The Book-Hunter
defendant desired to enter into partnership with him. They entered into
partnership accordingly, and it was agreed that they should provide the
necessary plant for the business of the firm--such as horses, saddles,
bridles, &c. (pistols not mentioned)--and should participate in the
expenses of the road. The declaration then proceeds, "And your orator
and the said Joseph Williams proceeded jointly with good success in the
said business on Hounslow Heath, where they dealt with a gentleman for a
gold watch; and afterwards the said Joseph Williams told your orator
that Finchley, in the county of Middlesex, was a good and convenient
place to deal in, and that commodities were very plenty at Finchley
aforesaid, and it would be almost all clear gain to them; that they went
accordingly, and dealt with several gentlemen for divers watches, rings,
swords, canes, hats, cloaks, horses, bridles, saddles, and other
things; that about a month afterwards the said Joseph Williams informed
your orator that there was a gentleman at Blackheath who had a good
horse, saddle, bridle, watch, sword, cane, and other things to dispose
of, which, he believed, might be had for little or no money; that they
accordingly went, and met with the said gentleman, and, after some small
discourse, they dealt for the said horse, &c. That your orator and the
said Joseph Williams continued their joint dealings together in several
places--viz., at Bagshot, in Surrey; Salisbury, in Wiltshire; Hampstead,
in Middlesex; and elsewhere, to the amount of L2000 and upwards."[44]
[Footnote 44: This case has been often referred to in law-books, but I
have never met with so full a statement of the contents of the
declaration as in the Retrospective Review (vol. v. p. 81).]
Here follows a brief extract from a law-paper, for the full
understanding of which it has to be kept in view that the pleader, being
an officer of the law who has been prevented from executing his warrant
by threats, requires, as a matter of form, to swear that he was really
afraid that the threats would be carried into execution.
"Farther depones, that the said A.B. said that if deponent did not
immediately take himself off he would pitch him (the deponent) down
stairs--which the deponent verily believes he would have done.
"Farther depones, that, time and place aforesaid, the said A.B. said to
deponent, 'If you come another step nearer I'll kick you to hell'--which
the deponent verily believes he would have done."[45]
[Footnote 45: It is curious to observe how bitter a prejudice Themis has
against her own humbler ministers. Most of the bitterest legal jokes are
at the expense of the class who have to carry the law into effect. Take,
for instance, the case of the bailiff who had been compelled to swallow
a writ, and, rushing into Lord Norbury's court to proclaim the indignity
done to justice in his person, was met by the expression of a hope that
the writ was "_not returnable_ in this court."]
I know not whether "lay gents," as the English bar used to term that
portion of mankind who had not been called to itself, can feel any
pleasure in wandering over the case-books, and picking up the funny
technicalities scattered over them; but I can attest from experience
that, to a person trained in one set of technicalities, the pottering
about among those of a different parish is exceedingly exhilarating.
When one has been at work among interlocutors, suspensions, tacks,
wadsets, multiplepoindings, adjudications in implement, assignations,
infeftments, homologations, charges of horning, quadriennium utiles,
vicious intromissions, decrees of putting to silence, conjoint actions
of declarator and reduction-improbation,--the brain, being saturated
with these and their kindred, becomes refreshed by crossing the border
of legal nomenclature, and getting among common recoveries, demurrers,
Quare impedits, tails-male, tails-female, docked tails, latitats,
avowrys, nihil dicits, cestui que trusts, estopels, essoigns, darrein
presentments, emparlances, mandamuses, qui tams, capias ad faciendums or
ad withernam, and so forth. After vexatious interlocutors in which the
Lord Ordinary has refused interim interdict, but passed the bill to try
the question, reserving expenses; or has repelled the dilatory defences,
and ordered the case to the roll for debate on the peremptory defences;
or has taken to avizandum; or has ordered re-revised condescendence and
answers on the conjoint probation; or has sisted diligence till caution
be found judicio sisti; or has done nearly all these things together in
one breath,--it is like the consolation derived from meeting a companion
in adversity, to find that at Westminster Hall, "In fermedon the tenant
having demanded a view after a general imparlance, the demandant issued
a writ of petit cape--held irregular."
Also, "If, after nulla bona returned, a testatum be entered upon the
roll, quod devastavit, a writ of inquiry shall be directed to the
sheriff, and if by inquisition the devastavit be found and returned,
there shall be a scire facias quare executio non de propriis bonis, and
if upon that the sheriff returns scire feci, the executor or
administrator may appear and traverse the inquisition."
Again, "If the record of Nisi prius be a die Sancti Trinitatis in tres
Septimanas nisi a 27 June, prius venerit, which is the day after the day
in Bank, which was mistaken for a die Sancti Michaelis, it shall not be
amended."
