'UI\IOSITIES AND i ODDrriES OF THE LA1 Franklin Fjske Heard THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW BMON ROUGE K CURIOSITIES 16&5 OF THE LAW REPORTERS BT FRANKLIN FISKE HEARD SAN FRANCISCO SmiNER WHITNEY & CO. 1885 5'IZ Cu. Entered according to Act of Congress, in the year 1881, BY FKANKLIN FISKE UKAKD, In tlie OflBce of the Librarian of Congress, at Washington. ? AxD know, my son, that I would not have thee believe that all which I have said in these books is law, for I will not presume to take this upon me. But of those things that are not law, inquire and learn of my wise masters learned in the law. Littleton. GG8J.45 Most Prefaces are effectually apologies, and neither the Book nor the Author one jot the Ijetter for thcni. If the Book be good, it will not need an apology ; if bad, it will not bear one: for where a man tliinks, by calling liimself noddy in the epistle, to atone for shewing himself to be one in the text, he does, with respect to the dignity of an author, but bind up two fools in one cover. Sir Roger D 'Estrange. CURIOSITIES OF THE LAW REPORTERS. R. EGBERT HALE, the father of the Lord Chief Justice, gave up the profession of the kw from scruples of conscience, being sliocked with legal fictions, — above all, " giving colour in pleading, which, as he thought, was to tell a lie." ^ YEAR BOOK, 50 Edw. III. fol. G, pi. 12. This was a case in whicli a question arose upon a lady's age ; her coun.sel pressed the court to have her before them, and judge by inspection whether she was within age or not. But " Candish, Justice," showing great knowledge of female character, says : " 111 n'ad nul home en Engleterre que puy adjudge a droit deins age on de plein age ; car ascun femes que sont de age de XXX ans voilent apperer d'age de XVIII ans." 1 Burael's Life of Ilule, p. 2. 2 CURIOSITIES OF IN Jones v. ]\Iarsh, Cas. Temp. Talb. G4, the case of Tarstow v. Weedon, 1 Abr. Eq. Cas. 149, was cited. But the Lord Chancellor said that Mr. Vernon had always grumbled at the determination of that case, and never forgave it the Lord Macclesfield, say- ing it was contrary to the constant practice of the court. -'IN BY St. Geo. IV. ch. 71, it is enacted that " If any person or persons shall wantonly and cruelly beat, abuse, or ill-treat any horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep, or other cattle,'' such person or persons are made liable to a penalty not ex- ceeding £5, nor less than lO.s. In Ex parte Hill,^ .Starkie and Holroyd contended before Bayley, J., that the bull was included in the statute under the term " other cattle." Curwood, contra, argued, that it was a rule in the construction of Acts of Parliament, that where there was an enumeration beginning with the lower degrees, and general words embracing others ejusdem generis at the end, these general words did not include a superior degree which was not named in the Act ; and he cited the case of the Archbishop of Canterbury ,2 where it was held, on the statute 13 Eliz. ch. 10, which mentions deans and chapters, parsons and vicars, and all other 2}ersons whatsoever having spiritual promotion, that tlie words did not 1 3 C. & P. 225. 2 2 Rep. 40. THE LAW REPORTERS. 3 extend to bishops, a superior order, who were not named therein ; and he contended, therefore, that as, in the statute in question, the enumeration began with ox, cow, and heifer, omitting bull, and concluded with other cattle, it did not include a bull, the bull and the bishop standing in pari statu with reference to the words of those statutes respectively. THE books contain the maxim, Via trita, via tuta. I do not know that this has yet been alleged as a reason for not rei^airing a highway. But it would make as good a defence as many I have heard." ^ IX ^Farch on Slander, A. D. 1648, it is said, with reference to the encouragement of actions of slan- der, "Though the tongues of men be set on fire, I know no reason wherefore tlie law should be used as bellows to blow the coals." THE Star Chamber decided that they might pun- ish the undue preparation of witnesses, though their testimony be tinie.^ 1 Scintillae Juris P- l'J3. 2 Dnrcy f. Lci^li, HolmH, 324. CURIOSITIES OF -\l JUSTICE CKOMrTOX recently i gave tin's brief description of Sir John Fenwick's Case : ^ " The House of Commons were unable to im- peach Sir John Fenwick of liigh treason because there was only one witness against him, the other having been spirited away; but they and the Lords passed a bill of attainder to cut off his liead on tlie evidence of one." LORD CA:\rrr.ELL mentions that Lord Erskine, when Lord Chancellor, in one of his judgments observed: "Lord Coke considers the Avord 'lunaticus' as l)y no means material, classing it with 'aniens' and ' demens,' and there is no doubt that the moon has no influence over lunatics ; and he notices that Vesey Jun., the reporter, represents this as a point decided by Lord Erskine, and writes this marginal note : ' In cases of lunacy, the notion that the moon has an in- fluence erroneous.' " ^ THE case of Lillcott v. Compton, reported by Ver- non,* merits commendation for the brevity with wliich the reporter gives the whole case in a single line: — " Plate shall pass by a devise of household goods." 1 Rcjrina r. Roves, 1 Best & Smith, p. 324. 2 13 Howell State Trials, 538. 8 Cranmer, Ex parte, 12 Ves. 445, 450. 4 Vol. II. p. 638. 60 Penn State Rep. 223. THE LAW REPORTERS. 5 "~PEPOPkTS and Pleas of Assizes atYorke," by -Lt John Clayton, is the title of a very thin duo- decimo published in 1651. " If this book," writes Mr. Allibone, " will do all that ^Ir. Clayton promises for it, we should suppose that our friends the lawyers would insist on its immediate republication." — "You may see here how to avoid a dangerous jury to your client, what evidence best to use for him, how to keep the judge so he override you not ; so that, if it be not your own fault, — as too often it is for fear of favor, — the client may have his cause so handled as, if he be plaintiff, he may have his right, and if de- fendant, moderately punished, or recompensed for his vexation ; and such pleaders the people need." — Preface. %\ CERTATX rules of evidence which are noM' con- sidered fundamental, appear to have been alto- gether unknown in the seventeenth century. In the trial of Mr. Hawkins, a clergyman, for stealing money and a ring from Henry Larimore, in September 1668, Lord Hale admitted evidence to show he had once stolen a pair of boots from a man called Chilton, and that, more than a year before, he had }>icked the pocket of one Noble. In summing uj), Lord Hale said, after referring to the cases of Chilton and Xoble : " Tliis, ii' true, wouM render tlie prisoner nuw at the bar obnoxious to any jury." ^ 1 6 Howoll State Trial", 035. 6 CURIOSITIES OF SAUNDERS thus concludes his report of tlie case of the Dean, etc. of Windsor v. Gover : ^ " Sed non allocatur. For this fault alone judgment was given against the defendant by Twisdeu, liaynsford, and Morton, Justices (Kelynge, Chief Justice, being absent), who said that the plea in this point was alto- getlier insensible. But I believe their principal reason was, because they would not determine the matter of law." LORD JUSTICE KNIGHT BRUCE, at the con- clusion of the argument of a case containing a long statement of facts, summed them wp in ten lines, and concluded thus : " This is the whole case, as it appears to me, spread as it has been, and as lawyers do spread it, and as lawyers sometimes cannot help spreading it, over a multitude of sheets of paper." ^ THE statute 1 Edw. II. enacts that a prisoner who breaks prison is guilty of felony ; but if the prison be on fire, this is not so, "for he is not to be hanged because he would not stay to be burnt." ^ 1 2 Saund. 305 c, Gth cd. 2 In re The German Mining Co., 19 Eng. Law & Eq. Rep. 594, 595. 8 Plowden, 13. THE LAW REPORTERS. 7 STYLE, the reporter, from his own account,^ would seem to have been careful about what he put into his book as decided. In one case,^ after men- tioning that Chief Justice Glyn " argued long, much to the same effect as formerly," he apologizes for not giving his argument, by saying that, " having taken cold," he could not " distinctly hear him." He does not, however, make any excuse in the case of Weld V. Rumney,^ where he reports an argument as made by Twisden, at the Bar, in 1650, which Twisden him- self, when on the Bench, about twenty years after- wards, said, was "not one word of it true."* SIR CRESS^\T:LL LEVINZ, Attorney-General of Charles II., gave an opinion, as law officer of the Crown, upon the mode of trying the question whetlier certain imported "earthenwares be painted or not"; and tlie granting of a monopoly for " a new invention of making black pepper white." ^ LORD BACON, long ago, pointed out that " more doubts rise upon our Statutes, which are a text law, than upon the Common Law, which is no text law." 1 Style, 470. 2 Tlie rrotcctor r. Buckner, Style, p. 470. « Styl..-, 318. < 1 Mod. 29G. ' 2 (Jhalniers'B Opioions, 284, 320. 8 CURIOSITIES OF IT is recorded ttf the saints of the rtcpuhlic, that, in reciting the Lord's Prayer, they woultl never say " Thy kingdom come," but always " Thy coni- monwealtli come." From a similar spirit, prolxihly, though with better sense, the Court of King's Bench was styled during the time of Style's and Aleyn's Eeports the Upper, or Public Bench.^ " A CCOPDIXG to the best English writers," said -^-J^ Baron Alderson,^ " the word ' inventory ' in- cludes a description of a person as well as of those parts of liis dress or other matters which are particu- larly specified. Thus Shakespeare sjieaks of a lady being inventoried : ' I will give out divers schedules of my beauty : it shall be inventoried, and every j)article and utensil labelled to my will.' " ^ IX " The Epistle to the Reader," the editor of Golds- borough, in 1653, while language was yet more nervous than polite, says : " For thy further satisfac- tion know, that thou hast not here a deformed brat, falsely fathered upon the name of a dead man, — too usual a trick played by the subtile gamester of this serpentine age." 1 For this passage, I am indebted to Mr. Wallace. The Reporters, 200, 3d ed. 2 Taylor ». Rullen, 5 Exch p. 786. * Twelfth Night. Act I. Scene 5. THE LAW REPORTERS. 9 IX a recent case iu the House of Lords/ counsel argued thus : " It is ditticult to suppose any species of profits which the phrase ' certain and un- certain profits' would not comprehend. Like Sinclair's ■well-known division of sleeping into two sorts, namely, sleeping with or sleeping without a nightcap, it would seem to exhaust the subject." IX 1835 David Gibbons, " Esquire of the Middle Temple, Special Pleader," published " A Treatise on the Law of Limitation and Prescription." This is the motto on his title-page : — " My Galli-gaskins, that have long withstood Tlie winter's fury, and encroaching frosts By Time subdued (what will not Time subdue ?) " J. Phillips's Splciidid Shilling. ^ LOUD ELLP:XB0R0UGH was puzzled to decide wliether the letter " s " was a fatal variance in this case: A declaration alleged that the defendants, a partnership firm, made a bill of excliange, " tlieir own hond.i being thereto subscribed." The (blficulty was that tlie word " hand " was in tlie phual. lUit lie refused to nonsuit.^ 1 Repfon r. Ilodfj-jon, 3 llouso of fiords Cases, p. 79, 3 Jones r. Muri4, 2 Cunipb. 306. 1* 10 CURIOSITIES OF "TTT'HEN Littleton prayed judgment in a quare VV iuipedit, Year Book, Mich. 35. Hen. VI., Prisot, Chief Justice, protested : " I marvel miglitily that you are so hasty iu this matter ; for it is a weighty matter ; and I have seen similar matters pending for t\velve years ; and this matter has been pending only three quarters of a year." TO his report of the case of ^^^leatley v. Lane,^ Saunders appends this characteristic "note" : "It was argued twice, and much debated, and I believe is now settled : but the conveniences or inconveniences which may follow are not yet known." IN the Liber Assissarum, p. 177, is a case in which Thomas de Setone, one of the judges of the Common Pleas, in 30 Edw. III. recovered damages from a woman for calling him " traitor, felon, and robber " in tlie public court. IN a case in 4 Leonard, 198, " a point of law is agreed by the court, and athrmed by the clarks." ^ 1 1 Saund. 219. 2 Compare Bacon, Kssay LVI. " Of Judicature " : " An ancient clerk, skilful in precedents, wary in proceedings, and understanding in the business of the court, is an excellent finger of a court; and doth many times point the way to the judge himself." THE LAW REPORTERS. H PLOWDEX says the reporters deliberated iipoii doubtful resolutions. If the progeny were rickety, or likely to prove mischievous, they smoth- ered it. It is matter of regret that a similar course is not pursued by the reporters of the present day. If it were, the " books of Eeports " would be materially reduced in size. THE judgment in a very recent leading case ^ in tlie Court of Exchequer Chamber concludes thus tersely : " In the result we come to the conclu- sion that the case of the plaintiff, so far as it rehes on authority, fails in precedent ; and, so far as it rests on principle, fails in reason." A widow shall have house-room, and meat, and drink in common for forty days; but she may not kill a bullock within those forty days after the death of her husband, in which time her dower ought to be a.ssij;ned her.^ ACCOPtDIXG to Bracton's description of arson^ this crime wa.s committed " when any one from turbulent sedition wickedly and feloniously made a conflagration." ^ 1 Rcdlmml r. Midland Railway Company, 9 nf"st & Sniitli, M^. a Noy Maxims, 27. « Cli. XXIV. fol. M. 12 CURIOSITIES OF THERE is a celebrated passage from one of Lord Plunket's speeches, relative to the Statutes of Limitation. " If time," says his lordship, " destroys the evidence of title, the laws have wisely and hu- manely made length of possession a substitute for that which has been destroyed. He comes with liis scytlie in one hand to mow down the muniments of our rights ; but in his other hand the law-giver has placed an hourglass, by which he metes out inces- santly those portions of duration which render need- less the evidence that he has swept away." This passage has been variously rendered in different pub- lications. In the case of Malone v. O'Connor,^ Chan- cellor Napier cited it as follows : " Time, with the one hand, mows down the muniments of our titles ; with the other, he metes out the portions of duration which render these muniments no longer necessary." This version is prol^ably more accurate than any other, as it was furnished to the Chancellor by one of the counsel in the quare impedit, on the trial of which Lord Pluuket made use of the imagery in his address to the jury.^ FE AE, fraud, and flattery : three unfit accidents to be at the making of a will.^ 1 Drury Cases in Chanc. Temp, Napier, 644. 2 'Statesmen of the Time of George HI." by Lord Brougham, 3d Series, p. 227 note. 1 Taylor Ev. § 67, 5th ed. 3 Noy Maxims, 97. THE LAW REPORTERS. 13 HAWKSHEAD, in his Essay on Wills, p. 335, relates tliis case : " I was once in the court of King's Bench, when one of the counsel was making a motion upon an affidavit filled with matters of ac- count and calculations of figures, which he was detail- ing to the judges, who rose, and one of them said (interrupting him). This court does not sit here as accountants ; and they retired." LORD TENTERDEN C. J. refused an amend- ment of a variance which, according to the marginal note of the reporter, " would not have oc- curred if common care had been taken in the draw- ing of the declaration ; " ^ thus sacrificing the suitor for the sake of punishing the attorney. IN" Croke Temp. Eliz. is this case : A poor man found a priest too familiar with his wife, and be- cause he spake it al)road and could not prove it, the priest sued him for defamation. A FAMILIAR maxim is thus tersely expressed : " lie that liath committed ini([uity shall not have equity."^ 1 .Jelf V. Oriel, 4 C. & P. 22. 2 Francis Muxlms, 5. 14 CURIOSITIES OF FEOM tlie rare and interesting A^olume entitled "Choyce Cases in Chancery," ed. 1G72, we print a few of the " Choyce Cases." As an exhibition of Elizabethan habits, manners, and peculiarities, they are quite instructive. COSTS against the clerk for mistaking tlie sub- prena. The defendant was dismissed for want of a bill, and forty shillings given him ; whereupon he bespake tlie subpoena for costs, and Kobert Bailes, clerk, made the subpoena ad comparend., which being served, the other appeared and got costs, both which costs were discharged, and ordered that the plaintiff may have a subpoina against the said clerk, Eobert Bailes, for the costs. Fairbanck, plaintiff. Domina Metham, defendant. Anno 21 et 22 Eliz.^ MAXTEL, one of the defendants, maketh oath tlmt his wife hath a young child sucking upon her, without whom he cannot directly answer. And that the other defendant is an infant under the age of twenty-one years. Therefore they are respited for answer until Trinity Term next.^ SUTTOIsr, plaintiff, Eringto, defendant, a suit upon a promise, and twelve pence accepted in consid- eration, referred to the common law.^ 1 Choyce Cases, p. 133. 2 Jbid. p. 120. s Ibid. p. 140. THE LAW REPORTERS. 15 PAEISHIOXEES sue their parson at every year's end to give a rye loaf and a red herring. The suit was on behalf of the parishioners, as well rich as Ijoor, for and concerning the yearly alms or distribu- tion supposed to be due, by the parson of the said parish, of a rye loaf and a red herring to every par- ishioner on St. Andrew's Eve. But that it appears by a record in the Exchequer, setting down the value of the said parsonage, that there is 13s. 4:d. yearly to be distributed in victuals at the same time to the ijoor of that parish, but not to the gentlemen and men of alilitif. And for that the defendant offered to give yearly 26 s. Sd. in lieu of the said 13 s. 4:d. to the poor of the said parish, who stand in need thereof, there- fore day is given to the plaintiffs to show cause why they should not accept thereof, or be dismissed. And after assent 40-s. a year was decreed yearly to the poor. Elmer and Smith, Church-wardens of North- would in the County of Norfolk, plaintiffs; Scot, parson, of the same town, defendant. Anno 24 Eliz.^ '•in THE plaintiff put in a replication of two skins of parchment of frivolous matter, and not fit to to be rejoined unto, of purpose to put the defendant to unnecessary charges, and therefore Master Godfry, being of counsel with the defendants, desired his client might not be compelled to put in a rejoinder, but that they may go to commission with the same, and ordered accordingly.^ 1 Choyce Cases in Chancery, p. 155. 2 \hu\. p. 157. 16 CURIOSITIES OF T}rE slieriff upon an attachment returned cepi corpiis et languidus in prisona. Whereupon a duces tecum was awarded ; and thereupon the sher- iff returned adhuc languidus. Forasmuch as Walter Williams made an oath that the defendant neither at the time of the return, nor now, is so sick but that he goeth abroad, therefore the sheriff is amerced live pounds for his false retm^n.^ LOED CAMPBELL in liis " Life of Lord Lynd- hurst," thus relates how a case in the House of Lords, involving an important question, was decided : " In the case of Johnstone v. Beattie,^ a great difficulty- arose from our being equally divided, and a fifth law lord, who did not usually attend the hearing in appeals, was called in to make a majority. A domi- ciled Scotchman, of large landed estate in Scotland, without any property in England, married to a Scotch woman, had by her an only child, a daughter, for whom, before his deatli, he duly appointed tu- tors and curators, domiciled in Scotland, who were confirmed by the Supreme Court in Scotland, and who by the law of Scotland were entitled to the guardianship of her person and the management of her property. Some years after the death of both parents, she, while still an infant, happened casually to be in England ; whereupon certain parties, wishing 1 Choyce Cases ia Chancery, p. 115. 2 lo Clark & Flnnelly, 42. THE LAW REPORTERS. 