"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]
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.
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 fugæ 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]
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:—