It is interesting to observe that at one end of the island a panel means
twelve perplexed agriculturists, who, after having taken an oath to act
according to their consciences, are starved till they are of one mind on
some complicated question; while, at the other end, the same term
applies to the criminal on whose conduct they are going to give their
verdict. It would be difficult to decide which is the more happy
application; but it must be admitted that we are a great way behind the
South in our power of selecting a nomenclature immeasurably distant in
meaning from the thing signified. We speak of a bond instead of a
mortgage, and we adjudge where we ought to foreclose. We have no such
thing as chattels, either personal or real.[46] If you want to know the
English law of book-debts, you will have to look for it under the head
of Assumpsit in a treatise on Nisi Prius, while a lawyer of Scotland
would unblushingly use the word itself, and put it in his index. So,
too, our bailments are merely spoken of as bills, notes, or whatever a
merchant might call them. Our garneshee is merely a common debtor. Baron
and feme we call husband and wife, and coverture we term marriage.
[Footnote 46: A late venerable practitioner in a humble department of
the law, who wanted to write a book, and was recommended to try his hand
at a translation of Latin law-maxims as a thing much wanted, was
considerably puzzled by the maxim, "Catella realis non potest legari;"
nor was he quite relieved when he turned up his Ainsworth and found that
catella means a "little puppy." There was nothing for it, however, but
obedience, so that he had to give currency to the remarkable principle
of law, that "a genuine little whelp cannot be left in legacy." He also
translated "messis sequitur sementem," with a fine simplicity, into "the
harvest follows the seed-time;" and "actor sequitur forum rei," he made
"the agent must be in court when the case is going on." Copies of the
book containing these gems are exceedingly rare, some malicious person
having put the author up to their absurdity.]
Still, for the honour of our country, it is possible to find a few
technicalities which would do no discredit to our neighbours. Where one
of them would bring a habeas corpus--a name felicitously expressive,
according to the English method, of civil liberty--an inhabitant of the
North, in the same unfortunate position, would take to running his
letters. We have no turbary, or any other easement; but, to compensate
us, we have thirlage, outsucken multures, insucken multures, and dry
multures; as also we have a soumin and roumin, as any one who has been
so fortunate as to hear Mr Outram's pathetic lyric on that interesting
right of pasturage will remember, in conjunction with pleasing
associations. To do the duty of a duces tecum we have a diligence
against havers. We have no capias ad faciendum (abbreviated cap ad fac),
nor have we the fieri facias, familiarly termed fi fa, but we have
perhaps as good in the in meditatione fugae warrant, familiarly
abbreviated into fugie, as poor Peter Peebles termed it, when he burst
in upon the party assembled at Justice Foxley's, exclaiming, "Is't here
they sell the fugie warrants?"[47]
[Footnote 47: There are two old methods of paying rent in Scotland--Kane
and Carriages; the one being rent in kind from the farmyard, the other
being an obligation to furnish the landlord with a certain amount of
carriage, or rather cartage. In one of the vexed cases of domicile,
which had found its way into the House of Lords, a Scotch lawyer argued
that a landed gentleman had shown his determination to abandon his
residence in Scotland by having given up his "kane and carriages." It is
said that the argument went further than he expected--the English
lawyers admitting that it was indeed very strong evidence of an intended
change of domicile when the laird not only ceased to keep a carriage,
but actually divested himself of his walking-cane.]
I am not sure but, in the very mighty heart of all legal formality and
technicality--the Statutes at large--some amusing as well as instructive
things might be found. Let me offer a guiding hint to the investigator
ambitious of entering on this arduous field. The princely collector
will, of course, put himself in possession of the magnificent edition of
the Statutes issued by the Record Commission, but let not the
unprofessional person who must look short of this imagine that he will
find satisfaction in the prim pages of a professional lawyer's modern
edition. These, indeed, are not truly the Statutes at large, but rather
their pedantic and conventional descendants, who have taken out letters
of administration to their wild ancestors. They omit all the repealed
Statutes in which these ancestors might be found really at large sowing
their wild oats, and consequently all that would give them interest and
zest for those in search of such qualities.
It is not, for instance, in the decorous quartos of Roughhead, but in
the hoary blackletter folios, looking older than they are--for
blackletter adhered to the Statutes after it had been cast off by other
literature--that one will find such specimens of ancestral legislation
as the following:--
ATTORNEYS.--(33 Henry VI. c. 7.)
"Item: Whereas of time not long past, within the city of Norwich, and
the counties of Norfolk and Suffolk, there were no more but six or eight
atturneys at the most coming to the King's Courts, in which time great
tranquillity reigned in the said city and counties, little trouble or
vexation was made by untrue or foreign suits, and now so it is, that in
the said city and counties there be four score atturneys or more, the
more part of them having no other thing to live upon, but only his gain
by the practise of atturneyship: and also the more part of them not
being of sufficient knowledge to be an atturney, which come to every
fair, market, and other places, where is any assembly of people,
exhorting, procuring, moving, and inciting the people to attempt untrue
and foreign suits for small trespasses, little offences, and small sums
of debt, whose actions be triable and determinable in Court Barons,
whereby proceed many suits, more of evil will and malice than of truth
of the thing, to the manifold vexations and no little damage of the