17 to obtain possession of her and to supersede the Scotch tutors and curators, who had acted unexcep- tionably in the guardianship of her person and her property since her father's death, filed a bill in chan- cery alleging falsely (as was admitted) that she had property in England, and praying that one of them might be aj^pointed her guardian, and that the Scotch tutors and curators should account to the English guardian for all the rents and profits of the Scotch estates. The Yice-Chancellor, the facts being laid before him, made an order to that effect, and this was affirmed by Lord Chancellor Lyudhurst. Upon an appeal to the House of Lords, the order appeared to Lord Brougliam and to myself not only absurd, but contrary to tlie law of England ; while Lords Lyud- hurst and Cottenham considered the proceeding as a matter quite of course and highly laudable, although tliey allowed that tlie person and property of the infant would hencefortli be under the control of the English guardian, and that during her minority she would ncjt without liis consent be allowed to marry or to return to lier native country. Lord Langdale, Master of the liolLs, being called in, after an argu- ment in his licaring, declared himself of tlie same oj)iiii()ii. TIlih was a most lamentable, hut hy no means singular, instance of tJtc narrow-mindedness of Enrjlish lawyers. Here three very able men, competent to form a sound c(mclusion upon any subject to wliich logical reasoning and common sense are to be a])plied, 18 CURIOSITIES OF were satisfied with this order, because it is hiid duwn in the books of practice that, as soon as a bill is filed to make an infant a ward of the court, the infant is a ward of the court, and a guardian ought to be ap- pointed, — so that any foreign child, male or female, brought to England for a few weeks or days, with a view to health or education or amusement, may be made a ward of Chancery and imprisoned in England till twenty-one. I did not much wonder at Cotten- ham and Langdale countenancing such nonsense, as they had never been freed from the trammels of the Equity draughtsman's office in which they learned to draw bills and answers ; but when I found tliat the masculine and enlightened mind of Lyndhurst did not revolt at it, I was filled with astonishment as well as dismay. The truth, I believe, was, that he had committed himself by affirming as Chancellor, more suo, without much considering whether the order appealed from was right or wrong." THE commencement of the preface to the third volume of IModern Reports, p. xiv, is curious : "Gentlemen, — All human laws are natural or civil." "This puts us in mind," says a very recent A\Titer, " of a humorous introduction to death, which we have somewhere read : — ' Death is common to all. It occurs but once.' " ^ 1 Woolrych Lives of Eminent Serjeants, Vol. I. p. 97 note. THE LAW REPORTERS. 19 IT seems that counsel liad beeu assigned to advise T\-ith Algernon Sidney, although they were not allowed to address the court. When Bamfield, one of these, rose as amicus curiai, and suggested in arrest of judgment that there was a material defect in the indictment, the Lord Chief Justice blandly observed, " We have heard of it already ; we thank you for your friendship, and are satisfied." lie then proceeded to pass sentence of death upon the pris- oner.i THE royal fish are whales and sturgeons, which, when either cast ashore or caught near the coast, belong to the Crown. Blackstone notices a curious distinction made by the old legal authorities, which is that tlie whale is to be divided between the King and the Queen, the King taking the liead and the Queen the tail ; the reason assigned being, that the Queen niiglit Iiave the wlialebone for lier Mardrol)e, although in fact the whalebone is found in the head, and not in the tail.^ IX Tremaine's " Placita Coronjc," p. 201, is a pre- cedent of an indictment against a counsellor, for betraying his client's cause and taking fees of the other side. » Howdl .Sfntc TrinN, 901. 2 Forsyth CoriHtitutioiiul Law, 178. 20 CURIOSITIES OF IN his judgment in INIoens v. Heywortli, ^ Baron Alderson observed : " I consider that if a j^erson makes a representation, or takes an oath, of that which is true, if he intend that the party to wliom the representation is made, should not believe it to be true, that is a false representation ; and so he wlio takes an oath in one sense kucwing it to be adminis- tered to him in another, takes it falsely. This may be illustrated by an anecdote of a very eminent ambassador, Sir Henry Wotton, who, when he was asked what advice lie would give to a young dii)loma- tist going to a foreign court, said, ' I have found it best ahvays to tell the truth, as they will never believe anything an ambassador says ; so you are sure to take them in.' Now Sir Henry "Wotton meant that he should tell a lie. This, no doubt, was only said as a witticism, but it illustrates my meaning." IN Montriou v. Jefferies,^ Abbott C. J. in summing up said : " No attorney is bound to know all the law. God forbid that it should be imagined that an attorney, or a counsel, or even a judge, is bound to knoAv all the law." THEPiE is an idiom in truth Mhich falsehood never can imitate.^ 1 10 M. & W. 158, 159. 2 2 C. & P. p. 116. 3 Lord Clianccllor Napier in Low v. Holmes, Druiy Cases in Clianc. Temp. Napier, 323. THE LAW REPORTERS. 21 IN Sims V. The State,^ wliicli was an indictment for larceny, the court charged the jury thus : " Gentlemen of the jury, if you believe the evidence, you will iind the defendant guilty." To this charge the prisoner very properly excepted. The court then said to the jury; " Go along, and find the defendant guilt ij!' On error the judgment was reversed, the Chief Justice saying, " The remark made to the jury after the charge was given was, to say the least of it, a great violation of judicial propriety, and no doubt had an influence with the jury, that did or might well Lave prejudiced the prisoner." AVe think no one will jjresume to c^uestion this conclusion of the learned court. LOKD IIAKDWICKE says 2 that Lord Holt him- self took exceptions to the indictment in the case of itex v. Keite, ^ in order to avoid the question whetlier a venire de novo may issue, in a case of felony, for a defective v6rdict. * I « OlfD IfOBAIlT remarked that special demurrers ' " exist tliat law may be an art." ' 43 .M:iliiiin:i, 33. - I!cx r. ISiirriil;,'!', 3 I'. Wins p. 4'jO. 3 IN-x r. Kcifc, 1 L.l. Iliiyin. p. I U. * .Jmlfjincnt in Cmiipljcll v. The {iuccii, 11 Q. R. p. 839. 22 CURIOSITIES OF ME. JUSTICE HUTTON charged the grand jury at Xorthain])ton, Avith regard to slii])-iuoney. Thomas Harrison, a clergyman of that county, fool- islily taking umbrage at this charge, and, " while tlie courts of Common l*leas. King's Bench, and Chancery were sitting, rushed to the bar of the Common Pleas, in the presence and audience of the justices there sit- ting," and cried out in a loud voice, " I do accuse Mr. Justice Hutton of high treason." He soon suffered for his temerity. He was indicted for the offence, and was fined £5000 and imprisoned, and required to make his submission in all the courts at Westminster. The only point of the case which does not tell to the credit of the judge is, according to his own report,^ that he also brought an action for damages against Harrison, and recovered £10,000.^ yX " The Tractice Unfolded " of the High Court of -L Chancery, pp. 31, 32, ed. 1672, are two cases which are models of accuracy and brevity : — "Warwick Hospital contra Feilding, JNI. 9. Jac, the Lord Chancellor Ellesmere said that churches and hospitals lightly go down by trials in the countr}^, therefore stayed by injunction. Hill. 9. Jac, Duncumbe contra Randall, 8. Actions at law for one cause. Lord Egerton : This is barratry ; stay them all by injunction. 1 Hutton, 131. 2 Cro- Car. 503. THE LAW REPORTERS. 23 LOED riAY:\IOXD thus concludes tlie report of tlie case of the Bishop of St. David's v. Lucy, wliicli was a case of prohibition clearly witliin the jurisdiction of the House of Lords : " Xote, that Holt, Chief Justice, told me, that it' the Lords had been of opinion that the prohibition ouglit to have been granted, he never would have granted it." ^ ^ r I ^IIE widow shall have all her apparel, her bed, -L lier copher, her chains, borders, and jewels, by the lionourable custom of the realm, except her husband unkindly give any of them away. Or be it in deljt, that it cannot be paid without her bed, etc. yet she shall have her necessary apparel.'^ IT is said that the king can never be nonsuit ; and dues not appear by his attorney, as other men do, " for in contemplation of law," says Blackstone, " lie is always present in court." ^ IX Kx parte l^avis,* tlie agreement hi controversy, whicli was in tlie fonii (if a bond, was designated by the Lfjrd Chancellctr, Lord Westbury, as "an ingenious piece of mechanism." 1 1 \.i\ Rnym. 545, 8 Comin. V..1 I. \>. "270. « Ni.y .Mnximfi, 108, * Jur. N. S. 859, 801. 24 CURIOSITIES OF THE great sinecure of Chief Cleik of the Court of King's Bench, compensated by a pension of £9000 a year, falling vacant. Sir John Holt granted it to his brother Roland, and the question arose whether the patronage of it belonged to the Chief Justice or the King. This came on to be tried by a trial at bar before the three Puisne Judges and a jury. A chair was placed on the floor of the court for Lord Chief Justice Holt, on which he sat uncovered near his counsel. It was proved that the Chief Justices^ of the King's Bench had appointed to the office from the earliest times, till a patent was gTanted irregularly by Charles II. to his natural son, the Duke of Graf- ton ; and there was a verdict against the Cro"o^n, whicli was confirmed, on appeal, by the House of Lords.^ IiST a bastardy case, j\Ir. Justice Emery speaks of a certain statute as "an experiment to do some justice to an unoffending being, brouglit into, the world by the ardent original efficiency of man, not under the sanction of the marriage covenant." ^ SAVILE'S REPOETS. An accomplished legal bib- liographer says that " this book seems to be pretty much in the condition of Pope's ' most women,' and to have 'no character at all.' " 1 BridffTTian r. Tlolt, Shower P. C. 111. Skinner, 354. Regina v. Suffolk, 18 Q. B. 420. 2 Woodward i: Shaw, 18 Maine, 308. THE LAW REPORTERS. 25 IX Wright V. Crump,^ Holt C. J. states the case of the mayor of Hereford, who claimed title to a house in Hereford, where a court was held, and he hy charter was sole Judge of the court. In order to recover the house, he made a lease of it to A., that A. might bring ejectment before him. A. did so, and the mayor, says Lord Holt, " in effect, was judge in his own cause, and he gave judgment for his own lessee " ; and upon complaint in this matter, in the King's ^ Bench, the court granted an attachment, and the mayor was laid by the heels ; ^ though it is said by one of the reporters, " he got off the easier for that he had Ijeen an old cavalier." ^ NO wonder that Bacon should have commended " the excellent brevity of the old Scots acts." Here is a specimen, an actual statute at large, com- ])r(jliensive, and worth a small library of modern 4atute-books, if it was duly enforced : " Item, it is statute and ordained, that all our Sovereign lord's lieges l)eing under his obeisance, and especially the isles, be ruled by our Sovereign lord's own laws, and the common laws of tlie realm, and none other laws." 1 2 1.(1. Raym. 766. 1 Salk. 201. 6 Ciish. 332. 2 To "lay by the lioels" was tlie tcclinical expression for coininittinf» to prison. The Chiof Ju.«ticc says to KalstalT: " To punish you by the. heels wouM nmcMfl tlie attention of your ears; and I care not if 1 do lieeouio ■our j)liysician." — Serrmd Part of King llvnry I \'. Act I. Si'oiic 2. » 7 .Mod. 1. 7 Mass. 200. 2 26 CURIOSITIES OF READ V. Legard was an action brought for neces- saries supplied to the defendant's wife at a time when he was confined in an asylum as a dangerous lunatic. In the course of the argument, Alderson, B., inquired of the plaintiff's counsel if they should not apply to the Court of Chancery for relief. They re- plied : " While the grass is growing, the steed starves ; while the Court of Chancery is deciding the cause, the woman might starve." The court decided that the action could be maintained.^ M,' CHIEF JUSTICE SHEPLEY, of Maine, thus con- cludes an elaborate opinion : — " Upon the construction of this will there have been, it is said, different opinions and doubts among members of the profession for thirty years. If it be so, it may not have been wholly without a precedent ; for Lord Eldon commences his opinion in the case of Earl of Eadnor v. Shafto, 11 Ves. 453, with the re- mark : ' Having had doubts upon this will for twenty years, there can be no use in taking more time to consider it.' "With the best light to be obtained by a more limited consideration and examination, the Court has come to a very satisfactory conclusion respecting the correct construction of the devise to Othiel Pratt." ^ 1 15 Jur. 494. See Shaw v. Thompson, IG Pick. 198, 200. 2 Pratt V. Leadbetter, 38 Maine, 17. THE LAW REPORTERS. 27 SOUTHOLD brought an action against Daunstou • for speaking these words : " Soiitholcl hath been in bed with Dorchester's wife," whereby he lost his marriage. Serjeant Bing moved unsuccessfully that these words are not actionable ; for it may be he was in bed with her when he was a child, she being his nurse, or it may be that her husband w^as in bed betwixt them ; and words shall be taken in mitiori sensu when any construction can be made to help it. " But Jones and myself conceived," says Croke, " that such foreign intendments as have been alleged shall not be taken, but it shall be adjudged ex effectu dicendi, which is here to hinder him of his marriage, as it is now^ found by the verdict ; but they would advise thereof. And it was afterwards adjudged for the plaintiff. ^ MR JUSTICE IlICHARDSOX, in delivering the opinion in a case^ relating to justices of the peace, said : " Though I cannot add with the good Prior (speaking of women) — " ' Lit all thfir ways be unconfined,' yet I will say with him, — " ' 15i; to their faults a little liliiid, And to their virtues very kind.' "8 1 Southold V. DauHBton, Cro. Car. 209. 2 Kcid V. Hf>od, 2 Nott & McCord, j). 172. ■' Anotlier roadiDg of this jjO-ssago wliich is quoted from " An Knglish I'adlock," is tliis: — " lU; to lier virtues very kind; Uc to her faults a little blind." 28 CURIOSITIES OF AN old decision is thus stated by Hon. William M. Evarts;! "The Year-Book contains the following story : It seems that somebody had been so rude as to call a clergyman a fool, with a prefixed ex- pletive, which gave point to the stigma wrung from the arsenals of theological denunciation, and not from the technical words of the law. Now, in an action of slander, the point came up distinctly, — for, with- out special damage proved, we hold such words inju- rious only when they injure tlie party spoken of in his profession, — and the court held that it was not actionable, for it did not injure the clergyman in his profession. But the court said that had it been of the lawyer, or of the medical profession, it would have been otherwise. Or, as the old law French more tersely has it, Farce que on peut estre bon par- son et gTand fou ; d'un attorney aliter." IN Riddle v. Welden ^ it was decided that the goods of a boarder are not liable to be distrained for rent due by the keeper of a boarding-house. Chief Justice Gibson, in delivering the opinion of the court, said that Falstaff " speaks with legal precision when he demands, ' Shall I not take mine ease in mine inn ? '" 1 American Law Review, Vol. III. p. 343. 2 6 Wharton, 15. THE LAW REPORTERS. 29 IX a recent case ^ the Court of Queen's Bench were called upon to give a judicial construction to the ^\"ord " team." In the course of the argument, Mr. Justice Blackburn cited Wordsworth's use of the word : — "Yes, let my master fume and fret, Here am. I, with inj- horses yet ! My joll}- Team, he finds that ye ^Vill work for nobody but me." The Waggoner, Canto I. And also Shakespeare's. He describes Queen Mab as " drawn with a team of little atomies." ^ — Romeo ami Juliet. Act I. Scene 4. And Mr. Justice Crompton cited the following old epigram : — " Giles Jolt, as sleeping in his cart he lay, Some waggish jiilfrers stole his team away. Giles wakes and cries, 'What 's here, odds Dickens ! what ? Why, how DOW, am I Giles or am I not ? If he, I 've lost six geldings to my smart ; If not, odd.s buddikins ! I 've found a cart.' " Elegant Extracts, Vol. IV. p. 296. London, 1791. And in his judgment he .saitl : " It is not made out to my satisfaction that the word ' team ' implies, Ijcsides horses, a cart or vehicle of some kind. I think that according to the modern use of tlie word it does not. Thus you speak of tlie team a man ' Duke of Miirlltorough v. Osborn, 6 Best & Sniitli, 07 (ISO I). - It wiis Hai'J ut tlic bar, tlmt " u team of counsel means a number cf couDBcl following ono alter another." 30 CURIOSITIES OF worked a coach with, and if tlie word 'team' were confined to lines of animals, a line of pigs would afford a ludicrous instance." BY St. Westminster the First, 3 Edw. II. A. D. 127G, the time of memory was limited to the reign of Kichard I. July 6, 1189. "And for all prac- tical purposes," said "Mr. Justice Wilde,-' "it might as well be reckoned from the time of the creation." But in 1868 this limitation was practically applied in a well-considered case in the Court of Exchequer Chamber. " The true principle of the law applicable to this question," said Kelly C. B., "is, that when a fee has been received for a great length of time, the right to which could have had a legal origin, it may and ought to be assumed that it was received as of right during the whole period of legal memory, that is, from the reign of Eichard I. to the present time, unless the contrary is proved. In this case, the right to these fees may have had a legal origin before the time of memor;; ; and the evidence that they, have been taken in modern times, dming a period of nearly fifty years, leads to the presumption that they were lawfully taken in the time of liicliard I. unless the payment at that time be disproved." ^ 1 Coolidge V. Learned, 8 Pick. p. 508. 2 Bn-aiit V. Foot, Law Rep. 3 Q. B. 497, 505. See the admirable judgment of Mr. Justice Keating, p. 512. 2HE LAW REPORTERS. 31 IX 1772 Lord Mansfield decided that there was no property in slaves, and in answer to the plea of the vast property, amounting to millions, at issue on the question, he uttered the memorable maxim : " Fiat Justitia ruat Ccelum." ^ In 1768, in an equally celebrated case, he made use of the same maxim.^ Sir Thomas Browne has, in his " Eeligio Medici," ^ A. D. 1642, "Piuat coeluni fiat voluntas tua." A re- cent writer * says the phrase used by Lord Mansfield is found in "Ward's " Simple Cobbler of Aggawam in America," the first edition of which was printed in 1645. w IN The Queen v. Tutchin,^ Powys J. and Gould J. having delivered opinions one way, and Powell J. and Holt C. J. the other, the report concludes with tlds note : " Powys J. recanted instanter, and Gould J. hx'sitabat." F I LOW'S Case, Year-Book, 12 Hen. VIII. 3, pi. 3. Eliot J. went so far in his depreciation of dogs, as to lay down that dogs are vermin, and for that reason the Church would not debase by taking tithes of them.* 1 Somerset's Case, I^fH, p. 17. 2 The King t. Wilkes, 4 Burrow, p. 2562. 3 Part Second, Sec. XF. * IJiirtlett. Fiimiliar QtiotationR, p. 680, 6tli ed. 6 Mo.1. p. 2f>7. 8 1 Smitli L C. ZM't, 6tli London ed. 32 CURIOSITIES OF PLEAS in abatement " should be certain to every intent, and be pleaded without any repugnancy." When a party resorts to the technicalities of the law, he must take special care that he omits none. " Let him who objects to informality in the proceedings of his opponents," remarks Eichardson, C. J., in Clarke V. Brown, 6 N. H. 435, " be himself in correct form." Neither in such case is the scriptural injunction in- applicable, — " Wlierefore let him that thinketh he standeth take heed lest he fall." — i Cor. x. 12.^ IN a case in the Year-book, 38 Edw. IIL pi. 14, the House of Lords commanded the Court of Com- mon Pleas to give a judgment. The Chief Justice refused. Afterwards, in his absence, the others com- plied, and gave judgment. The Court of King's Bench afterwards examined the proceedings of the House of Lords, and adjudged them void.^ IN " The Practice Unfolded " of the High Court of Chancery, ed. 1672, p. 41, is this case : A vexa- tious^plaintiff in forma pauperis, and not able to pay costs upon the dismission, hath been ordered by the Lord Egerton to be whipped, upon the equity of the St. 23 Hen. VIII. cap. 15, and no more to be admitted in formd paujjeris. 1 Getcliell V. Boyd. 44 Maine, 484. 2 12 Mod. p. 65. THE LAW REPORTERS. 33 YEAE-BOOK, Mich. 10 Hen. VI. fol. 8 b, pi. 30 (A. D. 1431). The Prior of W. brings writ on the Statute of Labourers against a chaplain for not chanting the mass. Strange ways J. : " The writ is not niamtainable by the statute; for you cannot compel a chaplain to sing in mass ; for tliat at one time he is disposed to sing it, and at another not; wherefore you cannot compel him by the statute." This case was commented on by some of the judges in the celebrated case of Lumley v. Gye.^ The plain- tiff, the proprietor of the Queen's Theatre, had con- tracted with Jolianna "Wagner, a celebrated opera- singer, to sing in the theatre for a certain time, with a condition tliat she should not sing elsewhere dur- ing the term without the plaintiff's consent in Amting. The question was, whether the plaintiff could main- tain an action against the proprietor of another theatre, Avho maliciously procured Miss Wagner to abandon her contract entirely. And a majority of the Court of Queen's Bench held that the action would lie. The judgment was delivered in June IS.").";. In the previous April the plaintiff fded a lull against Miss Wagner, to restrain her from singing at Gye's theatre.^ At this time Lord St. Leonards held the Great Seal. His lordship deci»led that the two jjositive and negative stipulations in the contract above named constituted only one contract, and that J 2 F.l. & r.I. 210. 