of property, a contempt of court, or other wilful default.

A creditor whose debtor owes him above twenty pounds is at liberty to relinquish the difference beyond twenty pounds, and commence a suit for that sum; but if he obtain a judgment it will be a release to the defendant of all the excess that he owed to the plaintiff yond twenty pounds; and even should the defendant not comply with the order of the court by paying the twenty pounds and costs, the plaintiff cannot afterwards sue him in a superior court for the original larger debt, for he will have made his election to proceed in the County Court, and must abide by its decision.

By the splitting of demands, the jurisdiction of the act has been sought to be extended to collective debts which in the whole exceed 207.; but none of the decisions in the County Courts yet go the length of empowering a plaintiff in an arbitrary way to divide a cause of action. For example, if a plaintiff had a running account which amounted to 1007., he could not bring an action in the County Court for every item, or more than 20%., and the judgment of the court would be a bar to his recovering the remaining 807.; but if it was stipulated between the plaintiff and defendant, prior to the commencement of the credit, that all goods delivered within two three, or six

This important act has doubtless effected a great improvement in one branch of the debtor laws. It comprises 143 clauses, and is too long for abridg ment; but we shall endeavour to present a condensed analysis of the sections not already referred to.

The judges are not interdicted from acting as justices, if in the commission of the peace. Their salary is not to exceed 12007., nor that of a clerk 6001. A barrister or attorney who has presided as a judge in a local court is eligible to a judgeship; but any attorney appointed a judge, who is in partnership, must dissolve such partnership within twelve calendar months. Officers of the court are not allowed to act as attorney or agent in the same court.

The actions for small debts withheld

whether on balance of account or otherwise, may be holden in the county court without writ, and such actions determined in a summary way. On the application of any person desirous to commence a suit, the clerk of the court shall enter in a book a plaint in writing, stating the names and the last known places of abode of the defendants, and the substance of the action intended to be brought; upon which a sunimons shall be served on the defendant so many days before the day on which the court shall be holden at which the cause is to be tried, as shall be directed by the rules; and delivery of such summons, in manner specified in the rules of practice, shall be deemed good service; no misnomer or inaccurate description of any person or place in any such plaint or summons shall vitiate the same, so that the person or place be therein described so as to be commonly known. Such summons may issue in any district in which the defendant shall dwell or carry on his business at the time of the action brought; or, by leave of the court for the district in which the defendant shall have dwelt or carried on his business, at some time within six calendar months next before the time of the action brought, or in which the cause of

action arose.

dant may demand a jury; or, where the amount is under 51., if required, the judge, at his discretion, may grant a jury, the party giving notice of his requiring a jury, and this notice being communicated to the opposite party; and the party requiring a jury is to pay a deposit for payment of the jury, to be considered as costs in the cause. The number of the jury is to be five, and their verdict must be unanimous.

COUNTY RATE. County rates are taxes levied for the purposes of defraying the expenses to which counties are liable. They are levied either under the authority of acts of parliament, or on the principle that as duties are imposed upon a county, there must be a power to raise the money for the costs incurred in the performance of such duties.

The ancient purposes of the county rate "were to provide for the maintenance of the county courts, for the expenses incidental to the county police, and the civil and military government of the county; for the payment of common judicial fines; for the maintenance of places of defence (sometimes, however, provided by a separate tax common to counties and to other districts, called burgbote), prisons, gaols, bridges (when these were not provided for by a separate tax common to counties and to other districts, called brukA plaintiff having a cause of action for bote), and occasionally high roads, rivers, more than 501. must not divide the claim and watercourses, and for the payment of for the purpose of bringing two or more ac- the wages of the knights of the shire. Adtions; but if he has so done, he may aban-ditions to these purposes, some occasional don the excess, and the judgment of the and some permanent, were made from court will be a full discharge of all de- time to time by statutes. The King's mands in respect of such cause of action. aids, taxes, and subsidies, were usually Minors may sue under this Act for wages first imposed on the county, and collected or piece-work, or for work as a servant; as if they had been county taxes. But and the court has also jurisdiction in the first statute defining any of its precases of partnership or intestacy; execu- sent purposes (though now repealed as to tors also may sue and be sued, and no the mode it prescribes for imposing the privilege of exemption can be pleaded. tax) was passed in the 22nd Hen. VIII. Where two or more persons are liable, From that time up to the present, new one may be sued, and on satisfying the purposes have constantly been added, and judgment when obtained, such person new and distinct rates were constantly may proceed for contribution against any created for purposes of comparatively other person jointly liable with him. little importance, and to raise sums of money quite insignificant in amount."(Report on Local Taxation, by the Poor Law Commissioners.)

The judge is to determine all questions, whether of fact or of law, unless a jury be summoned; either plaintiff or defen

* 2 Y

The assessment and collection of sepa

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