PUNCH ON SPECIAL PLEADING.
INTRODUCTION.
Before administering law between litigating parties, there are two things to be done—in addition to the parties themselves—namely, first to ascertain the subject for decision, and, secondly, to complicate it so as to make it difficult to decide. This is effected by letting the lawyers state in complicated terms the simple cases of their clients, and thus raising from these opposition statements a mass of entanglement which the clients themselves might call nasty crotchets, but which the lawyers term "nice points." In every subject of dispute with two sides to it, there is a right and a wrong, but in the style of putting the contending statements, so as to confuse the right and the wrong together, the science of special pleading consists. This system is of such remote antiquity, that nobody knows the beginning of it, and this accounts for no one being able to appreciate its end. The accumulated chicanery and blundering of several generations, called in forensic language the "wisdom of successive ages," gradually brought special pleading into its present shape, or, rather, into its present endless forms. Its extensive drain on the pockets of the suitors has rendered it always an important branch of legal study, while, when properly understood, it appears an instrument so beautifully calculated for distributive justice, that, when brought to bear upon property, it will often distribute the whole of it among the lawyers, and leave nothing for the litigants themselves.
CHAPTER I. OF THE PROCEEDINGS IN AN ACTION, FROM ITS COMMENCEMENT TO ITS TERMINATION.
Actions are divided into Real, in which there is often much sham; Personal, in which the personality is frequently indulged in by Counsel, at the expense of the witnesses; and Mixed, in which a great deal of pure nonsense sometimes prevails. The Legislature being at last sensible to the shamness of Real, and the pure nonsense of Mixed actions, abolished all except four, and for the learning on these subjects, now become obsolete, we must refer to the "books," which have been transferred to the shops of Butter, from the shop of Butterworth.[8]
There are three superior Courts of Common Law, one of their great points of superiority being their superior expense, which saves the Common Law from being so common as to be positively vulgar; and its high price gives it one of the qualities of a luxury, rendering it caviare to the million, or indeed to any but the millionaire. These Courts are the Queen's Bench—a bench which five judges sit upon; the Exchequer, whose sign is a chess or draught-board—some say to show how difficult is the game of law, while others maintain it is merely emblematic of the drafts on the pockets of the suitor; and thirdly, the Common Pleas, which took its title, possibly, from the fact of the lawyers finding the profits such as to make them un-Common-ly Pleas'd.
The real and mixed actions not yet abolished, are—1st, the Writ of Right of Dower, and 2d, the Writ of Dower; both relating to widows; but as widows are formidable persons to go to law against, these actions are seldom used. The third is the action of Quare Impedit, which would be brought against me by a parson if I kept him out of his living; but as the working parsons find it difficult to get a living, this action is also rare. The fourth is the action of Ejectment, for the recovery of land, which is the only action that can not be brought without some ground.
Of personal actions, the most usual are debt, and a few others; but we will begin by going into debt as slightly as possible. The action of debt is founded on some contract, real or supposed, and when there has been no contract, the law, taking a contracted view of matters, will have a contract implied. Debt, like every other personal action, begins with a summons, in which Victoria comes "greeting;" which means, according to Johnson, "saluting in kindness," "congratulating," or "paying compliments at a distance;" but, considering the unpleasant nature of a writ at all times, we can not help thinking that the word "greeting" is misapplied. The writ commands you to enter an appearance within eight days, and, by way of assisting you to make an appearance, the writ invests you, as it were, with a new suit.
The action of Covenant lies for breach of covenant, that is to say, a promise under seal; and under wafer it is just as binding, for you are equally compelled to stick to it like wax.
The action of Detinue lies where a party seeks to recover what is detained from him; though it does not seem that a gentleman detaining a newspaper more than ten minutes at a coffee-house would be liable to detinue, though the action would be an ungentlemanly one, to say the least of it.
The action of Trespass lies for any injury committed with violence, such as assault and battery, either actual or implied; as, if A, while making pancakes, throws an egg-shell at B, the law will imply battery, though the egg-shell was empty.
The action of Trespass on the Case lies, where a party seeks damages for a wrong to which trespass will not apply—where, in fact, a man has not been assaulted or hurt in his person, but where he has been hurt in that tender part—his pocket. Of this action there are two species, called assumpsit, by which the law—at no time very unassuming—assumes that a person, legally liable to do a thing, has promised to do it, however unpromising such person may be; and trover, which seeks to recover damages for property which it is supposed the defendant found and converted, so that an action might perhaps be brought in this form, to recover from Popery those who have been found and converted to the use, or rather lost and converted to the abuses, of the Romish Church.