2 LuiDley V. Wiigiipr, 1 De Gcx, Mncnnghtcn & Gonloii, C04, CIO. 2» 34 CURIOSITIES OF the court could not enforce performance of the wliole contract. " It is true," said the astute Chancellor, " that I have not the means of comjJcUing the lad/j to sing ; but she has no cause of complaint if I compel her by injunction to abstain from the commission of an act which she has bound herself not to do, and thus, possibly, compel her to perform her cngayement." \<^ IlSr England, the celebrated Ann, countess of Pem- broke, liad the office of hereditary sheriff of "West- moreland, and exercised it in person. At the assizes at Appleby, she sat with the judges on the bench.^ \w DEBITOEES non presumuntnr donare. " Yet debtors do make gifts, and large ones ; often giving away the whole of their estates. I have noticed that bankrupts are men of very tender affec- tions where their relations are concerned ; and they are so far unprejudiced that they oiiQXi prefer a credi- tor." — Scintillae Juris, p. 102. IN case for words which imported the committing of adultery by the plaintiff with Jane at Stile, the defendant, in mitigation of damages, may give in evi- dence, that the plaintiff committed adultery witli Jane at Stile, but not with any other M-oman.^ 1 Co. Litt. 320 a, note, ]9th ed. 2 Smithies v. Dr. Harrison, 1 Ld. RajntJ. 727. THE LAW REPORTERS. 35 LORD COKE, in Ins "Fourtli Institute," com- menting on the jurisdiction and power of justices of tlie peace, says, " It is sucli a form of subordinate government for the tranquillity and quiet of the realm as no part of the Christian world hath the like, if the same be duly executed." Shakespeare's picture of a justice of the peace, in the opening scene of "The j\Ierry Wives of Windsor," certainly differs from the office so unduly commended, in language so extravagantly flattering, by the Lord Chief Justice. It has been well said that Shakespeare's picture " is so tnitliful as to be hardly exaggerated or carica- tured. The original of the picture is confined to no aue." ACCORDING to the memorandum of a contem- poraneous reporter, Mr. Justice Heath refused kniglithood, saying, " I am John Heath, Esquire, one of liis Majesty's Justices of the Court of Common Bench, and so will die." ^ A CHAIN" of authorities Milton calls "a par- oxysm of cit;i(i(tns." 1 And Sliallow, in answer to l'.;iri|ol|)irs inquiry, " Wliidi is Justiro Shallow?" anHwerol, "I am Robert Sliallow, sir; a jwor csquiro of this roiinty, ami one of tin; Kin^j'ti justices of the peace." — Stcviul Purl (if King Henry IV. Act III. Scene 2. 36 CURIOSITIES OF IN deciding upon the validity or invalidity of deeds, courts of equity act upon more enlightened principles than courts of law ; and whenever it is shown to thein that any person by donation derives a benefit under a deed to the prejudice of another person, — and the more especially so, if any confi- dential or fiduciary relation subsists between the parties, — they so far presume against tlie validity of the instrument as to require some proof, varying in amount according to circumstances, of the absence of anything approaching to imposition, overreaching, undue influence, or unconscionable advantage. For example, if a deed of gift, or other disposition of property, be made in favor of a husband by a wife, a court of equity will regard the matter with jealous suspicion, and will either set aside the instrument as conclusively void, or wall throw upon the person benefited the burden of establishing, beyond all rea- sonable doubt, the perfect fairness and honesty of the entire transaction.^ A grotesque attempt has been made in Ireland to extend this salutary doctrine to a case which assuredly its framers never contemplated. A woman, while living in adultery with a married man, had in the ardor of her affection assigned some of her projjcrty to secure a debt which was owing by her paramour. "Wlien her passion cooled, her gener- osity seems to have cooled also ; and after the lapse of a short period she had the hardihood to a]iply 1 1 Taylor Ev. § 129. THE LAW REPORTERS. 37 to the Court of Chancery to set aside her assignment on the ground of undue influence. Her prayer was of course rejected, the court holding that the doctrine on which she relied for relief was only applicable when some lawful relation had been contracted be- tween the parties.^ yX "The Practice Unfolded" of the High Court of J- Chancery, p. 5, ed. 1672, is this ride of equity pleading which obtains at the present day : — " Xo couucellour ought to put his hand to any bill, answer, or other pleading, unless it be drawn, or at least periLsed by himself in the paper draught, before it be ingrossed, and they are to take care that the same be not stuffed with repetition of deeds, Avritings, or records in hiec verba ; but the effect and substance of so much of them only as is pertinent and material to \)Q set down, and that in Inief terms, without long and needless traverses of points not traversable, tau- toligies, multiplications of words, or other imperti- nencies, occasioning needless prolixity, that the an- rAcnt brevity, succiutness in bills, and other pleadings may l»e restored and oljserved." And on ]j. :>0 is a rule of practice which ought \a) obtain at the present day: — "The councel that misinforms the court in his mo- tions, or moves not informing the former order in the 1 Ilargrcavo v. Evcrard, Iri^h Va\. licp. N. S. 278. 38 CURIOSITIES OF cause, liath had his order so misgotten, thereby va- cated, and costs awarded to be paid by himself or his client, by himself if it lay iu 1dm to have informed himself better, or else by the client who misinformed his coimcel, and wliile this course was used little Mas there of references to consider of the truth of sucli in- formations. The councellor in respect of his credit, and the client for fear of such costs, being then careful not to misinform in any thing which they were sure to hear of again by motion of the adverse party to the next motion-day." MX THE Supreme Court of the United States does not consider " codes " to be the embodiment of true progTess ; or that " wisdom will die " with those that make them. With reference to the common law of Special Pleading, Mr. Justice Grier observed : " This system, matured by the wisdom of ages, founded on principles of truth and sound reason, has been ruth- lessly abolished in many of our States, who have rashly substituted in its place the suggestions of sciolists who invent new codes and systems of plead- ing to order. But this attempt to abolish all species, and establish a single genus, is found to be beyond the power of legislative omnipotence. The result of these experiments, so far as they have come to our knowledge, has been to destroy the certainty and simplicity of all pleadings, and introduce on the record an endless wrangle in writing, perplexing to THE LAW REPORTERS. 39 the court, delaying and impeding tlie administration of justice." ^ And by way of illustrating the absurd- ities into which such a course had actually led, the court names a case in which (at the end of a chaos of so-called pleadings) the jury gave a verdict for 8 1,200, and the court rendered judgment for four negroes!^ SO^IETHIXG more than the ceremony of marriage was necessary to give the wife a right of dower, by the laws of Xormandy. " C'est au coucher que la femme gagne son douaire " — " il faut qu'elle couche avec son mari pour acquirer son douaire c'est ce qui donne la derniere perfection a ce droit." ^ IX Xoy, 48, a precedent is cited in these words : "The jurors acquitted a prisoner contrary to their evidence, and for that they were fined and im- prisoned, and bound for the good behavior of the l»risoner during liis life." IX the index to the last London edition (A. D. 18G7) of Smith's Leading Cases, we find this title : " Eagle's Eyes, Court will not always look with." 1 McFaul r. numsey, 20 Ilownrd, p. 525. And sco the cnustic obson'si- tionsof the same acute jiulgc in Furni c. Tcsson, 1 Rhick, 315. * I'rcfucc to the Fourth Kdition of Gould on I'lcmliiif;. • Flaust, Coutumc dc Nonnandie, 528, cited 1 Washburn on Reiil I'lop- erty, 107. 40 CURIOSITIES OF ON" the danger of admitting presumptive evidence of death, Lord Langdale was in the liaLit of re- ferring to a very singular case, which happened within his own knowledge while he was on the bench. A sum of money in court was subject to a trust for a particular individual for life, and after his death was to be divided between certain parties. These parties petitioned for payment of the fund to them, on tlie ground that the individual in (question, the tenant for life, was dead. No positive evidence could be adduced of his death ; but it was said that his death must be presumed, inasmuch as the e^'idence showed that he had gone abroad some twenty or thirty years ago, under circumstances of diificulty, and that no human being had heard any tidings of him from that day to this. This did not satisfy Lord Langdale, and he desired the case to stand over, intimating that if further evi- dence could be produced to corroborate the already strong presumption, he would attend to it. Addi- tional affidavits were accordingly filed, after the lapse of some time, and the case then appeared so strong that he made the order for division of the fund as prayed. The extraordinary portion of the case re- mains to be told, — the order, when drawn up accord- ing to his lordship's directions, was carried to the proper office to be entered ; and the clerk, whose duty it wa.s to enter it, turned out to be the very- individual on whose presumed death the order for THE LAW REPORTERS. 41 payment ^\-as made. It seems that in early life he had been involved in scrapes and difficulties, which led him to fly his country, and to keep his residence and career a secret from all his relatives, — that he had returned in time, under a fictitious name, to England, where he at length obtained a situa- tion in the office in question, but without making himself known to any one, — that he was- ignorant of his right in the fund in question, and that, but for the remarkable accident just related, he would have been deprived of these rights, and the fund would have been prematurely given over to persons not then entitled to it. ABOUT the year 1554, Henry VIII. manumit- ted two of his villeins in these words, which are not without their application at the present day : " Whereas God created all men free, but afterwards tlie laws and customs of nations subjected some under the yoke of servitude, we think it pious and merito- rious with God to manumit Henry Knight, a taylor, and Herle, a Imsbandman, our natives, as being born within the manor of Stoke Clynnnysland, in our county of Cornwall, together with all their goods, lands, and cliattels ac([uir(!d or to be acquired, so as tlie said persons and their issue sliall from henceforth by us be free and of free condition." ^ ^ Uarriiigton on the Statutes, p. 80C, Cth od. 42 CURIOSITIES OF THOUGH evidence addressed to the senses, if judiciously employed, is obviously entitled to the greatest weight, care must be taken not to push it beyond its legitimate extent. The minds of jury- men, especially in the remote provinces, are grievously open to prejudices, and the production of a bloody knife, a bludgeon, or a burnt piece of rag, may some- times, byexciting the passions or enlisting the sympa- thies of the jury, lead them to overlook the necessity of proving iii what manner these articles are con- nected -svith the criminal or the crime ; and they con- sequently run no slight risk of arriving at conclusions, which, for want of some link in the evidence, are by no means warranted by the facts proved.^ The abuse of this kind of evidence has been a fruitful theme for the satirist; and many amusing illustrations of its effect might be cited from the best authors. Shake- speare makes Jack Cade's nobility rest on this founda- tion ; for Jack Cade having asserted that the eldest son of Edmund Mortimer, Earl of JNIarch, " was by a beggarwoman stolen away," "became a bricklayer when he came to age," and was his father, one of the rioters confirms the story by saying, " Sir, he made a chimney in my father's house, and the hricJcs are alive at this day to testify it ; therefore deny it not." ^ Archbishop Whately, who makes use of the above anecdote in his diverting " Historic Doubts relative to 1 1 Taylor Ev. § 501. 2 Part Second of King Henry VI. Act IV. Scene 2. THE LAW REPORTERS. 43 Napoleon Bonaparte," adds : " Truly this evidence is such as country people give one for a story of appari- tions ; if you discover any signs of incredulity, they triumphantly show the very house which the ghost haunted, the identical dark corner where it used to vanish, and perhaps even the tombstone of the person whose death it foretold." So, in the interesting story of " The Amber Witch," the poor girl charged witli witchcraft, after complaining that she was the victim of the sheriff, who wished to do "wantonness with her," added, that he had come to her dungeon the night before for that purpose, and had struggled with her, "whereupon she had screamed aloud, and had scratched him across the nose, as might yet be seen, whereupon he had left her." To this the sheriff re- plied, "that it was Jiis little lap-dog, called Below, which had scratched him while he played with it tliat very morning," and, ]ia\ing produced the doy, the I ourt were satisfied ^^•ith the trutli of his explana- tion.^ LOBD :\r AXSFIELD, while confessing a wish for popularity, added, in words wliich cannot Iw too often (pioted, " But it is that popularity which i'ollows, not that which is run after; it is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends liy nolilc means." ^ 1 The Aml)«r Wif<:li, trimslateil In- Lady Dufl' Gordon, pp. 78-80. 2 The King r. Wilken, 4 Burrow, 2002. 44 CURIOSITIES OF THE case of Poor v. Poor, 8 N. H. 307, was a libel filed by a wife, praying for a divorce, on the ground of extreme cruelty on the part of the husband. Tlie opinion of the court was delivered by Chief Justice Kichardson. It is too long to be quot- ed at length, but it will well repay a perusal. It is graced with quotations from Hudibras and from Virgil. The Chief Justice says : " Her next complaint grows out of a contest between them with respect to some wood, in August, 1833. Her story is tliat she sent a little girl out to procure some wood ; that Poor met the girl at the door and told lier ' she should not ; ' that she then went herself for the wood, and as she went out he went into the house. When she returned she found the door fastened, upon which she threw her wood into the house, through the window, and took a crowbar and knocked at the door — that Poor came out in a great passion, and using very profane lan- guage, which she repeats, but which we shall not, took the crowbar from her by force — that she screamed murder and he stopped her mouth. But at length she escaped, and soon after deserted the house. In the skirmish wliich ended in his taking the crowbar from her, she seems to have encountered some of ' The perils tliat environ Tlie man that meddles witli cohl iron,' and to have been rather roughly handled. But con- sidering the irritable temper of the Inisband, it seems to us that she escaped with quite as little injury as THE LAW REPORTERS. 45 she could have had any right to expect, iu such an attempt to take his castle by storm. " She has another complaint of personal chastise- ment inflicted by the husband, in the dispute about certain papers belonging to the society for educating pious 3'oung men, of whicli society she was treasurer. Her account of this affair is, that Poor took the papers from her drawer and put them into his desk — that she demanded them, and he refused to restore them — that a few days afterwards she liad an opportunity to obtain possession of them in his absence, and took them away. "When he came home and was informed of this, he flew into a violent passion, and, using very profane and abusive language finally horsewliipped her. " The wife was the treasurer of the society, and to take tlie papers from her without her consent and lock them up in his desk, certainly had the appearance, not only of unkindness, but of an unmanly meddling iu a concei-n which was exclusively under the management of the ladies who belonged to the society, and must have been calculated to vex and irritate the wife. " On the otlier hand, her taking advantage of his absence; to oiten the desk and take away the papers lias in it too much of the FIcctere si ncqiicD siiperos Aclicronta movebo, too mn<'h of a disposition to have her own w ill, and her own way, by foul means if not by fail', to Ije com- mended ill a wife, and was calculated to exasperate lif-r husband." 46 CURIOSITIES OF FEOM the language used Ly Lord Eaymond in his report of the case of Brewster v. Kitchin/ it woukl seem that he had no great respect for the justices who sat with Lord Holt. After mentioning a decisive objection to an action started by the Chief Justice, he says : " But the other three judges seemed to be in a surprise, and not in truth to comprehend this objection ; and therefore they persisted in their former opinion, talking of agreements, intent of the party, binding of the land, and I know not Avliat. They gave judgment for the plaintiff, against the opinion of Holt Chief Justice." IN the "Statutes of the Streets," printed in 1598, it is ordered that "no man .... shall whistle after the houre of nyne of the clock in the night," or " keep any rule whereby any such suddaine outcry be made in the still of the night, as making an affray or beating his wife or servant," etc. FORTESCUE affirms that "a jury is not, nor can be, bound by any opinion of the House of Com- mons, nor by any court of law in the world, but that of their own consciences." ^ 1 1 Ld. Raym. 322. 2 De Laud. Leg. Ang. p. 107. Cited in Broom Constitutional Law, p. 868. THE LAW REPORTERS. 47 HOLT C. J. " If a man solicits a woman and goes gently to work with her at first, and when he finds that will not do he proceeds to force, it is all one contiuned act, beginning with the insinuation and ending with the force. And this being an at- tempt and solicitation to incontinency, coupled with force and violence, it does by reason of tlie force, which is temporal, become a temporal crime in the whole. An indictment will not lie for a plain adul- tery, but libel in the spiritual will." ^ FliOM the journal of a Gloucestershire magistrate, A. D. 1715 to 1756, it appears that Frances Williams, a damsel who, loving well rather than wisely, is necessitated, on the 13th April 1715, to appear before the magistrate, in accordance with the law as it then stood, " to be examined about her great belly." A week subsequently she is again brought before him " touching the aforesaid felony !' IN a case in the Court of King's Bencli, in conse- quence of the affirmative of the issue being on tlie defendant, and liis beginning, the jnry found a verdict for the defendant when tliey intended to find ior the plaintiff. The court refused to grant a new trial.2 1 niRMnIt r. CiiUizar.l, HoU. r,l. 2 Bri"lgewof>il ». W yni), 1 Harrison & Wollnston, 674. Bridgcwntcr v, I'lymoutli, 97 M:i«». 382, 3'Jl. 48 CUPdOSlTlES OF LORD CAMPBELL, in his Life of Lord Lyiid- liurst, p. 1-41, gives the following account of the great case of The Queen, plaintiff in error, v. Milli-s.^ "The law lords were definitively divided upon the most important question which ever came before the House of Lords as the Supreme Court of Appeal. Unfortunately such a question was decided on tlie technical maxim by which the House of Lords alone, of all the tribunals I ever read of, is governed, — Semper pra^sumitur contra negantem, — making the result often depend upon the language in which the questioned is framed.^ In Ireland, a man who was a member of the Established Church was married to a woman who was a Presbyterian by a regularly offici- ating Presbyterian clergyman, both parties intending to contract a valid marriage, and believing that they had done so. They lived together some years as man and wife, and had .several children, who were acknowl- edged as legitimate. The husband then married another Avife, the former wife being still alive, and was indicted for bigamy. His defence was that the first marriage was a nullity, and therefore that he committed no crime when he married the second wife. Then arose the fearful question, whether by the common law of England there might be a valid mar- riage by the consent of the parties without the pres- ence of a priest episcopally ordained. For half a cen- 1 10 Clark & Finnelly, 534 (1844). 2 But see Duraut v. Essex Company, 7 Wallace, p. 113, and Appendix, p. 755. THE LAW REPORTERS. 