February 17.
Sittings after Term.
On the day after the expiration of every term, the courts of law continue to sit at Westminster, and try causes; and some judges come into London at the same time, for the same purpose. These sittings are called the “sittings after term,” and during these periods, suits, arising out of clashing claims of important interests, are usually decided by the verdicts of special juries, and other litigations are disposed of.
The origin and progress of every possible action, in a court of law, are succinctly portrayed by “the Tree of Common Law”—an engraving in vol. i. p. 234. It stands there for “ornament and use;”—there are plenty of books to explain technical terms, and show the practice of the courts; any uninformed person, therefore, may easily obtain further information as to the modes; and any respectable attorney will advise an inquirer, who states all the particulars of his case, concerning the costs of attempting to sue or defend, and the chances of success. After proceeding so far, it will be requisite to pause, and then, as paramount to the legal advice, common sense should weigh consequences well, before giving “instructions to sue,” or “defend,” in
———— that wide and pathless maze
Where law and custom, truth and fiction,
Craft, justice, strife, and contradiction,
With every blessing of confusion,
Quirk, error, quibble, and delusion,
Are all, if rightly understood,
Like jarring ministers of state,
’Mid anger, jealousy, and hate,
In friendly coalition joined,
To harmonize and bless mankind.
To some “whimsical miscellanies,” subjoined at the place aforesaid, can be added or annexed, more or many others, of the same or the like kind. The realities of law may be relieved by the pleasures of imagination, and the heaviness of the “present sittings” be enlivened by a reported case, in the words of the reporter, (Stevens’s Lect.) premising, however, that he first publicly stated, with his head in his wig, and with a nosegay in his hand,
“Law is—law,—law is law, and as, in such and so forth, and hereby, and aforesaid, provided always, nevertheless, notwithstanding. Law is like a country dance, people are led up and down in it till they are tired. Law is like a book of surgery, there are a great many terrible cases in it. It is also like physic, they that take least of it are best off. Law is like a homely gentlewoman, very well to follow. Law is also like a scolding wife, very bad when it follows us. Law is like a new fashion, people are bewitched to get into it; it is also like bad weather, most people are glad when they get out of it.” The same learned authority observes, that the case before referred to, and hereafter immediately stated, came before him, that is to say,
Bullum v. Boatum.
Boatum v. Bullum.
There were two farmers, farmer A and farmer B. Farmer A was seized or possessed of a bull; farmer B was seized or possessed of a ferry-boat. Now the owner of the ferry-boat, having made his boat fast to a post on shore, with a piece of hay, twisted rope fashion, or as we say, vulgo vocato, a hay-band. After he had made his boat fast to a post on shore, as it was very natural for a hungry man to do, he went up town to dinner; farmer A’s bull, as it was very natural for a hungry bull to do, came down town to look for a dinner; and the bull observing, discovering, seeing, and spying out, some turnips in the bottom of the ferry-boat the bull scrambled into the ferry-boat—he eat up the turnips, and to make an end of his meal, he fell to work upon the hay-band. The boat being eaten from its moorings, floated down the river, with the bull in it: it struck against a rock—beat a hole in the bottom of the boat, and tossed the bull overboard. Thereupon the owner of the bull brought his action against the boat, for running away with the bull, and the owner of the boat brought his action against the bull for running away with the boat.
At trial of these causes, Bullum v. Boatum, Boatum v. Bullum, the counsel for the bull began with saying,
“My lord, and you, gentlemen of the jury,
“We are counsel in this cause for the bull. We are indicted for running away with the boat. Now, my lord, we have heard of running horses, but never of running bulls before. Now, my lord, the bull could no more run away with the boat than a man in a coach may be said to run away with the horses; therefore, my lord, how can we punish what is not punishable? How can we eat what is not eatable? Or how can we drink what is not drinkable? Or, as the law says, how can we think on what is not thinkable? Therefore, my lord, as we are counsel in this cause for the bull, if the jury should bring the bull in guilty, the jury would be guilty of a bull.”
The counsel for the boat affirmed, that the bull should be nonsuited, because the declaration did not specify of what colour he was; for thus wisely, and thus learnedly spoke the counsel: “My lord, if the bull was of no colour, he must be of some colour; and if he was not of any colour, of what colour could the bull be?” I overruled this objection myself (says the reporter) by observing the bull was a white bull, and that white is no colour: besides, as I told my brethren, they should not trouble their heads to talk of colour in the law, for the law can colour any thing. The causes went to reference, and by the award, both bull and boat were acquitted, it being proved that the tide of the river carried them both away. According to the legal maxim, there cannot be a wrong without a remedy; I therefore advised a fresh case to be laid before me, and was of opinion, that as the tide of the river carried both bull and boat away, both bull and boat had a right of action against the water-bailiff.
Upon this opinion an action was commenced, and this point of law arose, how, whether, when, and whereby, or by whom, the facts could be proved on oath, as the boat was not compos mentis. The evidence point was settled by Boatum’s attorney, who declared that for his client he would swear any thing.
At the trial, the water-bailiff’s charter was read, from the original record in true law Latin, to support an averment in the declaration that the plaintiffs were carried away either by the tide of flood, or the tide of ebb. The water-bailiffs charter stated of him and of the river, whereof or wherein he thereby claimed jurisdiction, as follows:—Aquæ bailiffi est magistratus in choisi, sapor omnibus, fishibus, qui habuerunt finnos et scalos, claws, shells, et talos, qui swimmare in freshibus, vel saltibus, riveris, lakos, pondis, canalibus et well boats, sive oysteri, prawni, whitini, shrimpi, turbutus solus; that is, not turbots alone, but turbots and soals both together. Hereupon arose a nicety of law; for the law is as nice as a new-laid egg, and not to be understood by addle-headed people. Bullum and Boatum mentioned both ebb and flood, to avoid quibbling; but it being proved, that they were carried away neither by the tide of flood, nor by the tide of ebb, but exactly upon the top of high water, they were nonsuited; and thereupon, upon their paying all costs, they were allowed, by the court, to begin again, de novo.