Having gone slightly into the different forms of actions; having just tapped the reader on the shoulder with a writ in each case, which, by the way, should be personally served on him at home, though the bailiff runs the risk of getting sometimes served out, we shall proceed to trial—perhaps, of the reader's patience—in a subsequent chapter.
CHAPTER II. OF THE DECLARATION.
The writ being now served, it is next to be returned, and this is sometimes done by giving it back at once to the bailiff or throwing it in his face. Such quick returns as these would bring such very small profit to a plaintiff that they are not allowable, and the writ can only be returned by the sheriff bringing it back, on a certain day, into the superior court. He then gives a short account, in writing, of the manner in which the writ has been executed; but, if the bailiff has been pumped upon—as we find reported in Shower—or pelted with oysters, as in Shelley's case, or kicked down stairs, as he was in Foot against the Sheriff, it does not seem that the particulars need be set forth.
If the defendant does not appear within eight days after the writ has come "greeting," as if it would say, "my service to you," the plaintiff may, in most cases, appear for him; and this shows how true it is that appearances are often deceitful and treacherous; for, when a plaintiff appears for a defendant, it is only to have an opportunity of appearing against him at the next step.
The pleadings now commence, which were originally delivered orally by the parties themselves in open Court, when success might depend on length of tongue; but the parties themselves being got rid of, in the modern practice, and the lawyers coming in to represent them, success usually depends on length of purse. The object of pleading, whether oral or written, is to bring the parties to an issue; which means, literally, a way out; but, in practice, the effect of getting plaintiff and defendant to an issue is to let them both regularly in.
Almost all pleas, except those of the simplest kind, must be signed by a barrister; who does not usually draw the plea, but he merely draws the half guinea for the use of his name. The pleading begins with the declaration, in which the plaintiff is supposed to state the cause of action; but in which he gives such an exaggerated account of his grievances, that not more than one-tenth of what he states, is to be believed. For example, if A has had his nose slightly pulled by B, the former proceeds to say that "the defendant, with force and arms, and with great force and violence, seized, laid hold of, pulled, plucked, and tore, and with his fists, gave and struck a great many violent blows, and strokes, on and about, diverse parts of the plaintiff's nose." If Jones has been given into custody by Smith, without sufficient reason; and Jones brings an action for false imprisonment; instead of saying, "he was compelled to go to a station-house," he declares that the defendant, "with force, and arms, seized, laid hold of, and with great violence pulled, and dragged, and gave, and struck a great many violent blows and strokes, and forced, and compelled him—the plaintiff—to go in and along divers public streets and highways, to a police office; whereby the plaintiff was not only greatly hurt, bruised, and wounded, but was also kept."
If Snooks's dog bites Thomson's pet lamb, Snooks declares, "That defendant did willfully and injuriously keep a certain dog, he, the defendant, well knowing that the said dog was and continued to be fierce and mad, and accustomed to attack, bite, injure, hurt, chase, worry, harass, tear, agitate, wound, lacerate, snap at, and kill sheep and lambs, and that the said dog afterward to wit, on the — day of ——, and divers other days, did attack (&c., &c., down to) and kill one hundred sheep and one hundred lambs of the plaintiff; whereby the said sheep and the said lambs (it will be remembered there was only one lamb), were greatly terrified, damaged, injured, hurt, deteriorated, frightened, depreciated, floored, flustered, and flabbergasted, to the damage of the plaintiff of £—, and therefore he brings his suit."
The various forms of declaration are so numerous, that they fill a volume of 700 large pages of Chitty, who is quite chatty on this dry subject, so much does he find to say with regard to it. To this able and amusing writer we refer those who are curious to know how a schoolmaster may declare for "work and labor, care, diligence, and attendance of himself, his ushers and teachers, there performed and bestowed in and about the teaching, instructing, boarding, educating, lodging, flogging, enlightening, thrashing, washing, whipping, and otherwise soundly improving divers infants and persons." These, and almost all other conceivable causes of action, are dealt with fully in the pages to which we allude, and all therefore who wish the treat of going to law, are referred to the treatise alluded to.