49 tury, ever since the decision of Lord Stowell, in the famous case of Dahymple v. Dalryinple,^ it had been considered established doctrine that the presence of an episcopally ordained priest was unnecessary. This doctrine had been expressly approved of by Lord Ken- yon, Lord Ellenborough, Lord Tenterden, and all onr most eminent Judges, and upon the strength of it there had been repeated convictions for bigamy. But in an obscure book, lately j)ublislied, professing to state ' The Law of Husband and Wife,' ^ the doctrine was controverted ; and upon this doctrine proceeded this prisoner's defence. The Irish Judges were equally divided ; and, strange to say, the English Judges, be- ing consulted by the House of Lords, declared them- selves unanimously of opinion that the first marriage was null, although they admitted that this was con- trary to the Canon Law which prevailed in every other country of Europe before the Council of Trent. Tliey relied chielly on a supposed Anglo-Saxon law, that, to make nuptials prosperous, ' there must be I)resent a mass 2'>'>'^cst.' Yet they admitted that a marriage celcljrated by one in deacon's ordei's always was and is valid, notwithstanding that a deacon is not a mas.s priest. Six law lords Iiad been present at the argument, — the Lord Chancellor, Lord Lynd- Imrst, \jm\ Abinger, I^)rd Cottenham, Lord Jhougham, Ix>rd iJenman, and Ij(jrd Campbell. Of these, the 1 2 Hiigganl Cons. Rr-p. 04 (IHU). ' Kopcr oil the Luw of Ilusbaii'l ami Wife, ed. Jacob, 1826. 50 CURIOSITIES OF first three voted for reversing the conviction, and the last three for affirming it. "If the motion had been that the judgment be affirmed, we, tlie. contents, should have succeeded in establishing the old common law as laid down by Lord Stowell, the presumption being against the nega- tive ; but the Chancellor, according to a standing order of the House, put the question that ' the judg- ment be reversed,' and we were obliged to say 'Not content,' the presumption was against us, and a judg- ment passed by which hundreds of marriages, the validity of which had not been doubted, were nulli- fied, and thousands of children were bastardized." LORD COKE says that if a gentlewoman be termed " spinster," she may abate the writ. An indictment against Alicia S. of D. in the county of S., wife of F. S. spinster, etc. is not good ; for spin- ster being an indifferent addition for man or woman, should refer to F. S., which is the next antecedent, and so the woman has no addition.^ IN a recent case Chief Justice Erie observed : " It is certainly an odd sort of an estate, — a fee-simple in a profit a prendre." ^ 1 Dyer, 46 b. Noj- Maxims, 4. 2 Bailey v. Stephens, 12 C. B. N. S. p. 103. THE LAW REPORTERS. 51 THE following is Lord Langdale's graphic descrip- tion of Lord Cardigan's celebrated trial : " The House was rather thin of Peers. The case went off in a very absurd way. The indictment was for firing at Harvey Garnctt Phipps Tuckett, with intent to kill, etc. ; but when they came to prove this, there was no witness produced who knew Lieutenant Tuck- ett by any other name than ' Harvey Tuckett ' ; and the consequence was that Sir William Follett immediately objected that there was no evidence to sustain the indictment. " Strangers were therefore ordered to withdraw, and Lord Denman stated that he considered the objection valid, and in this he was supported by Lords Abinger, Brougham, Wynford, etc. ; and then, after a little debate whether the House should at once proceed to judgment, it \vas decided that they would; and the question of ' Guilty, or not Guilty ? ' being put, Lord Cardigan was immediately acquitted." ^ COXSEXT cannot give jurisdiction where the law has not siven it.^ " TUDGES may die, and courts be at an end ; but W il'afo Tlic Rpporfers, 190, 3d od. 66 CURIOSITIES OF IN" the " Assizes de Jerusalem " — one of the most curious and important relics of the jurisprudence of the Middle Ages, a compilation made towards the close of the eleventh century — we have a full account of the office, duties, and proper qualifications of a pleader. As a translation of this barbarous dialect may save tlie reader some trouble, the following very literal one is offered : ^ " Every person about to plead in the Supreme Court ought, before he begins, to pray the lord to appoint him counsel. He ought to pray, for his counsel, the best pleader in the court ; and this, whether he is himself a pleader or not ; because, in the latter case, he will need counsel to defend his right, and establish his claim or defence ; and even in the former, he will do well to have counsel ; since there is no pleader so wise, that he may not be often advised, on his pleading, by another , pleader ; as two pleaders know more than one, etc. He who has counsel, and wishes to make claim on some man or woman present in court, ought to say by his counsel to the lord, so that the other party may hear. Sir, such an one makes, before you, such a claim, and hopes to obtain justice, in that 1)ehalf, from you and the court ; and then he should say what he claims, and in the shortest way possible, etc. A good pleader ought to have good sense, a sound understanding, and a subtle genius ; he should be free from the faults of indecision, timidity, false shame, 1 Stephen on Pleading, Appendix, p. xiv. 9th Am. ed. THE LAW REPORTERS. 67 haste, and uouclialauce ; while he pleads, he sliould keep his^ attention from wandering to any other subject, and should also take care to avoid undue heat and asperity." Some of these admonitions seem to deserve the attention of the nineteenth no less than the eleventh century. THE old reporters often note the manner of the judges. Godbolt tells us that the "Lord Chan- cellor, smiling, said " ^ that a case might be doubted. EoUe questions the correctness of an opinion uttered by Coke, since " Haught semble a disallower ceo car il shake son capit at ceo." ^ And Saunders re]3orts a case where a majority of the court gave judgment for the plaintiff, but " Twisden Justice contratotis viribus, and that the action did not lie." ^ In recording the judgments of this somewhat passionate judge, the reporters begin, " Twisden, in furore, observed," etc.* "T I 'I HEY [corporations] cannot commit trespass nor J- be outlawed nor excommunicate, for they have no souls." — 10 Kep. 32 b.^ 1 Lord Mountjoy's Case, Godbolt, 18. 2 Hudson V. Burton, 1 Rolle Rep. 189 8 Pomfret v. Ricroft, 1 Saund. 322. * See Saunders, passim. 6 Recent cases liavo decided that an action will lie at the suit of or against a corporation for a libel. Whitfield v. Southeastern Riiilway Company, 27 L. .1. Q. R. 229. Metropolitan Saloon Omnibus Company, V. Hawkins, 2b L. .1. K.xrli. 201. 68 CURIOSITIES OF OF a recent Act of Parliament, it was remarked by ]\Ir. Justice Maule, " that it was incongruous and impossible of operation, and its absurdities so great that the framers themselves had no very dis- tinct notion of its meaning." ^ In a very recent case,^ Blackburn J. observed with respect to an Act passed in 1746: "The statute, though not drawn in modern times, is somewhat obscure." PLO WDEIST states this case • If a woman is warden of the Fleet, and one imprisoned in. the Fleet marries her, it is an escape in the woman and the law adjudges the prisoner to be at large, for he cannot be lawfully imprisoned but under a keeper, and he cannot be under the custody of his wife, for which reason the law must necessarily adjudge him to be at larsre.^ YELA^ETOI^ thus concludes his report of a case in which he was of counsel witli the defendant : " And therefore the plaintiff, seeing the opinion of the court against him, prayed that he might discontinue the suit. Quod fuit concessum per Fleming Chief Justice, and the other justices would not cross him in it."^ 1 Stratton v. Pettit, 16 C. B. p. 432. 2 Regiua c Scott, 4 Best & Smith, p. 3; 4. 8 Comm. 37. 4 Douglity V. Fawn, Yelv. p. 227. THE LAW REPORTERS. 69 THE learned Lord Chief Justice of the Court of Queen's Bench thus discourses of the subtili- tas legum : " An amusing instance of this subtilitas is given by Gaius,^ in the case of a man who brought an action against another, on a law of the Twelve Tables, for cutting down his vines. The plaintiff proved the fact, but he was defeated, or, as we should say, nonsuited, because the law in giving the action had spoken only of cutting down trees, and it was held that the plaintiff ought to have folloM'ed the words of the law. I take it there is nothing to beat this to be found in Meeson and AVelsby. Xo wonder that Gaius,^ speaking of the old legal actions, is led to say, ' Sed ista3 omnes legis actiones paulatim in odium venerunt. Xamque ex nimia subtilitate ve- terum eo res perducta est, ut qui minimum errassci litem 'pcrclerct.' Of this, indeed, the volumes of ^Meeson and Welsby might furnish us with instances in abundance." IN an old case ^ Hale C. J. said that " if such an action should be allowed," — that is, an action against a custom-house officer for seizing goods, wliieli were afterwards condemned as forfeited l»y judg- ment of tlie proper court, — "the judgment would be blowed off l^y a side wind." ^ 1 Inst. IV. 12. 2 Inst. IV. 30. 8 VuriiliTbcrf? tJ. Bliike, Ilardros, 194. * Quoted by Byles J. in Ilasubc v. Aluttliowa, L:i\v KoiJ. 2 C. 1*. p. C.S7. 70 CURIOSITIES OF LOED BACON relates 1 that in Chancery, one time, when the counsel of the parties set forth the boundaries of the land in question by the plot, and the counsel of one part said, " We lie on this side, my lord," and the counsel of the other part said, "We lie on this side," the Lord Chancellor Hatton stood up and said, " If you lie on both sides, whom will you have me to believe." EOLLE reports a case ^ which contains a discus- sion between the bar and the bench, which deserves a place beside Stradling v. Stiles, reported by Pope. The report cannot with good taste be copied ; but it is worth reading, in the original, by any one fond of that literature elegantly veiled in French catalogues as " curieux." IN the first volume of Cushing's Eeports ^ is this marginal note : " The jurisdiction of State courts being limited by State lines, it is difficult to see how the order of a court, served upon a party out of the State in which it is made, can have any greater effect than knowledge brought home to tlie party in any other way." 1 Apothegms, pi. 74. Works, Vol. VII. p. 136, ed. Spedding. 2 White V. .Brough, 1 Eolle Rep. 286. Wallace The Reporters, 183, 3ded. 8 Ewer V. Coffin, 1 Cusli. 24. THE LAW REPORTERS. 71 SOME very significant remarks of Lord Holt are found in the case of "Wright v. Sharp.^ It was a motion to have exceptions allowed after the trial. Lord Holt said : " You should have insisted on your exception at the trial ; you waive it if you acquiesce, and shall not resort back to your exception after a verdict against you, when perhaps, if you had stood upon your exception, the party had other evidence, and need not have put the cause upon this point." " TTOWSOEATEE the verdict seem to stray," says J — L Lord Hobart, " and conclude not formally or punctually unto the issue, so as you cannot find the words of the issue in the verdict, yet if a verdict may be concluded out of it to the point in issue, the court shall work it into form, and make it serve." ^ IX 1674 Lord Chief Justice North, in his judgment in a celebrated case,^ says : " These instances shew that an action upon tlie case is esteemed a cat] lol icon" that is, according to Johnson's Dictionary, " an univer- sal medicine." 1 1 Salk. 288. Quoted by Sliaw C. J. in Ilolbrook v. Jsicksoii, 7 Cush. p. 154. 2 Foster I'. Jackson, Ilobiirt, 54. (Quoted in Conimonweiiltli v. Stcbbius, 8 Gray, p. 490. 8 iJiirnurdiston v. Soiinie, Ilowcli State Trials, j), 1108. 72 CURIOSITIES OF SIR THOMAS CLARKE, Master of the RoUs, observed : " There are two things against which a judge ought to guard, — precipitancy and procrasti- nation. Sir Nicholas Bacon was made to say, which I hope never again to hear, that a speedy injustice is as good as justice which is slow." ^ ""ATOTHING can call this court into activity," -LM judicially observed Lord Camden, "but con- science, good faith, and reasonable diligence. When these are wanting, the court is passive and does nothinsr." ^ IF one man keeps a school in such a place, another may do so likewise in the same place, though he draw away the scholars from the other school, 't is true, this is damnum, but 't is absque injuria ; but he must not shoot guns at the scholars of the other school, to fright them from coming there any more.^ LORD HALE says a jury should be told " where the main question or knot of the business lies." 4 1 Atherton v. Worth, 1 Dickens, p. 377. 2 Smith V. Chiy, 3 Brown C. C. p. 639 note. 8 Holt Chief Justice, 3 Salk. 10. 4 History of the Common Law, 256. Quoted in the judgment in Black- burn V. Crawfords, 3 Wallace, p. 194. THE LAW REPORTERS. 73 ~V"TT"HILE Chief Justice Eicliardson was attend- V V ing the assizes at Salisbury, a prisoner, whom he had condemned to death for some felony, threw a brickbat at his head ; but, stooping at the time, it only knocked off his hat. "When his friends con- gratulated him on his escape, he said, " You see, now, if I had been an upright judge, I had been slain." The additional punishment upon this offender is thus curiously recorded by Chief Justice Treby in the margin of Dyer's Eeports, p. 188 b. " Eichardson C. J. de C. B. at Assizes at Salisbury in Summer 1631, fuit assault per Prisoner condemne pur Felony; — que puis son condemnation ject un Brickbat a le dit Justice, C[ue narrowly mist. Et pur ceo immediate- ly fuit Indictment drawn pur Noy envers le Prisoner, et son dexter manus ampute et fixe al Gibbet, sur c[ue luy mesme immediatement hange in presence de Court." OXE Bro'\\ni set forth in libel his descent; that another person, in way of defamation, said he was no gentleman, but descended from Brown, the great pudding-eater, in Kent ; but it appearing he was not so descended, but from an ancient family, he that spoke the words underwent the sentence of the court, and decreed to give satisfaction to tlie party com- plaining.^ 1 Rnshworth, Vol. II. pt. 2. p. 1055. 4 74 CURIOSITIES OF IN Baker v. Pierce,^ Holt C. J. Scaid : " I remember a story told by Mr. Justice Twisden, of a man that had brought an action for scandalous words spoken of him, and upon a motion in arrest of judg- ment, the judgment was arrested ; and the plaintiff being in court at that time said, that if he had thought he should not have recovered in his action, he would have cut his throat." IN Massachusetts, in a recent case ^ it was said that " before parties were made competent witnesses, it was the practice to prove their intent ))y a variety of circumstances, because no man can know the se- cret purposes of another's heart except himself." LEVINZ observes " that the judges of late years have had a gTeater consideration for the passing of the estate, which is the substance of the deed, than the manner how, which is the shadow." ^ THE forms of decrees are the best exponents of the law.4 1 2 Lcl. Raym. 960. 2 Fisk y. Chester, 8 Gray, p. 508. 8 3 Levinz, 372. Cited 2 Sauiid. 97 b, 97 c, Gth ed. 4 Per Lord Justice Knight Bruce, in Sherwin v. Shakespeare, 23 L. J. Ch. 901. THE LAW REPORTERS. 75 IX the celebrated case, Stockdale v. Hansard,^ the Sheriffs of London were imprisoned by the House of Commons for a contempt in doing that for the not doing of which the like fate would have awaited them at the bar of the Court of Queen's Bench. MEDLYCOTT v. JOETIXa was a case upon Mr. Serjeant Hill's will, which was so singularly confused, that but for the respect due to the very learned Serjeant, it might, not unreasonably, have been held void for uncertainty. The will of Sir Samuel Romilly was also inartificially penned, and that of Chief Baron Thomson was the subject of Chancery proceedings. So also were the wills of Chief Justice Holt,^ Chief Justice Eyre,* Mr. Serjeant IMaynard,^ Vernon, the eminent chancery counsel,^ Baron Wood,'^ Mr. Justice Vaughan,^ Francis Vesey Junior, the reporter,^ and Richard Preston, the con- veyancer.i" Chief Justice Saunders appears to have made a speculative devise, upon the validity of which 1 9 Ad. & EI. 1. 2 2 Brodorip & Bingham, 632. 8 Viner Ab. Apportionment, p. 18. * G. Cooper, 156. 5 Earl of Stamford v. Sir John Ilobart, 3 Brown V. C. 31. 6 Acherley v. Vernon, 1 P. Wms 783. 7 Baker v. Bayldon, 31 Beavan, 209. " He was one of tlie greatest of pleaders." Per Hayes .J. in The Queen v. Diplock, 10 Best & Smith, p. 175. 8 Knight V. St. .John, coram Wood V. C. (1862). * Vesey v. Vesey, coram Kindersley V. C. (1862). 10 Wiiyte c. I'rcston, coram the Sliustcr of the Rolls (1862). 76 CURIOSITIES OF i his executors, !Maynard, Holt, and PoUexfen, all great lawyers, were divided in opinion.^ The will of Bradley, the celebrated conveyancer, was set aside by Lord Thurlow for uncertainty.^ And a late learned Master in Chancery directed the proceeds of his estate to be invested in Consols in his oimi name^ THE following passage is taken from the preface to Lilly's Reports (A. D. 1719) p. xxix : "I admit that good forms are A^ery necessary, where they relate to the subject-matter, but are ridiculous where they do not; as for instance, the form of a declaration in assault and battery is quare vi et armis (the defendant) in et super (the plaintiff) insultum fecit et baculis gladiis et cultellis verberavit et vulneravit, etc. The very same term was once used by a skilful attorney in an action against the defend- ant for assaulting the plaintiff's wife, who volun- tarily departed from her husband, and lived with the defendant in adultery. I remember great advice was taken about this declaration, and tliat it was resolved by all the counsel for the plaintiff, that the criminal familiarity of the defendant was very prop- erly expressed by those words, in et super (the plain- 1 Reports of Cases in the Law of Real Property and Conveyancing, App. 24. 2 Martin's Conveyancer's Recital Book, 35 note (1834). 8 Hayes & Jarman Forms of Wills, 98 note, 7th ed. See also 7 Notes of Cases, 377; 2 Robertson Eccl. Rep. 140; Bigge v. Bigge, 9 Jurist, 192. THE LAW REPORTERS. 77 tiff's wife) insultum fecit; but it was strenuously objected against the words \i et armis, because there was an apparent proof of the consent and compliance of the woman, and that baculi giadii et cultelli were improper instruments to carry on an amorous corre- spondence. After a long debate, a very grave la^-yer (whose opinion was to conclude the rest) consented to lay down the cudgels, but would not leave out vi et armis ; and his reason was, because they must keep up to the ancient and approved forms." IX a recent text-book is this typographical error : " It is quite true that the opening of a new ividow looking into the grounds of another may not only annoy that neighbor, but may often affect tlie value of his property. But the law of England considers that no injury." ^ ?«\ APEOHIBITION was granted on a libel for say- ing " He has no sense, is a dunce and a block- head ; I wonder the bishop would lay his hands on such a fellow ; he deserves to have his gown pulled over his ears " ; because a parson is not punishable in the Spiritual Court for l)cing a dunce or a blockhead, more than another man.^ 1 Tj'ler, Treatise on the Law of Boundaries, etc., 511), citing Joues t». Ta[.liiif,', 12 C. B. JJ. s. 842, per r.lackburn, J. 2 Coxcter v. Parbous, 11 Model. Ill note. 78 CURIOSITIES OF BY an appeal of death private prosecutors could insist on a second trial for life after an acquit- tal, and could exercise or withliold according to their caprice, or temper, or cupidity, the divine attribute and royal prerogative of mei'cy. But such is the force of judicial habit that we find the very distin- guished Chief Justice Holt, in the reign of Queen Anne, declaring from the bench, " I wonder that any Englishman should brand an appeal with the name of an odious prosecution ; I look at it as a true badge of English liberty." But after the celebrated case of Ashford v. Thornton,^ the legislature looked u})on this method of prosecution in an entirely different light, and it was abolished by 59 Geo. III. ch. 46. SII^ MATTHEW HALE writes: " A great lawyer liath been much blamed for burning a peer on the liand, that confessed an indictment of man- slaughter ; and it was the only error of note that the person erred in to my observation." ^ BEFORE the statute 30 Geo. III. women from the remotest times were sentenced to be burned alive for every species of treason ; this Blackstone at- tributes to the regard of our ancestors for " the decency due to the sex." ^ 1 1 B. & Aid. 405 (1818) 8 4 Bl. Comrn. 93. 2 2 Hale P. C. 377. THE LAW REPORTERS. 79 IT is often said satirically, thougli no satire was originally intended, that corporations have no souls. It would seem that no argument is necessary to prove this legal axiom. Chief Baron Manwood, however, established it by a syllogism, in which it is not easy to detect any fallacy. " The opinion of Man- wood C. B. was this, as touching corporations ; that tliey were invisible, immortal, and that they had no soul, and therefore no subpoena lieth against them, because they have no conscience nor soul ; a corpora- tion is a body aggregate ; none can create souls but God; but the king creates them, and therefore they liave no souls. And this was the opinion of ]\Iau- wood Chief Baron touching corporations."-^ Sir Sampson Darrell's Case.^ SIB SAMPSOX DABBELL was fined £5 for erecting a windmill in his own ground, within the forest, and Mr. Attorney Noy said it ought not to be done, because it frighted the deer, and also drew company to the disquiet of the game. >'< TI I>EL for calling a man a knave : prohibition lies, -^ Ijcfxivse in the time of Henry VI. knave was a good addition.