The Doctor and Student (1518)
Christopher St. Germain
The sixth question of the student, whether a man may be of counsel
Stud. A man maketh a feoffment to the use of him and of his heirs, and after the feoffor putteth in his beasts to manure the ground, and the feoffee taketh them as damage-feasant, and putteth them in pound, and the feoffor bringeth an action of trespass against him for entering into his ground, etc. Whether may any man, knowing the said use, be of counsel with the feoffee to avoid the action?
Doct. May he by the common law avoid that action, seeing that the feoffor ought in consicience to have the profits?
Stud. Yes, verily; for as to the common law the whole interest is in the feoffee, and if the feoffee will break his conscience, and take the profits, the feoffor hath no remedy by the common law, but is driven in that case to sue for his remedy by subpoena for the profits, and to cause him to enfeoff him again: and that was sometime the Most common case where the subpoena was sued, that is to say, be ore the statute of R. 3. but sith the statute, the feoffor may lawfully make a feoffment. But nevertheless, for the profits received, the feoffor hath yet no remedy but by subpoena as he had before the said statute. And so the, supposal of this action of trespass is untrue in every point as to the common law.
Doct. Though the action be untrue as to the law, yet he that sueth it ought in conscience to have that he demandeth by the action, that is to say, Damages for his profits; and as it seemeth, no man may with conscience give counsel against that he knoweth conscience would have done.
Stud. Though conscience would lie should have the profits, yet conscience will not that for the attaining thereof the feoffor should make an untrue surmise. Therefore against the untrue surmise every man may with conscience give his counsel; for in that doing he resisteth not the plaintiff to have the profits, but he withstandeth him that he should not maintain an untrue action for the profits. And it sufficeth not in the law, ne yet in conscience, as me seemeth, that a man have right to that he sueth for, but that also he sue by a just means, and that he have both good right, and also a good and true conveyance to come to his right. For if a man have a right to lands as heir to his father, and he will bring an action as heir to his mother, that never had right, every man may give counsel against the action, though he know he have right by another means; and so, as methinketh, he may do in dilatories, whereby the party may take hurt if it were not pleaded, though he know the plaintiff have right; as if the party or the town be misnamed, or if the degrees in writs of Entry be mistaken; but if the party should take no hurt by admitting of a dilatory, there he that knoweth that the plaintiff hath right, may not plead that dilatory with conscience. As in a Formedon to plead in abatement of the writ, because he hath not made himself heir to him that was the last seised; for in a writ of right, for that the demandant had omitted one that tended right, ne he may not assent to the casting of an essoin nor protection for him, if he know that the demandant hath right; ne he may not vouch for him, except it be that he knoweth that the tenant hath a true cause of a voucher and of lien, and that he doth it to bring him thereto. And in like wise he may not pray in aid for him, unless he know the prayee have good cause of voucher and lien over; or that; he knew that the prayee hath somewhat to plead that the tenant may not plead, as villeinage in the demandant, or such other.
Doct. Though the plaintiff hath brought an action that is untrue, and not maintainable in the law, yet the defendant doth wrong to the plaintiff in the with-holding of the profits as well before the action brought, as hanging the action; and that wrong, as it seemeth, the counsellor doth maintain, and also sheweth himself to favour the party in that wrong, when he giveth counsel against the action.
Stud. If the plaintiff do take that for a favour, and a maintenance of his wrong, he judgeth farther than the cause is given, so that the counsellor do no more but give counsel against the action: for though he give him counsel to withstand the action for the untruth of it, and that he should not confess it, and to make thereby a fine to the king without cause; yet it may not stand with reason that he may give counsel to the party to yield the profits. And therefore I think he, may in this case be of counsel with him at the Common law, and be against him in Chancery, and in either court give his counsel, without any contrariosity or hurt of conscience. And upon this ground it is, that a man may with good conscience be of counsel with him that hath land by descent, or by a discontinuance without title, if he that hath the right bring not his action according to the law, for the recovering of his right in that behalf.