^ 1 2 Rulstrofle, 233. 2 \V. .Jones, 293. Transcribed by Mr. Wallace The Reporters, 187, 3d od. 8 Latch, 1.16. 1 Sidcrfin, U9. 80 CURIOSITIES OF THE prnposition for conducting all law proceed- ings in English was most strenuously opposed. The reporters, who delighted in the Norman French, were particularly obstreperous. " I have made these Eeports speak English," says Style in his preface (A. D. 1G58), "not that I believe they will be thereby more generally useful, for I have been always and yet am of opinion, that that part of the common law which is in English hath only occasioned the making of unquiet spirits contentiously knowing, and more apt to offend others than to defend themselves ; but I have done it in obedience to authority, and to stop the mouths of such of this English age, who, though they be confessedly different in their minds and judg- ments, as the builders of Babel were in their language, yet do think it vain, if not impious, to speak or un- derstand more than their own mother tongue." And Bulstrode, in the preface to the Second Part of his Eeports, says "that he had many years since per- fected the work in French, in which language he had desired it might have seen the light, being most proper for it, and most convenient for the professors of the law." TWISDEN" JUSTICE said he remembered that a shoemaker broutijht an action against a man for saying he was a cobbler ; and though a cobbler be a trade of. itself, yet it was held that the action lay in Chief Justice Glyn's time.^ 1 1 Mod. 19. THE LAW REPORTERS. 81 KEKIFFOED, an attorney, was plaintiff in bat- tery, and the case was thus : He was walking in the market (as attorneys do too much), and the defendant and he Iiad some angry words there, upon which the defendant did press to go by him, aud in going, by reason of the throng of people there, he jostled the plaintiff, and for this he brought this action, in v\-hich if an assault only be proved, it is in- sufiicient, and holden it was no assault, for the touch- ing him or jostle was to another end, namely, to get by him in the throng, and not to beat him, etc.^ "IV /TEMOEAXDUM. — One Mr. Guye Faux of -LVJL the parish of Leathley, a cavilleer, had a cause heard about a plunder, upon Monday this week after dinner, and was well in court, and damage against him a hundred pounds, aud he was found dead next morning upon the conceit of it, as was supposed." ^ THE judge did put back the jury twice, because they offered their verdict contrary to their evi- dence, a,s he held and set a hundred-pound fine upon one of the jury who had departed from his compan- ions ; but after, upon examination, it was taken off again, for that it did appear it was only by reason of the crowd, and some of his fellows were always with liim.''^ 1 Clayton, 22. 2 Ibid. no. 8 l),i,l. 31. 4» F 82 CURIOSITIES OF A CASE was recently determined liy tlio Court of Exchequer Chaniljer wldcli in the opinion of Mr. Justice Blackl jurn involved " a nice and puz- zling question." The question was whether the law as to the liability of gratuitous bailees of personal prop- erty applied to a building. The plaintiff loaned his shed to the defendant to make a signboard, and D., a carpenter employed by the defendant, wliile at work lighted his pipe from a match with a shaving, which he dropped, and thereby set fire to the shav- ings on the ground, by which the shed was liurned. A majority of the Court of Exchequer Chamber, affirming the judgment of the Court of Exchequer, held that the defendant was not liable, on the ground that the loan of the shed was a mere license to use the shed, revocable at any time.^ IN very early times " every one was to have a reme- dial writ from the King's Chancer}^ according to his plaint," of which the following is the most an- cient form : — Eex etc. [to the Judge.] Questus est nobis A. quod B. etc. Et ideo tibi (vices nostras in liac parte committentes) preecipimus quod causam illam audias et legitime fine decidas.*'^ 1 Williams v. Jones, 3 H. & C. 256, 602 (1865). Story on Bailments, § 22.3 a, 8th ed. 2 MiiTour of Justices, 8. THE LAW REPORTERS. 83 IN Manby v. Scott,^ Mr. Justice Wyndham speci- fies the following among the "many inconven- iences which must ensue " if the husband shall be bound by the contract of the wife : — 1. The husband will be accounted the common enemy; and the mercer and the gallant will unite with the wife, and they will combine their strength against the husband. 3. "Wives will be their own carvers, and, like hawks, •will fly abroad and find their own prey. 4 It shall be left to the pleasure of a London jury to dress my wife in such apparel as they think proper. 0. Wives who think that they have insufficient will have it tried by a mercer whether their dress is not too mean, and this will make the mercer judge ■whether he will dispose of his own goods or not. IN the case of Hookes v. Swaine,^ Twisden Justice said he remembered a nice case. Sir William Fish was bound by obligation to pay, on a certain day, in Gray's Inn Hall, £ 50 generally, witliout saying of money ; and therefore upon the day when the gentle- men were at supper, Sir William came in, and ten- dered fifty-pound weight of stone; and adjudged no tender. 1 1 Si.lerfin, 109 (1662, 1663). 2 Smith L. C. 418, 6tli London ed. a 1 Siderfni, 151. 84 CURIOSITIES OF SO completely does a pardon of treason or felony extinguish the crime, that wlien granted to a man, even after conviction or attainder, it Avill enable him to have an action of slander against another for calling him traitor or felon ; " because the pardon makes him as it were a new man, and gives him a new caj^acity and credit." ^ " In the eye of the law the offender is as innocent as if he had never com- mitted the offence." 2 IN the Year-Books, 30 & 31 Edw. I. pp. 503 - 507, is tliis case : A man was arraigned for felony, but on producing a charter of pardon was discharged. Auotlier man was arraigned for liarboring him, and, notwithstanding the acquittal of the principal, he was made to pay a fine. The report concludes thus : " Note, the Justices did this rather for the King's profit than in accordance with law ; for they gave this decision ' in terrorem.' " /)\ A"\VO]\IAN lilielled in the Arches against another for calling of her jade, and a proliibition was prayed and granted, because the words were not defam- atory. And Reeve said that for whore or bawd no prohibition would lie, but they doubted of quean.^ 1 2 Hawkins P. C. CIi. 37, § 48. Vol. II. p. 548, ed. Curwood. 2 i:.x i)arte Giiilaii.l, 4 Wallace, p. 380. United States v. Padelford, 9 Wallace, p. 542. 8 March, pi. 235. THE LAW REPORTERS. 85 AX action of false imprisonment brought against a constable, who pleaded not guilty, the defend- ant did sho\y in evidence, that he came to search in time of the plague for lodgers in the town, and he found a stranger and questioned him which way he 'came into the town; who answered, Over the bridge, and the judge conceived this to be a scornful answer to an officer, and because he had no pass, but trav- elled without one, and gave such an answer, the de- fendant did offer to apprehend him, and the plaintiff thereupon being present said to the defendant, He shall not go to prison, but yet offered to pass his word for his forthcoming, upon which the defendant did commit the plaintiff, and it was ruled upon evidence there was good cause to commit the j)laintiff for oppos- ing the constable, though but verbally, in his office, who is so ancient an officer of the Commonwealth.^ IF B. have a right of entry into his house, lie ought to have a common entrance at the usual door, and sliall not be made to enter at a hole, a back door, or a cliimney ; and if they leave the common door open and make a ditch, so that B. cannot enter vntlioat slcqypin/j, the condition is broken. So if I am obliged to suffer J. S. to liave a way over ray land, and \\ hen I see him coming, I take liim by the sleeve and say to him, "Come not tliere ; for if you do, I will jiuU you by the ears," the conditicjn is bnjken.^ 1 SlicflTcld's Case, Clayton, 10. ^ Lutcli, 17. 86 CURIOSITIES OF THERE are some things personal, and so insepara- bly connected to a man's person, that he cannot do them by another ; as the doing of homage fealty. So it is holden that a lord may beat liis villein, for cause or without cause, and the villein is without remedy ; but if the lord command anotlier to beat him wdthout cause, who does accordingly, the villein shall have an action of Ijattery against him. So if the lord distrain his tenant's cattle, when nothing is behind, yet the tenant, for the reverence and duty that ajjper- tains to the lord, shall not have trespass vi et armis against him; but if the lord command his bailiff or servant to distrain, secus.^ IN" the report of one of the Scotch Appeal Cases in the House of Lords, we find this marginal note : — "Per The Lord Chancellor: Mrs. lleid is to be pitied for the course into which she has been dragged, evidently without any consciousness on her part of the extreme folly of these proceedings."^ And in the very next case in the same volume are these, and only these, marginal notes : — " Per Lord Chelmsford : It is really lamentable to think of the enormous expense incurred in this case." " Per Lord Westbury : Such things occui' in the appeals from Scotland day by day." ^ 1 Comb's Case, 9 Rep. 76 a. 2 Keith V. Reid, Law Rep. 2 H. L. Scotch, 39 (1870). 8 Fruser v. Crawford, Law Rep. 2 H. L. Scotch, 42. THE LA W REPORTERS. 87 "nr)EAYING general relief," said Lord Hardwicke,i JL "is sufficient though the plaintiff should not be more explicit in the [particular] prayer of the bill ; and Mr. Eobins, a very eminent counsel, used to say, ' General relief was the best prayer next to the Lord's Prayer!'" I^nT his Abridgment,^ Rolle says, " Jeo aie oie mon seigneur Coke a citer two verses pur ceo de Sir Thomas Moore : — ' Three things are to be helpt in conscience : i'laud, accident, and tilings of conhdence.' " ONE suggestion by ]\Ir. John Eeeves, the author of the " History of English Law," in his elabo- rate essay on the effect of the Treaty of Peace of 1783, is amusing enough to be quoted : " I have heard it asked, if the king was to send his writ to command the attendance of Mr. Jefferson in this kingdom ? — I agree he would not come ; but that would be no test of the law upon the subject; it is an incDUvenience in point of fact." The case thus j)ut recalls tliat of Glendower and Hotspur : — rHendmvcr. I can call spirits fioni the vasty deep. IfdiHpar. Why, so can I, or so can any man ; liut will they come when you do call for them ?^ 1 Cook r. Martyn, 2 Atkyns, 3. '■i 1 Itcllo Ahr. 374. * First I'iirt of Kinj; Henry IV. Act IFF. Sfeno 1. l'"or tliis ]iassa;(e I am indebted to a writer in Tlie American Law Kevicw, Vol. IV. p. 802. 88 CURIOSITIES OF IN The Emperor of Austria v. Day,^ Lord Campbell Lord Chancellor observed : "Notwithstanding my sincere respect for tlie authority of that great Ameri- can jurist. Justice Story, I cannot concur with him in his recommendation of a mysterious oljscurity to be preserved by courts of equity respecting special in- junctions, and the caution which should make them ' decline to lay down any rule which sliall limit their power and discretion as to the particular cases in which such injunctions should be granted or with- held.' ^ The recommendation of mystery and obscu- rity in treating of judicial jurisdiction is only fit for the Star Chamber, which was called 'a Court of Criminal Equity.' " 'TTIHE case seems to fall ver)'- much within the -J- quaint expressions of Lord Hobart in The Earl of Clanrickard's Case,^ where that very learned judge says : ' I do exceedingly commend the judges that are curious and almost subtle, astuti (which is the word used in the Proverbs of Solomon in a good sense when it is to a good end), to invent reasons and means to make acts according to the just intent of the parties, and to avoid wrong and injury wliich by rigid rides might l)c wrought out of the act.' " * 1 3 De Gex. Fisher & Jones, 211, 238. 2 Story Kqnity .Turisprudence, Vol. II. § 959 b. 8 Hobart, 277. 4 Judgment of Byles J. in Hayue v. Cummings, 16 C. B. N. S. p. 428. THE LAW REPORTERS. 89 THE manner in which Sir John Strange occasion- ally comments on the opinion of the court, in his Eeports, is quite amusing. To a remark of the Court he appends the following note : " It was only ;Mr. J. Wright who said this ; and see The King v. The Inhabitants etc. of Bishopside, Trin. T. 1755. B. E. adjudged, ' contra ' : and in reference to another part of the same opinion, he says : ' It was only Mr. J. Chappie, who said this : and he was WTong ; for the Act expressly requires ' etc." IX ]\Ianhy v. Scott,^ among the reasons for the second " point there established," it is said : " In the Spiritual Court, such bad women as have violated their vows shall have such provision as clerks con- vict,2 and shall be fed with the bread of affliction and the water of adversity." " rrillE law did not condescend to take notice of -L base animals. A dog was not the subject cf larceny at common law, because, as it was said, a man shall not hang for a dog. 7 liep. 18 a." ^ 1 1 Sidcrfin, 109. 2 Smith L. C. 422, 6th London ed. 2 Staunforde, 140. 8 Willcs J. in Kegina r. Martin, Law Hop. 1 C. C. p. 50. See Regina •. Robinson, Bell C. C. 34. 90 CURIOSITIES OF IN the reign of Henry VIII. a statute was jDassed, A\-lierel)y it was enacted that every woman about to be married to the King, or any of his successors, not being a true maid, sliould disclose licr disgrace to him under the penalty of treason ; and that all other persons knowing tlie fact, and not disclosing it, should be subject to the lesser penalty of misprision of treason.^ This law, which was afterwards repealed, as "trespassing too strongly as well on natural justice as female modesty," ^ continued in force during the remainder of this reign, and, according to Lord Campbell,^ " so much frightened all the spinsters at Henry's court, that, instead of trying to attract his notice, like Anne Boleyn, Jane Seymour, and Cath- erine Howard, in the hope of wearing a crown, they shunned his approach as if he had been himself the executioner, and they left the field open for widows, who could not by any subtlety of Crown la\^yers be brought witliin its operation." THEEE is a curious case in Coke's " Second Institute," p. 562, ed. 1797. Indictment against a parson for conspiracy, who pleads that he was "communis advocatus," and so justified as attorney to tlie other. It was found that he was " communis advocatus," and not guilty 1 Statutes of tlie Realm, Vol. IV. p. 859. 2 1 Bl. Coniin 222. 8 Lives of the Lord Chancellors, Vol. IL p. 108, 5th ed. THE LAW REPORTERS. 91 IN the qiiaiiit language of Hide J. in Manby v. Scott, in the Exchequer Chaniber,^ if " the wife will have a velvet gown and a satin petticoat, and the husband thinks mohair or farendon for a gown, and watered tabby for a petticoat, is as fashionable, and fitter for his quality, who is to decide the con- troversy ? Xot the wife, nor a jury it may be con- sisting of drapers and milliners, but the husband." ^ IX the trial of Algernon Sidney, in one respect counsel deserved rebuke, and even Jeffries was not unjust in administering it. Lord Cliief Justice : " Look you, gentlemen of the jury. There are some gentlemen at tlie bar, as we are informed, are apt to whisper to the jury. It is no part of their duty ; nay, it is against their duty." ^ NOY reports a case in the Star Chamber as follows : " The defendants upon a riot, in de- stroying sixteen foot of a hedge for a commoner. There they were fined every one 40 s. And the plain- tiff for suing in that court for tliat riot was fined £ 20. And so both parties were fined, which was seldom seen before."^ 1 1 Mo.l. 124, 138. 2 Quoted in the Judpnent of Blackburn .1. in IJazcley c. Forder, 9 Be»t& Smitli, p. C04; Law Hep. 3 (I. 15. p. 0G4. 8 9 Ilowell State Trials, 837. * Bellcw r. IJullocke, Noy, 101. 92 CURIOSITIES OF IN" Tremaine's " Placitae Corona^," pp. 34, 35, is a precedent of an indictment auainst Sir John Johnston, a Scotch knight, for stealing and marrying one Mary AVharton, an lieiress, "to the great dis- pleasure of Almighty God, to the great disparagement of the said ]\Iary, and to the utter sorrow and afflic- tion of her friends." Treniaine writes in a note : " Sir John Johnston was a stranger to the English laws, and when he was called to judgment Avas much surprised, and asked if it was a hanging matter; hut nevertheless sentence was given against liini, and lie was executed on a gibbet before the lady's door in Great Queen Street." ^\ IN" an appeal of death, the defendant waged battel, and was slain in the field ; yet judgment was given that he should be hanged, which the judges said was altogether necessary, for otherwise the lord could not have a writ of escheat.^ IX the Year-Book, 22 Henry YI., we find counsel responding to one of the judges, who was putting a case to him from the bench about making a view in assize : " En le nom de Dieu, Sir, comment poit le vieu estre fait en ce cas ? " ^ 1 Co. Litt. 390 note. 2 22 IIcu. Vr. p 11, .ibout the middle of the page, quoted in The Reporters, 73, 3(1 ed. THE LAW REPORTERS. 93 COOPEE brought an action upon the case against Witham and his wife, for that the wife, mali- ciously intending to marry him, did often affirm that she was sole and unmarried, and importuned et stre- nue requisivit the plaintiff to marry her; to wliich affirmation he gave credit, and married her, when in facto she was wife to the defendant; so that the plaintiff was much troubled in mind, and put to great charges, and much damnified in his reputation. He had a verdict, but no judgment; for by Twisden Justice the action lies not, because the thing liere done is felony : no more than if a servant be killed, the master cannot have an action per quod servitium amisit, quod curia concessit.^ IX an early case in Massachusetts,^ Mr. Justice Parker expressed his opinion in the following forcible language : " It would seem a disgraceful occu- pation of the courts of any country to sit in judg- ment between two gamblers, in order to decide which was the best calculator of chances, or which had the most cunning of the two. There cOuld be but one step of degradation below thisj which is, that the judges should be the stakeholders of the par- ties." 1 1 Sidcrfin, 375. ' Amory v. Oilman, 2 Mass. p. 6. 94 CURIOSITIES OF IN a case in Goulclsborough, p. 96, one of tlie coun- sel said that he had searched all tlie hooks, and " there is not one case " etc. ; to which Chief Justice Anderson responded : " AMiat of that ? Shall not we give judgment because it is not adjudged in the hooks before ? We will give judgment according to reason ; and if there be no reason in tlie books I will not regard them." ^ " /~\N'E of the cases in Littleton," says Mr. Wal- Vy lace,^ " would present but a bad idea of the manners at Oxford in 1625. AVe find at least the Principal of St. Mary's Hall libelling one of the Masters of Art, and a Commoner of the same Hall, ' pur ceo que il appel luy Red Nose, Mamsey Nose, Copper-nose Knave, Rascal, and Base Fellow et autres words non dissonant.' ^ " Another case ^ si)eaks as ill of the behavior of communicants in those days of Archbishop Laud. Tlie Reverend Mr. Burnet sues one Symons in the High Commission Court, ' pur ces que appel luy fool en leglise et dit a lui Sin-ah ! Sirrah ! ' and because, moreover, he, Burnet, being vicar there, Symons, at 1 " Though a case is of first impression, if it shows a conciiiTence of loss and dainage arising from the act complained of, the action will be maintainable." Lord Campbell Lord Chancellor in Lynch v. Knight, 9 House of Lords Cases, 577. 2 The Reporters, 19.3, 3d ed. 8 Ralph Bradwell's Case, Littleton, 9. * Burnet v. SjTDons, Littleton, 154. THE LAW REPORTERS. 95 AYhitsuntide, after the Communion was ended, took the cup and drank all the wine that was left ; and that, when Mr. Burnet took the cup from him, ' Symons \dolently reprise ces hors de ses mains arriere in facie Ecclesise devant que les parishioners fueront tons dehors leglise.' It is curious, and per- haps worth noting," continues Mr. Wallace, " that the court decided that all the wine that was left after the Communion belonged to the parson. The same dec- laration will be found, I believe, in the rubric to the Book of Common Prayer, printed in the time of Charles II. It shows the doctrine of that day, though at present a special and more reverent provision is made for the case." IX Ptolle's Reports, Vol. I. p. 286, in an action for words, the case is, " Home dit. Sir Th. Holt hath taken a cleaver and stricken his cook upon the liead, so that one side of the head fell upon one shoulder, and tlie other u])()n the otliur shoulder, et ne averr que le cook fuit mort; et pur ceo fuit adjudge nemy })on " ; the cook's death, after the splitting of liis liead, being matter of inference only. Mr. "Wallace says this case may be commended to Mr. Cbitty, wlio may, perhaps, reconcile tlie matter of ])lea(biig in- volved in it with the doctrines of Medical Jurispru- dence. 96 CURIOSITIES OF THE gravity of the poor laws was enlivened, and the sterility of settlement cases agreeahly re- freshed, liy a catch introduced hy Sir James Burrow into tlie report of The King v. Norton.^ The reporter says : " I do not find the case of Shad well and St. John's Wapping [which had been cited in the argu- ment] in any printed book or manuscript. But I guess it to be the same case which I have heard re- ported in the form of a catch, to the following effect (if my memory serves me right) : — " A "Woman having a Settlement, Married a Man with none : The Question was, he being dead, ' If that she had, was gone.' Quotli Sir John Pratt- — ' lier Settlement SusrENDED did remain Living the husband : But, him dead, It doth revive again.' " Chorus of Puisne Judges. Living the Husband : But, him dead. It doth revive again. IT is a rule of law, that Idem non potest esse agens et patiens ; and therefore a man cannot present himself to a benefice, nor sue' himself.^ No man can summon himself; and therefore if a sheriff suffer a common recovery, it is error, because he cannot sum- 1 Burrow R. C. 124. 8 Littleton, 147 b. 2 Then Lord Chief Justice. THE LAW REPORTERS. 97 moil himself.^ A man caunot be both judge and party in a suit ; and tlierefore if a judge of the Com- mon Pleas be made judge of the King's Bench, though it be but hac vice, it determines his patent for the Common Pleas; for if he should be judge of both benches together, he should control his own judgment; for if the Common Pleas err, it shall be reformed in the King's Bench.^ Littleton, Chief Justice of the Common Pleas, was made Lord Keeper, yet continued Chief Justice. And Sir Orlando Bridge- man was both Lord Keeper and Lord Chief Justice of the Common Pleas at tlie same time, for these places are not inconsistent.^ A few years ago, a learned member of Parliament brought in a bill with the double object of providing puljlic prosecutors for England, and making it a statute offence for a servant to steal his master's corn for the puqoose of feeding the master's horse. A guest comes into a common inn, and the host appoints him lii.s chamber, and in tlie night tlie host breaks into his guest's chamber to rob liim : tliis is burglary.^ 1 Dyer. 1H8 a. Owen, 51. 8 i Si.leifin, 338, 366. 2 Cro. Car. 600. ■* Daltoii, cap. 151, in nota. 5 a 98 CURIOSITIES OF THE plaintiff having, as slieriff, attached among other property, two hundred pounds of candy, and five thousand Spanish cigars, entrusted the same to the defendants, taking from them a receipt in which they promised to deliver the same to him on demand. ArPLETOX, J. : The defendants Avere unable at any time after judgment to perform their contract. The five thousand Spanish cigars were sold ; each had ac- complished its destiny, tenuesque recessit Consumpta in ventos. — Aeneid, V. 526. The candy was not forthcoming. Substitution would not answer the contract. Performance of their con- tract by the defendants, by their own acts, was out of their power. Their liability was fixed upon the de- mand made and the neglect to deliver.^ MR JUSTICE EMERY, speaking of the common law of husbantl and wife, says : " Tlie whole theory of the common law is a slavish one, compared even with the civil law. The merging of her name in that of her husband is emblematic of the fate of all her legal rights. The torch of Hymen ser\-es but to light the pile on which those rights are offered up." - 1 Gilmore r. :McXeil, 46 Maine, 532. 2 State r. Burliiighani, 15 Maine, lOG. See Marsliall v. Oakcs, 51 Maine, 310. THE LAW REPORTERS. 99 APPLETON, C. J. " The defendant borrowed of the plaintiff nine dollars on tlie Lord's Day. The moral obligation to repay money loaned is the same, whether the loan be made on one day or on an- other. It is an unfortunate condition of the law when the violator of its commands is rewarded by it for such violation. The defendant and the plaintiff are alike guilty of a violation of law ; the former in soliciting a loan, the latter in yielding to such solici- tation. Both are liable to the penalty provided by the statute. But the defendant, while guilty with the plaijitifl", and equally amenable to the penalties provided by the statute, is rewarded for his wrong- doing by the refusal of the law to aid in the enforce- ment of a debt justly due. He is absolved from an indebtedness created at his own instance ; while his associate in guilt, who yielded to his wishes, is liable to a double penalty, that inflicted by law, and that arising from the non-payment of money loaned, in ad- dition to the sorrows of a regretful conscience. ■' Juvenal indignantly says : multi Coramittunt eadem divcrso crimina fato; Illo cruceni sceleris pretiutn tulit, liic diadema. Sat. XIII. 10;l-105. So, now, of two criminals guilty of the same offence, one is punished and tlie other rewarded by the law which creates the oHence." ' 1 Mtader c. Wliite, CO Maine, 92. 100 CURIOSITIES OF THE judges determined tliat Lord Audley's wife miglit give evidence against liim, for having aided one of liis servants in committing a rape upon herself. They held that where a wife is the party grieved, and on whom the crime is committed, she is to he admitted a witness : and a curious reason assigned is, that in such a case a villain may be a witness against his lord.^ IX a recent case ^ Mr. Justice Byles observed : " I was much struck with the quotation from Web- ster's Dictionary where one of the definitions given of ' tenant ' is, one who has the occupation or tem- porary possession of lands or tenements wliose title is in another." The quotation is from Cowley : — fields, woods, 0, when shall I he made The happy tenant of your shade ? AS a general rule a piece of paper or parchment, whether blank or inscribed with any characters, is the subject of larceny. But there are at common law two exceptions : first, a muniment of title to land, whicli, it is held, savors of the realty ; secondly, a written p)aper, which is mere evidence of a right, 1 3 Howell State Trials, 402,413. Hutton, 115, 116. 2 Birks V. Allison, 9 Jurist N. S. G04, 605. 13 C. B. N. S. 12, 23. THE LAW REPORTERS. 101 resting in contract only, like a bill, note, bond, or executory agreement. A reason given in both these cases is this, that the documents are of no use to any but the owner, and therefore are not in danger of being stolen. On which it has been well remarked, that " if I steal a skin of parchment worth 1 5. it is felony, but when it has £10,000 added to its value by what is MTitten upon it, then it is no offence to take it away." ^ These exceptions are palpably capricious and unreasonable, and are not to be extended. There- fore it has been held that a pawnbroker's ticket may be the subject of larceny.^ M -L wr X Lambard's " Eirenarcha " p. 68, A. d. 1581, it is itteu : " Of this kind of punishment [not capi- tal] our old law, making pretious estimation of the lives of men, had more sortes than we now have, as pulling out the tongue for false rumours, cutting off the nose for adultery, taking away the privy parts for counterfeiting of money, etc." IT was pleaded on belialf of a Hundred charged with a loss incurred by robbery on Gad's Hill, that, time out of mind, it had been customary to rob upon Gad's Hill. 1 Hex I'. WfsllK'or. 2 Strnntjo, ll.i3. 2 lit'gina r. Morrison, Hell C.C. 158. 102 CURIOSITIES OF A the attorney of B. brought an action against C. for saying to B., " Your attorney is a brib- ing knave, and hath taken twenty pounds of you to cozen me." Judge Warlmrton was of opinion that the words were not actional )le, for an attorney cannot take a brilje of his own client ; but Lord Hobart said he might when the reward exceeds measure, and the end of the cause of reward is against justice ; as if he will take a reward to raze a record etc. And Hobart re- ports that after he had spoken. Justice "Warburton said that he began to stagger in his opinion, and the plaintiff had judgment.^ "TTT"OEDS spoken of an attorney, " Thou canst V V not read a declaration," per quod etc. The court : The words are actionable, though there had been no special damage; for they speak him to be ignorant in his profession, and we shall not intend that he had a distemper in his eyes etc. — Judgment was given for the plaintiff"^ LET the following case be a warning to all bad cooks. Trin. 8 Hen. IV. Eot. 47. AVillielmus Milljurn recuperat per juratam per billam suam, in qua queritur versus Johannem Cutting Cook de eo quod ipse Johannes apud Westmonasterium ven- 1 Hobart, 8, 9. 1 RoUe Ab. 53. 2 Jones i?. Powel, 1 Mod. 272. THE LAW REPORTERS. 103 debat dicto "SYillielmo nniim caponem pistum cor- ruptilnlem et recalefactum, qui capo assatiis per qiiatuor dies in Hospicio Domini liegis et iterum calefactus et pistus extitit, de quo postquam edit vomituin horriliilem fecit, ita quod infirmabatur per duas septimauas, recuperat iiiquam viginti solidos per damnis. And Eolle says he was informed that it appears upon the record at large that the justices in- creased the damages.-' A woman shook a sword in a cutler's shop against the plaintiff, being on tlie other side of the street ; and in trespass for assault and battery, there was a verdict of the assault, and not guilty of the battery. It was prayed to give no more costs than damages, and so granted ; which was a noble.^ AX infant brought an action of trespass l)y her guardian ; the defendant pleads that the plain- tiff was above sixteen years old, and agreed for six- pence in hand paid, that the defendant have license to take two ounces of her hair ; to which the plain- tiff demurred, and adjudged for lier, I'or an iidant cannot license, though she may agree with the barber to be trimmed.^ » 1 Rolle Ah. «9. 2 Smith v Nowsam, 3 Keblo, 283. ' Scrr«g'.,':im r. Stewardson, 3 Kchlc, 809. 104 CURIOSITIES OF Avery curious document has Leen issued from the Parliamentary printing-office. It is the bill which has passed the Commons, entitled "An Act to repeal certain statutes, which are sleeping and not in use," and it is made singular by the fact that in it are recapitulated numerous samples of ancestral w'isdom. One of the statutes provides " that no man shall ride in harness within the realm nor with launcegays." Another says, "the rates of lal)orers' wages shall be assessed and proclaimed by the justices of the peace, and they shall assess the gains of victuallers, wdio shall make horse-bread, and the weight and price thereof." A third defines " what sort of Irishmen only may come to dwell in Eng- land " (this has been sleeping a very long time) ; and a fourtli is framed to prevent a butcher from slaying any manner of beasts within the walls of London. IN the Statutes at Large some funny things may be found. There is one which is not to be brought to book, and must be given as a tradition of the time wlien George III. was king. Its tenor is, that a bill which proposed, as a punishment of an offence, to levy a certain pecuniary penalty, one half thereof to go to his ^Majesty and the other half to the informer, was altered in committee, in so far that, when it appeared in the form of an act, ihe punish- ment was changed to whipping and imprisonment, the destination being left unaltered. THE LAW REPORTERS. 105 It is wonderful that sucli mistakes are not of frequent occurrence when one remembers the hot, hasty work often clone by committees, and the com- plete entanglements of sentences on which they have to work. Bentham was at the trouble of counting the words in one sentence of an Act of Parliament, and found that, beginning with " Whereas " and end- ing with the word " repealed," it was precisely the length of an orduiary three-volume novel. SIR ]\IATTIIEW HALE did not extend his supremacy over the entire See of the Criminal Law ; and therefore, when Lord Campbell whites of his History of the Pleas of the Crown, that it is a " complete digest of the Criminal Law as it existed in Sir i\I. Hale's day," he must be understood as express- ing, in an equitable sense, that what was intended to be done was done.^ \:irrister to contract to be paid in the event of success. I't-nrife v. I'nrkcr, Cases Temp. Kincii, 75. 2 Clayton, H9. 6* I 130 CURIOSITIES OF IN actions for slander it has been at all times the custom to preface the legal enunciation of the plaintiff's case with a j^reliminary panegyric upon his character ; this is supcriiuuus, since it does not affect the gist of the action. In one instance, indeed, it appears that in an action for calling the plaintiff a common whore, the announcing herself to he of good fame and honest reputation tempted the defendant to plead that at the time of publishing the words she was not of an honest reputation ; but the plea was held to be bad, since it answered matter of induce- ment which did not require any answer.^ In a modern case, the plaintiff in an action for a libel imputing to him seditious principles prefaced his declaration with a boast of the uniform loyalty of his conduct ; it appeared he had been some time in con- finement under the sentence of the court, for publish- ing a- seditious libel; Lord Ellenborough animad- verted on the impropriety and absurdity of such a preamble.^ MX IT was held to be slanderous to say of a barrister that he could not make a lease ; whereas it was not slanderous to say of an attorney that he made false writings, because it was not his business to make Writim;s.^ 1 Stracliv's Case, Style, 118. 2 1 Starkie on Slander, 357, 2cl ed. 8 1 Rolle Ab. 54. Bac. Ab. Slander, B. 3. THE LAW REPORTERS. 131 CLAYTOX, p. 34, reports tliis case : " The judge would not suffer a grand-juryman to be pro- duced as a witness to swear what was given in evidence to them, because he is sworn not to reveal the secrets of his companions. See, if a witness is questioned for a false oath to the grand jury, how it shall be proved if some of the jury be not sworn in such case;^ and in a case between Hitch and Mallet such a case was about an oath made before a grand jury, cpuere What became of it ? " FOR saying to the plaintiff's wife these words, " You had a bastard in London, and go thither and have another," and the judge held tlie action would not lie : but see because of the Aariance wliich may lie in sucli case between the husband and his wife, which is damage etc.^ AN attorney cannot act on both sides, even with the consent of the parties."^ The court com- mitted an attorney to the Fleet, and struck him off the roll, for accepting a retainer on both sides.* 1 "Some of tlie jury" shall be " sworn in such case." Commou- wcaltli V. M(';i(l, 12 Gray, 167. 2 Clayton, 73. 8 Anon. 7 .Mod. 47. * Simon llasou's Case, Freeman, 74. 132 CURIOSITIES OF IN' Hilton V. Eckersley,^ the sole point was one purely of political economy, arising out of the Combination Laws. Some Lancashire mill-owners entered into a counter-combination against their men (who had combined to force their masters to yield to certain terms) not to open their mills for twelve months except on terms agreed to by the majority of such mill-owners. Whether this agreement of the masters was valid, was the suliject of elaborate dis- cussions in the Court of Queen's Bench, and the Court of Error. " I enter on such considerations," said Lord Campbell in delivering his judgment, "with much reluctance and apprehension, when I think how different generations of judges, and different judges of the same generation, have differed in opinion on questions of political economy, and other topics con- nected with the adjudication of such cases." The court held the agreement void, as contrary to public policy, in restraint of trade, and the free action of individuals ; and the judgment was confirmed unani- mously by a Court of Error. Compare this decision, says a very recent writer, and the enlightened princi- ples on Avhich the discussion was conducted, with the state of things existing formerly in the Legislature and on the Bench, as evidenced by the following passage in Lord Coke's Third Institute. Speaking of such " new manufacture as deserves a privilege," he proceeds : " There was a new invention found out here- 1 6 i:i. & Bl. 47. 24 L. J. N. S. Q. B. 352. 25 L. J. N. S. Q. B. 199. THE LAW REPORTERS. I33 tofore, that bonnets and caps might be thickened in a fulling-mill, by which means more might be thickened and fulled in one day than by the labors of fourscore men, who got their livings by it : It was ordained, that bonnets and caps should he thickened and fulled hy the strength of men, and not in a fidling-mill : for it was holden inconvenient to turn so many laboring men to idleness." LAW CASES. Special and Selected Law Cases, concerning the Persons and Estates of all Men whatsoever ; collected out of the Reports and Year- Books of the Common Law of England. 4to. London : 1641." "The title of this book," writes Mr. Wallace, " certainly operates by way of enlargements THERE is no court equal to the trial of the superior judges of the realm for facts done in judicature.^ If judges in any court, said Lord Eobertson,^ were liable to be called to an account for words spoken in their judicial capacity, it may be said, in tlie words of Lord Stair, " No man but a Ijeggar or a fool would be a judge." 1 Argument for tlic defenflant in error in .Tolnistono v. Sutton, 1 T. R. p 535. See H:inttTt of the goods, it is larceny ; yet it is not larceny if he take away the whole package.^ Chief Justice Kelyng says, "I marvel at the case put 13 Edw. IV. 96, that if a carrier have a tun of wine delivered to him to carry to sucli a place, and lie 1 SIowc V. Wilmott, 2 Siiund. 402. 2 Commonwealth v. Brown, 4 Mass. 580. 208 CURIOSITIES OF never carry it, but sell it all, this is no felony ; but if he draw part of it out, this is felony. I do not see why the disposing of the whole should not be felony also." ^ It has been observed that this construction " savors of contradiction " and " stands more on posi- tive law than sound reasoning]:." Mes. Peele's Case.2 THIS was a suit against a certain Mrs. Peele, a sort of London Madame Le Brun of that day ; the representative, in the English capital, of this lady, whose Parisian name and fame are handed down to legal immortality in one of the great Euglish Peerage Cases, and who has left the bad repute of " la veri- tahle Maison Le Brun," as Police Pieports of 1860 as- sure us, to at least three hundred and twenty-eight houses of a special fame, sometimes called an ill one, in Paris, at this day. The Viscountess Purbecke,^ fa- mous for her beauty, and who so abused the dangerous -gift as to become the scandal of St. James's Court, was at this time the occupant of Somerset House, then as now a princely establishment built originally by the 1 Kelyng, 83. 2 Littleton, 150, 242. 8 Iler name was Frances Coke, and she was a dangliter of Sir Edward of that name. Her mother was Lady Hatton — a Cecil — known in general history as a sister of Sir Thomas Burleifrh, Earl of Essex, but better known to lawyers as the uncomfortable and imperious wife of the great Chief .lustice, whose very name she refused to take, and whose life she tormented by every indignity that it was possible for a woman to offer to a husband. THE LAW REPORTERS. 209 Protector Somerset, long the abode of Queen Elizabeth, and, at the time we speak of, the resort of all that was " emancipated " in the world of courtly fashion. Like most beautiful women, however, while bringing troops of lovers daily to her feet, the Countess was herself the slave of one. This favored person was Sir Ptobert Howard, a younger son of the noble family of Suffolk. And, not too much to shock the hiensecmccs, an arrangement was contrived to give the accepted lover what in France is known as Ics jjctitcs entrees, Avhile the respectable world at large — includ- ing the lady's very virtuous, and, no doubt, very hopeful admirers — should enjoy in greater state and ddgmij Ics grandcs. Tlie virtuous Mrs. Peele was the common friend of Sir Eobert and the lady ; and, rent- ing a handsome mansion next door to Somerset House, " a private passage," the reporter Littleton tells us, had been made between the two; so that, entering ]\Irs. Peele's street door, Sir Eobert could find hhnself, without either scandal or difficulty, in tlie dressing-room of Lady Purbecke — and along with its less innocent attractions disclosing through the open lace-work of its half-drawn curtains and in its southern views the tlien sedgy banks of the Thames, the still lovely lawns of Lambetli, tlie ever-beauteous spires of Westminster, and the .slope — in those days so graceful — of the Surrey Hills ! Quid non vincit amor ? How successfully it was all achieved ! How delightfully they passed their time ! Sui)])iiig and 210 CURIOSITIES OF sinning so decorously, in all tlie charms of "love's beginning." But alas ! the aliquid auiari that springs up even in the fountain of our innocent delights ! These very happy parties Avere not allowed to remain undisturbed ; and notwithstanding the praiseworthy efforts they had made to avoid offending the over- good, ]\Irs. Peele was brought before tlie High Com- missioners upon the discreditable charge of being "guilty of aiding, causing, and procuniuj adultery between the parties " ; and, as it appears, from Little- ton's report, found Guilty, and Imprisoned. THERE is one instance in the reign of Elizabeth of a criminal jurisdiction being directly assumed by the Court of Chancery on a bill filed to punish a party for corrupt perjury, where there v.-as not suffi- cient evidence to convict him at common law. He demurred, but was compelled to answer.^ T REMAIN'S CASE. Being an infant he went to Oxford, contrary to tlie orders of his guardian, who would have him go to Cambridge. And the court sent a messenger to carry him from Oxford to Cambridge. And upon his returning to Oxford there Avent another, tarn to carry him to Cambridge, quam to keep him there.^ 1 Gary, 90. '^ 1 Strange, 167. THE LAW REPORTERS. 211 LORD COKE in the Third Institute relates that many and conimon women had seated them- selves in a lane, next to the house of the friars Car- melites in Fleet Street : this being an open and known wickedness, King Edward III., to the end that these friars might perform their vows, one of which was to live in perpetual chastity, took order for the removing of these womeu.^ THE following is the entire judgment of Mr. Justice Best in an important case : " If we were to grant tliis rule, we should make ourselves auditors to all the trading corporations in England." ^ /^miEF JUSTICE KELYNG was nnspeakably V_y proud of the collar which he wore as Chief Justice, this alone distinguishing him externally from the puisnies, a class on whom he looked very haugh- tily. In his own report of the resolutions of the judges prior to the trial of Lord Morley for murder, before the House of Lords, he considers the followinff as the most important : " We did all, una voce, resolve that we were to attend at the trial in our scarlet robes, and the Chief Judges in tlieir collars of S. S., — 1 3 Inst. 20.5. « Tlin Kint; v. Bank of Kn^land, 2 ]}. & .\M. p. 623. Quoted in American Kuilway Frog Co. v. Ilavcn, 101 Mass. p. 407, 212 CURIOSITIES OF THE LAW REPORTERS. which I did accordingly." ^ His volume of decisions ill criminal cases abounds with silly egotisms. WE will conclude tins volume with a single line from Lord Bacon : — "Eather to excite your judgment briefly than to inform it tediously." ^ 1 Kelyng, 53, 54. 6 Howell State Trial?, 769. 8 Articles of Union between England and Scotland. THE END ODDITIES OF THE LAW BY FRANKLIN FISKE HEARD SAN ?^RANCISCO SIBINER WHITNEY & CO. 1885 Entered according lo the Act of Congress, In the year 1881, By FUANKIJX FISKK IIEAUl), In tlie Oflice of Ibe Libnuhiu of Congress, at ^Vasllington. "Several hints wliicli may be serviceable unto you, and not ungrateful unto others, I present you in this liook: Ih. y are not trite or vulgar. I set them not clown in order, 1 nt as memory, fancy, or occasional observation produced them; whereof you may take the pains to single out such as sliall conduce unto your purpose." Sir Thomas Browne. Sunt bona, sunt qu^dam mediocria, sunt mala plura Quae legis hie: aliter nou fit, Avite, liber. Mabtial. ODDITIES OF THE LAW. N the year 1598 Sir Edward Coke, then Attorney General, married the Lady Hatton, according to the Book of Com- ^t^"^ -^l | mon Prayer, but without banns or li- cense, and in a private house. Several great men Avere there present, as Lord Burleigh, Lord Chancellor Egerton, etc. They all, by their proctor, submitted to the censure of the arch- bishop, wlio granted them an absolution from the excommunication which they had incurred. The act of absolution set forth that it was granted by reason of penitence, and the act seeminj to have been done tlirough ignorance of the latv.^ ACCORDING to Clayton, p. 158, the design of a bill of exceptions "is to prevent the precipitancy of the judge." 1 Middlcton v. Croft, Cuuiiiiigham, 103, 3d ed. 2 ODDITIES OF THE LAW. GODBOLT, p. 34, reports a case in Avliieli Chief Justice Belknap lays down a certain proposition which " he swore to be law."' IN :Mosby V. Leeds, 3 Call, 439, " Leeds filed a bill in chancery, stating that Clark, being* indebted to him, absconded, and the plaintiff took out an attachment against his effects, which was levied by ^Nlosb}', the sergeant of the city of Rich- mond, on a female slave and some other articles ; that jNLarshall or Anderson, having a claim against Clark for house-rent, directed tlie sergeant on the succeeding day to distrain, who nppcars to have levied it on the balance of the negro wliich should remain after satisfying the plaintilf." MR. JUSTICE MAULE once said that nomi- nal damages '' are in effect only a ijeij to hang costs on."' ^ "TN order to obtain an equitable verdict in an -*- action of adultery,"' writes Voltaire, " the jury should be composed of twelve men and twelve women, with an hermaphrodite to give the casting- vote in the event of necessity." i Beaumont v. Greathead, 2 D. & L. 635, 636. ODDITIES OF THE LAW. 3 IN the Third Institute, cap. I., is this maxim, Injuria ilhita judici sen locum tenenti regis videtur ipsi regi iUata, maxmie si fiat, in exercente officium. Shakespeare, in the following passage from the Second Part of Henry IV. refers to this maxim, or to the law which it describes : — Chief Justice. I then did use the person of your father; The image of his power lay then in me • And, in the administration of his law- Whiles I was busy for the commonwealth, Your Highness pleased to forget my place, The majesty and power of law and justice. The image of the king whom I presented, And struck me in my very seat of judgment Whereon, as an offender to your father, I gave bold way to my authority, And did commit you. Act v. sc. 2. In a very recent case in the House of Lords, Lord Selborne, in the course of the argument as to notice, referred to the case of Chief Justice Gascoigne, who without a moment's hesitation, and without any prior notification, sent the Prince of Wales instantly to the Fleet Prison for a con- tempt of court committed in pra3sentia; the heir of the crown submitting patiently to the sentence, and making reparation for his error by acknowl- edging it.^ 1 "Walt V. Ligertwood, L. K. 2 H. L., Scotch Appeals, 3(J7 note, A. D. 1874. 4 ODDITIES OF THE LAW. FOR their private reading our readers are re- ferred to the case of Smith v. Tebbitt, L. R. 1 P. «fe D. at pp. 405, 406. IN Price v. Sears, 2 Lowell, 553, a claim of salvage for a boat on which the plaintiff es- caped from a ship lost in mid-ocean is rather drj'ly disposed of : "As the boat appears to have saved him quite as much as he the boat, that account is in equilibrio." " rr^HE case in Salkeld does not come very -■- strongl}- recommended. For first, it is an anonymous case ; and next, what is relied upon as there said was beside the point in judgment." ^ SIR HARBOTTLE GRLMSTOX wrote in true professional language of his father-in- law, Sir George Croke, that he was continued one of the judges of the King's Bench " till a certiorari came from the great Judge of heaven and earth to remove him from a human bench of law to a heavenly throne of glory." ^ 1 Per Lord Kenyon, C. J., iu Taylor v. Eastwood, 1 East, 216. 3 Cro. Eliz., Epistle Dedicatory. ODDITIES OF THE LAW " "'V/^OU have made a long entry to a little — L house," said Lord Keeper Egerton to Mr. Higgins, who used a long preface to a cause of little worth, and might have been sooner answered.^ IN a recent volume of " Reports of Cases Argued and Determined in the Court of Appeals of the State of New York," is this marginal note, and this only : " Judgment affirmed of course." ^ IN an action for scandalous words spoken of a justice of the peace, the Court observed : " There is not much difficulty in this case ; but there is no end of citing and answering cases. The plaintiff here is said to be a justice, yet no special damage laid in the case : the office of justice of the peace is not so considerable but that many people choose to decline it." ^ IT is said in jNIarch on Arbitraments, 215, that a non-suit " is but like the blowing-out of a candle, wliich a man, at his own pleasure, lights again." * 1 Notes and Queries, 4tli ser. vol. VII. p. 5. 2 Lyman v. Willicr, ." Keyes, 427. 8 Palmer v. Edwards, Cooke, 24'2, .3d ed. * Quoted by Metcalf, J., in Clapp v. Thomas, 5 Allen, 159. 6 ODDITIES OF THE LAW. IN a recent case Chief Justice Chapman ob- served that " Experience is not sufficiently uniform to raise a presumption that one who has the means of paying a debt will actually pay it." 1 MR. JUSTICE WAYNE, having occasion to refer to the second volume of Gray, cited it as follows : " the 2d of Horace Gray's Reports of the Supreme Judicial Federal Court of Massa- chusetts." 2 " rr^IIE parents of trusts were /rrt?/(f and fear, -■- and a court of conscience was tlie nurse."' ^ SAUNDERS thus concludes the report of the case of Windsor v. Gover, 2 Saund. S05 c: "For tliis fault alone judgment was given against the defendant by Twisden, Raynsford, and JNIor- ton, Justices, Kelynge, Chief Justice, being absent, who said that the plea in this point was altogether insensible. But I believe their principal reason was because they u'ould not determine the matter of latv.'^ 1 Atwood V. Scott, 90 Mass. 178. 2 Dynes v. Hoover, 20 How. 81. 8 Attorney General v. Sands, Hard. 491, quoted in 1 Perry on Trusts, § o note. ODDITIES OF TUB LAW. 7 SIR FRANCIS PALGRAVE relates this an- ecdote : Within memory, at the trial of a cause at Merioneth, when the ]nvy were asked to give their verdict, the foreman answered, " My lord, we do not know who is plaintiff, or who is defendant ; but we find for whoever is Mr. C. D.'s man." Mr. C. D. had been the successful candi- date at a recent election, and the jury belonged to his color.i LORD ELDON mentions a remarkable instance as regarded himself, of the uncertainty of evidence as to handwriting. A deed was pro- duced at a trial, on which much doubt was thrown as a discreditable transaction. The solicitor was a very respectable man, and was confident in the character of his attesting witnesses. One of them purported to be by Lord Eldon himself; and the solicitor, who had referred to liis signature to pleadings, had no doubt of its authenticity, yet Lord Eldon had never attested a deed in his life.^ LORD COKE says that Moses was the first reporter of law.^ 1 Aiithority of the King's Counfil, p. 143. 2 Eaglcton v. Kingston, 8 Yes. 473. Quoted liy Mr. Justice Coleridge in liis judgment iu Doc v, Suckermore, 5 A. & E. 71G, and 2 N & P. ^^A. 8 G Hep. Pref. j), xv. 8 ODDITIES OF THE LAW. JUDGMENT was given against the defendant of about forty years of age, upon wljich judgment he brought a writ of error, and assigned infancy, and, appearing by attorney for error, the Court fined tlie attorney.^ IN the Preface to the Eighth Part of his Reports Lord Coke says : " There are certain other cases now published by me, concerning some of the most abstruse, dark, and difficult points in the law, and yet very necessary to be known. And I have of purpose done these as plainly and clearly, and therewith as briefly, as I could. For the laws are not like to those things of nature which shine much brighter througli crystal or amber than if they be beheld naked ; nor like to pictures, that ever delight most when they are garnished and adorned with fresh and lively colors, and are much set out and graced by artificial shadows." THE following is one of the head-notes to the case of Abbe v. Pvood, 6 McLean, 107 : " A witness who swears that a certain thing was said or done is entitled to greater weight than a wit- ness who said that he did not hear the remark, or witness the act." 1 Per Holt, C. J., in Pierce v. Blake, 2 Salk. 515, 516. ODDITIES OF THE LAW. 9 THE Public Local Laws of Maryland, vol. 2, p. 315, contains the Police Act of the City of Baltimore, passed in 1860. This provides tliat " No Black Republican, or indorser or approver of the Helper Book," shall be appointed to any office under the Board of Police. The constitutionality of this act came before the court in Baltimore v. State, 15 Md. 376, 468. The above clause was objected to as unconstitutional ; but the Court held that they could not take judicial cognizance of the meaning of these words. "XT is wonderful how slowly the most obvious -*- truths are perceived and admitted. The plain and simple morality of the gospel required a reve- lation. Even in my da}" at the bar it was the constant practice of the Orphans' Courts to allow a charge, in administration accounts, for the price of strong drink furnished avowedl}' to stimulate the bidders at the sale of the decedent's effects." ^ ON the titlepage of Clayton's Reports is this motto : " Open thy mouth for tlie dumb. . . . Plead the cause of the poor and needy." — Pnov. xxxi. 8, 9. 1 Per Gibson, C. J., iu Peuaock's Appeal, 14 Penu State, 450, A.D. 1850, 10 ODDITIES OF THE LAW. IF the hiisbaiul will not supply liis wife with necessaries, she must make her complaint to the ordinary, and he may supply a remed}- ; and that this is the proper course, and best adai)ted to such a complaint, is manifest. Because the bishop himself ought to examine the matter in private ; and, if he finds all persuasion to a reconciliation useless, he must proceed to sentence, and this will be according to the demerit of the wife, and not according to the estate and degree of her husband, as a jury must proceed, which would be a pernicious precedent, since bad women would have as great provision as good women, when the default is on the part of the husband. But, in the spiritual court, such bad women as have violated their vows shall have such provision as clerks convict (Staraf. 140), and shall he fed ivith the bread of affliction and the water of adversity} "TTTHEN sitting in the Rolls Court, indignant » ' at the conduct of one of the parties, Lord Kenyon astonished his staid and prosaical audience by exclaiming, " This is the last hair in the tail of procrastination I "' Whether he plucked it out or not, observes Mr. Townsend, the reporter has omitted to inform us.^ 1 Manliy v. Scott, 2 Smith L. C. 457, 458, 7th Loudon ed. 2 Lives of Eminent Judges, vol. 1, p. 79. ODDITIES OF TUE LAW. 11 A STATUTE of New York provides, that if an officer in a corporation refused, on request of a stockholder, " to exhibit the books, or to sub- mit them to an examination," he shoukl forfeit a certain sum. The defendant contended that the stockhokler coukl not take off a list of stock- holders. " It was supposed," said the Court, " that the etymological meaning of the words ' exhibit ' and ' examine ' limited their meaning to the con- struction contended for by the defendant. If the derivation be from examen, a swarm of bees, it may be supposed to imply the industry and per- severance of the bee, and would then authorize a search as thorough as the most earnest could desire ; and not only a search, but that the best part of that which is searched should be also carried off to be converted to a good and useful purpose." ^ - » ■ « — IT was argued in a case in the House of Lords, that the word "but" is not necessarily in opposition to what precedes it. It is a conjunction as well as a preposition. In one case it is derived from "be out," and is equivalent to "except," or " without." Per Lord 13rougham : " x\s in the motto of the Macphersons, ' Touch not a cat but [without] a glove.' "^ 1 Biouwer v. Cotlical, 10 Barb. 21G. 2 Abbott V. Middletou, 7 Uouse of Lords Cases, 75, 76. 12 ODDITIES OF THE LAW. LORD CAMPBELL relates, that upon Bun yan's wife seelviiig redress from the Judges of Assize, who Avere the furious Twisden and Hale, the former, according to Bunyan's own account, " snapt her up." But Hale said, " Alas, poor woman ! " and added, " There is no course for you but to apply to the king for a pardon, or to sue out a u'rit of error; and, the indictment or sub- sequent proceedings being shown to be contrary to law, the sentence shall be reversed, and your husband shall be set at liberty," — a piece of in- formation little calculated to have extricated the tinker Bunyan from the "Slough of Despond."-^ THE late Lord Justice James remarked, in a very recent case in the Court of A])peal, that the Court could not be too strict in taking care that the pleadings should not degenerate into the oppressive character of some of the pleadings in the old Court of Chancery. " We must not," added his lordship, " be driven to confess, as Oliver Cromwell did with a sigli, in reference to his ineifectual attempt to reform the law and pro- cedure of this country, that the sons of Zeruiah are too hard for us. For my own part, I do not mean to succumb to their devices." ^ 1 Lives of the Clnef Justices, II. 212 and note, 3d ed. 2 Davy V. Garrett, 38 L. T. N. S. 81, A.D. 1878. ODDITIES OF TUE LAW. 13 IN Brocket v. Ohio Railroad Company, 14 Penn. State, 244, 245, where the question was whether a railroad, under an authority to take land, could move a house, Gibson, C. J., said : " It is indispensable to safety and speed that the route of the railroad be as direct as the surface of the countr}' will permit, but they could not be at- tained in a settled country if every hovel or house w^ere privileged ; and thus a quasi national work intended for posterity might be botched through a respect for the sacredness of temporary erections. The course of a railroad might be insuperably obstructed by the obstinacy of a proprietor in the gorge of a mountain, or the pass be made, at least, difficult and dangerous. A mangled passen- ger inquiring the reason of a deflection, when the cause of it had disappeared, might be told of our infinite respect for property at the expense of safety ; but the information would neither ease his pain, nor set his leg." " nnilE report of the case of Swift v. Stevens, -L 8 Conn. 439, concludes as follows : " Peters, J., having received, during the argument of tliis case, intelligence of the deatli of his son, Hugh Peters,. Esq., of Cincinnati, left the court-house, — multa gemens, casuque aninium concurrus, — and gave no opinion." 14 ODDITIES OF THE LAW. THE folloAving is one of tlie hend-notes to the case of Barrow v. Richard, 8 Paige, 351 : "A very highly colored description of the noxious effects of coal-dust, in a sworn bill in chancery, altliongh somewhat poetical, cannot be treated by the Court as a mere poetic fiction ; but upon de- murrer to the bill, such coal-dust will be consid- ered as a real nuisance."' The Chancellor. "The allegation in the bill on this subject, though it is a little poetical, cannot be considered a mere poetic fiction, as it is sworn to by the complainant, and is admitted by the demurrer. lie there states that large quantities of volatile and offensive dust and smut from the coal rise in the air, and are diffused by the wind into the premises of the neighboring inliabitants. And in spite of all their care, such coal dust and smut not only settles upon their walks and their grass plats, but also on their fragrant plants and flowers, 'beclouding the brightness and beauty which a beneficent Creator has given to make them pleasant to the e3'e, and cheering to the heart of man.' But what must be still more offen- sive to the ladies of the neighborhood, ' this filthy coal-dust settles upon their doorsteps, thresholds, and windows, and enters into their dwellings, and into their carpets, their cups, their kneading- troughs, their beds, their bosoms, and their lungs ; discoloring their linen and their otherwise stain- ODDITIES OF THE LAW. 15 less raiment and robes of beauty and comfort, defacing their furniture, and blackening, besmear- ing, and injuring every object of utility, of beauty, and of taste.' Making all due allowance for the coloring "vvhich the pleader has given to this nat- urally dark picture, it is perfectly certain that this keeping of a coal-yard upon any of these lots is a business offensive to the neighboring inhabitants, according to the spirit and intent of these restric- tive covenants." IN the course of the argument in the case of The Betsey,^ Marshall, C. J., observed, " No attempt has been made to distinguish this case from those of The Vengeance ^ and The Sally .-^ Those cases have settled the law ; and, unless this case can be distinguished from those, the Court does not think an argument necessary." C. Lee for the claimant: " I hope to show that this case is distinguishable from those, and to be permitted to argue at large the point of law, that this is not a case of admi- ralty jurisdiction. I argued the case of The Ven- geance, and 1 know it was not so fully argued as it might have been ; and some of the judges may recollect that it was a rather sudden decision." Mr. Justice Chase answered, " I recollect that the argument was no great thing ; but the Court took time, and considered the case well.^^ 1 4 Cranch, 44G. 2 3 Dallas, 297. » 2 Crancli, 406. 16 ODDITIES OF THE LAW. , "T^TPON the question of cruel treatment," said ^^ the Court in a case in Indiana, which was a i:)etition for a divorce, "we tliink the evidence was sufficient to justify the finding. Among other facts one Avitness sAvore that he ' saw the wife come out of the back door of tlie husband's house, and his foot was after her.' The Court may have inferred from this tliat slie was forcibly expelled from the house." ^ A NEGOTIABLE note given for a gaming consideration is void in the hands of even an innocent holder for value. Unger v. Boas, 13 Penn. State, 601. " The argument here is," said the Court, by Mr. Justice Burnside, " that com- merce is to be encouraged, and therefore we ought to decide in favor of an innocent indorsee. I am Avell satisfied that we shall not send a vessel less to sea by taking from commerce the uncertain aid of faro-banks and other a:amin<]r-tables." IN New York it has been determined that the fact that inspectors of elections, and the clerks, are sworn upon Watts's Psalms and Hymns, and not upon the Gosj^els, will not invalidate the election.! 1 Sullivan v. Sullivan, 34 Indiana, 371. 1 People V. Cook, 14 Barb. 25'J, 299. ODDITIES OF TUB LAW. 17 TN Touchard v. Crow, 20 Cal. 150, 163, which -L was a jury-waived case, the Court charged itself as a jury on questions of fact. On appeal, Field, C. J., thus disposes of this part of the case : " This action was tried by the Court without the intervention of a jury. Of course, in such cases, the Court not only performs its peculiar and ap- propriate duty of deciding the law, but also dis- charges the functions of a jur}-, and passes upon the facts. The counsel of the appellants im- j)ressed, as it would seem, with this dual character, requested the Court to charge itself as a jury, and handed in certain instructions for that purpose. The Court, thereupon, formally charged that part of itself which was thus supposed to be separated, and converted into a jur}', commencing the charge with the usual address, ' Gentlemen of the jury,' and instructing that imaginary body, that, if they found certain facts, they should find for the plain- tiff, and otherwise for the defendants, and that they Avere not concluded by the statements of the Court, but were at liberty to judge of the facts for themselves. The record does not inform us whether the jury thus addressed differed in their conclusions from those of the Court. These pro- ceedings have about them so ludicrous an air, that we could not believe they were seriously taken, but for the gravity with which counsel ou the argument referred to them." 18 ODDITIES OF THE LA]]-. MR. COMMISSIONER FANP:, in liis exami- nation before a committee of the House of Lords, calls the citing of an unreported case pocket pistol law.^ " rinilE next cast of a fisherman's net " has long -L been used as an illustration of a mere ex- pectancy, not the subject of grant. In a late case in Massachusetts it was sought to substantiate such a sale, and the Court were obliged to adjudge that a man has no salable interest in halibut in the sea. There is a possibility, they say, the man may catch halibut ; but he has no actual or poten- tial interest in the fish until he has caught them.^ MR. JUSTICE VENTRIS states that a man " cannot have an estate j^ut into him in spite of his teeth." 3 "/"XFTEX an entire failure of consideration in ^y the receipt of what is mere moonshine is sufficient to rescind a contract." ^ 1 1 Lindley on Partnership, 42. 2 Low V. Pew, 108 Mass. .347. Tlie other ma.xini (not of the law) is a]>pli(.-able: " First catch your fish," etc. Cited in 1 Jones on Mortc;a<:^PS, § 13G. 8 Thomson v. Leach, 2 Vent. 20G, quoted by Abbott, C. J., in Townson v. Tickell, 3 B. & A. .35. * Per "Woodbury, J., iu Waruer v. Daniels, 1 W. Sc M. 110. onniriES of the law. 19 LORD ELDON once observed, "It is with great regret, if that expression may properly come from a judicial mouth, tliat I am compelled to say that this action cannot be maintained." ^ THE law, it is true, aids the vigilant, and not the slothful. It is possible, nevertheless, even in such a case, to rise too early .^ IN Perkins on Conveyancing, § 300, is this pas- sage : " Now are we to speak of dower. And as unto that know, that, as i\Ir. Littleton hath well showed and set forth in his first book, there are five manner of doAvers, which appear in this chapter of Dowers ; and many and diverse good cases concerning dower are there put by my Lord Littleton. And also there are so many good and necessary cases concerning dower put upon the writs of dower, in 'Natura Brevium,' with the additions, that a man can hardly speak any thing more concerning dower bej'ond wliat is sliowed and said in the same l)ook. And yet^ notiolihxiand- infj that, Homething shall, hy the yrace of Qod, he said here concerning dower.'''' 1 Campbell v. Stein, 6 Dow, 135, 136. 2 Per Rooacvelt, J., in Livingston v. Bank of New York, 2G Barb. 309. 20 ODDITIES OF THE LAW. IN a very recent case in Tennessee it was decided that a liusband and father who luis a policy of insurance on his life, payable to liini, his executors, administrators, and assigns, may dispose of it by will.^ In the judgment. Chancellor Cooper gives a liumorous version of the case of Hales v. Petit, 1 Plowd. 253 : — " The very point made Ijy the learned coun- sel was elaborately argued and considered three centuries ago in one of the celebrated causes of that da}^, — a cause rendered still more memo- rable b}' the fact that it is supposed to have been the occasion of one of the colloquies of the Sliak- sperian drama. Plowden's Reports were popular when first published, having been four times re- printed during the last quarter of the sixteenth century. They have been commended by our ablest American commentator for their authen- ticity and accuracy, and as ' exceedingly interest- ing and instructive by the evidence they afford of the extensive learning, sound doctrine, and logical skill of the ancient English bar.'^ Better author- ity, therefore, we could not find. "In Hales v. Petit, 1 Plowd. 253, Sir James Hales, one of the Justices of the Common Pleas, a son of an eminent Baron of the Exchequer, was 1 TVilliams v. Corson, 2 Tcnn. Clianc. 2fi0, A.D. 1875. 2 " Exquisite and elaborate Commentaries," says Lord Coke. Pref. to 3 Kep. viii. ODDITIES OF TUE LAW. 21 found by a coroner's jury to have wilfully gone into a river, ' and liiniself therein feloniously and voluntarily drowned.' Such an act was, in those days, if not 'rank burglary,' at least felony with- out benefit of clerg}', and not only deprived the guilty party of Christian burial, but occasioned a forfeiture of his goods and chattels to the Crown. The suit was between an assignee claimino- under the Crown, and the widow of the deceased, and raised the question whether a joint lease to Justice Hales and wife was forfeited to the Crown, or sur- vived to the widow. The argument turned upon the nice point whether the felony of the husband was consummate in his lifetime, or only after his death. " Two able sergeants sought, on behalf of the widow, to satisfy the Court that the felony was consummated after the death of the distinguished judge. The following is a specimen of the 'sound doctrine and logical skill ' of these members of ilie ancient English bar. Tliey insisted that the ' for- feiture shall onl}'- have relation to the time of the death, and the death precedes the forfeiture, for until the death is fully consummate he is not a felo de se ; for if he had killed another, he should not have been a felon iinli] the other had been dead. And for the same reason he cainiot be a felo de se until tlie death of himself be fully had and con- summate. For the death precedes the felony both 22 ODDITIES OF THE LAW. in the one case and in the other, and the death precedes the forfeiture. But, nevertheless, the forfeiture comes at the same instant that lie dies. Yet in things of an instant there is priority of time in consideration of hiw, and the one shall be said to precede the other, although both shall be said to happen at one instant ; for every instant con- tains the end of one time and the commencement of the other. And, accordingly, here the death and the forfeiture shall come together and at one same time, yet there is a priority ; that is, the end of the life makes the commencement of the forfeiture, thongh, at the same time, the forfeiture is so near to the death, that there is no meantime between them, }ct, notwithstanding that, in consideration of law, the one precedes the other, but by no means has the forfeiture relation to any time in his life.' " It required four learned sergeants, on behalf of the assignee of the Crown, to meet this lucid argu- ment. They insisted that the forfeiture should have relation to the act done in the lifetime which was the cause of the death. And one of them said, ' The act consists of three parts. The first is the imagination, which is a reflection or meditation of the mind, whether or no it is convenient for him to destro}' himself, and what waj^ it can be done. The second is the resolution, which is a determination of the mind to destroy himself, and to do it in this ODDITIES OF THE LAW. 23 or that particular wa}'. The third is the perfection, which is the execution of what the mind has re- solved to do. And this perfection consists of tAvo parts, viz., the beginning and the end. The begin- ning is the doing of the act which causes the death, and the end is tlie death, which is only a sequel to the act.' And much more to the same purport. " The reasoning of the Court is in the same learned and discriminating vein. For the Lord Dj-er said : ' That five things are to be considered in this case. First, the quality of the offence ; secondly, to whom the offence is committed ; thirdl}-, what shall be forfeit ; fourthly, from what time the forfeiture shall commence ; and fifthly, if the term here shall be taken from the wife.' And Sir Anthony Brown, J., said : ' Sir James Hales was dead ; and how came he to his death ? It may be answered. By drowning. And who drowned him ? Sir James Hales. And when did he drown him ? In his lifetime. So that Sir James Hales, being alive, caused Sir James Hales to die, and the act of the living man was the death of the dead man.' " The decision was in favor of the assignee of the Crown, and upon tlie ground that the act of the living man was the effective cause of the felony, althougli the latter was only consummate upon the death. It is an authority directly in point on the question before us, and binding as a precedent, 24 ODDITIES OF THE LAW. whatever may be said of the peculiar form in which its logic is presented. " The Elizabethan drama is full of legal allu- sions, showing that the business of the courts was brought home to the people in those days, even more than in our era. What wonder, then, that the great dramatist, in Ins marvellous range of vision, should see this specimen of legal acumen, and serve it up for the amusement of the ground- lings, and as a foil to the tragic end of the gentle Ophelia ! " In Sir James Hales's case the coroner sat on him, and found it felony. In Ophelia's case the ' crowncr ' sat on her, and found it Christian burial. In the first case the learned counsel says that the act consists of three parts, — the imagina- tion, the resolution, and the perfection. ' If I drown myself Avittingly,' says the clown, 'it arsfues an act ; and an act hath three branches : it is to act, to do, and to perform.' The learned Court discusses its case upon the supposition that the man went to the water. The clown concedes that, ' if the man go to the water, and drown him- self, it is, Avill he, nill he, he goes. But,' he adds, ' if the water come to him, he droAvns not himself: argal, he that is not guilty of his own death shortens not his own life.' 'Biit is this law?' queries his fellow clown. ' Ay, marry is't ; Crowner's Quest Law." ODDITIES OF THE LAW. 25 IN a case ^ where the decree was made thirty- eight years after the commission of the waste, Shadwell, Vice Chancellor of England, thus de- scribes the principle upon which a wrongdoer is not protected by time : " That the author of a mischief is not to complain of the result of it . . . is a proposition supported by the Holy Scriptures and by the decisions of our own courts of equity ; " and he further quotes St. Matthew's Gospel, xxvi. 52, and Ovid.2 rr^H ROUGH OUT the report of the case of -L Conustable v. Clowbury, Noy, 75, the word "ship " should be substituted for "-wife." In the notes originally taken by Noy, the word would probably be "nief," which might be rendered either ''ship,'' or the ^^ wife of a villein."^ THE reader is referred to the charge to the jury in the case of State v. Brown, G7 N. C. 442, iji which a negro was charged with liaving committed rape on the body of a white AVDman. It is loo h)iig for quotation. 1 Leeds V. Amherst, 2 Phillips, 117; 20 Beav. 239; 11 Sim. 337, f.'ited in Banniiic; on Limitations, 99. 2 Ncque eni.n lex a'quior iilla est, Quam nc'cis artifices arte perire suu. — Ars Amai. I. v. G55. 3 2M. & G. 18 note. 26 ODDITIES OF THE LAW. THE following eulogy on the common law is taken from tlie opinion in the case of Snow- den V. Warder, 3 Kawle, 103, 104: — " The common law is truly entitled to our high- est veneration ; and altliough it has been said by some to have been instituted by Brutus, the grandson of iEneas, and the first King of Eng- land, who died when Samuel was judge of Israel, and who wrote a book in the Greek tongue, Avhich he called ' The Laws of the Britons,' and which he had collected from the laws of the Trojans, it is nevertheless not entitled to our veneration on ac- count of its antiquity ; for nearly all that is valuable in it is com2~)aratively of modern date.^ Neither is it entitled to our respect on account of the ancient, absurd, and superstitious modes of trial, none of which have the slightest resemblance to our present trial by jury. Still less does it deserve our admiration on account of the feudal system, which imposed a restraint upon every effort to improve the jurisprudence of the country, and .which prevented the adoption of those maxims of justice and equity which now ren ^er it the admiration f the enlightened jurist, and the favor- ite of the people. It is, however, entitled to cur veneration, because it has, within the last two centuries, been moulded by the Avisdom of the ablest statesmen, and a succession of learned and 1 See Preface to 3d Kep. ODDITIES OF THE LAW. 27 liberal^ninded judges, into a flexible system, ex- panding and contracting its provisions, so as to correspond to the changes that are continually taking place in society by the progress of luxury and refinement. As the youthful skin of a vigor- ous child expands with its growth, and accommo- dates itself to every development which the body, in its progress to maturity, makes of its powers, capacities, and energies, so does the common law, in order to suit the exigencies of society, possess the power of altering, amending, and regenerating itself. It lias been truly and eloquently said, that ' it is the law of a free people, and has freedom for its end ; and under it we live both free and happy. When we go forth, it walks silently and unobtru- iselvy by our side, covering us with its invisible shield from violence and wrong. Beneath our own roof, or by our own fireside, it makes our home our castle. All ages, sexes, and conditions share in its protecting influence. It shadows with its wings the infant's cradle, and with its arm upholds the tottering steps of age.' It is the duty of the judiciary not only to guard it with vigilance against incongruous innovations, but also to ex- tend the operation of its principles, so as to emljrace all the new and various interests which arise among an active and enterprising people. Thus much for the common law." 28 ODDITIES OF THE LAW. THE language of the Court on the tj-ial of questions of . legitimacy, as reported in the Year Books, was sometimes more emphatic than decorous. Judge Kichell improved upon the maxim of civil law in favor of legitimacy by making it of still more general application. lie says, ^' For who that bulleth my cow, the calf is mine." ^ Perhaps Shakespeare intended to immor- talize Judge Richell and his learned brethren, by making them the prompters of King John, in the following address to Robert Falconbridge : — King Joiix. Sirrah, your brother is legitimate; Your father's wife did after wedlock bear him : And, if she did play false, the fault was hers; "Which fault lies on the hazards of all husbands That marry wives. Tell me, how if my brother, AVho, as you say, took pains to get this son. Had of your father claim'd this son for his? In sooth, (jood friend, your father wight have kept Thi.^ calf, bred from his cow, from all the world ; In sooth, he midit: then, if he were my brother's, My brother might not claim him; nor your father, Being none of his, refuse hira. This concludes, — My mother's son did get your father's heir; Your father's heir must have your father's land. Act i. sc. 1. " ry^HAT excellent code which has grown gray -L by the awfid lioar of innumerahle agesy ^ 1 Year Book, 7 Hen. IV. 9, 13. Barony of Gardner, Iv. note. 2 Hall Admiralty, 91. ODDITIES OF THE LAW. 29 TO the case of iNIoore v. Moore, 2 Atk. 2T3, wliich arose upon some differences and disputes between husband and ^yife, the reporter appended the famous " Nota Bene : ' Mr. Attorney General,^ after the decree was pronounced, said, this was so uncommon a case that probably it would never happen again. The Lord Chancellor ^ replied. If you think so, you must have a very good opinion of tlie ladies ;, for In amore haec omnia insunt vitia: injuriae, Suspiciones, ininiicitife, induciae, Bellum, pax rursura.' " ^ " "TTT^E do not impeach the omnipotence of the » ▼ Legislature for creating attorneys, as the world was created, out of nothing ; or the power to control such eccentric orbs within their appro- priate spheres. Our province is rather to ascer- tain their orbits', and to harmonize their motions, if possible, with the movements of other bodies." * D ECLARATION in Murphy v. Staton, 3 Munf. 239, "for negligently ducking" certain goods. 1 Sir Diulley Ryder. 2 Lord Hardwickc. 8 Terence, Eunnchns, Act i. sc. 1, near the oomraencement. * Per Cutting, J., in Simmons v. Jacobs, 52 Maine, 150. 30 ODDITIES OF THE LAW. IN a recent case in Indiana, the Chief Justice tlms discourses : ^ '' Immediately after the fall of Adam there seems to have sprung up in his mind an idea that there was such a thing as de- cency and such a thing as indecency ; that there was a distinction between them ; and since that time the ideas of decency and indecency have been instinctive in, and indeed parts of, humanity. And it historically appears that the first most palpable piece of indecency in a human Ijeing was the public exposure of his or her, as now commonly called, privates ; and the first exercise of mechani- cal ingenuity was in the manufacture of fig-leaf aprt)ns by Adam and Eve, by which to conceal from the public gaze of each other their now, but not then, called privates. This example of cover- ing their privates has been imitated by all man- kind since that time, except, perhaps, b}* some of the lowest grades of savages. jNIodesty has ever existed as one of the most estimable and admirable of human virtues." HASTELOW V. Jacksox, 8 B. & C. 221. " I accede to the authority of that case, al- though I think it a very strong decision. It does not convince me : it overcomes may Per Alderson, B. in Mearing v. Hellings, 14 M. & W. 711, 712. 1 Ardery v. State, 5G Ind. 328, 329, A.D. 1877. ODDITIES OF THE LAW, 31 THE late Lord Justice James observed in a re- cent case, "It appears to me that the proper place for such an argument as this would be in some satirical work ridiculing, by clever exaggera- tion the doctrines of the Court of Equity with respect to constructive notice. It is not, to my mind, a substantial argument, capable of being addressed with any effect to any court what- ever." 1 SIR James Stephen says, "The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." ^ EICH V. Basterfield, 4 C. B. 783, is the only case at all in your favor, and I think that is a desperate refinement." Per Blackburn, J., in Harris v. James, 45 L. J. Q. B. 546 ; 35 L. T. 241. "AN accident is something which may be pres- -^^^ ent or absent, without detriment to the subject." 3 1 Hunter V. Walters, 7 Ch. A pp. 80. 2 General View of the Criminal Law of England, p. 90. 3 Cited by Chief Justice Metingham, through a Latin transla- tion, from Porphyrins, Year Book, 21 & 2'J Edward I. 72. 32 ODDITIES OF TUB LAW. NON temere credere est nervus sapientise. Not to believe rashly is the nerve of wis- dom.^ IF a pauper be nonsuited, the usual practice is to tax the costs, and for non-payment to order him to be whipped.^ Salkeld reports : " I moved that a pauper might be wliipped for non-jiayment of costs upon a nonsuit, and the motion Avas denied by Holt, C. J., saying- he 'had no officer for that purpose, and never knew it done.' " ^ " A LBEIT he that hath accomplished the age -lIA- of fourteen years at the time of the mar- riage be not then able to pay the debt which he oweth to his wife, 3"et by the received opinion (though some dissent), the matrimou}^ is not therefore by and by to be adjudged void ; but she is to expect until he have overreached the eighteenth 3-ear of his age, wherein plena pubertas is concluded ; and if then, also, he be unable to pay liis dues, at the instance of the woman the marriage may be dissolved, unless the judge, upon the consideration of the equalities of the persons, shall grant a longer time."^ 1 Wade's Case, 5 Rep. 114 b. 3 2 Salk. 50G, 2 Bac. Ab. Pauper D. ^ Swinbourne on Spousals, 49. ODDITIES OF THE LAW. 33 ry^HE chronicler relates that Alan de Neville, -L chief forester of Henr}^ the Second, pleased the king during his (Alan's) lifetime, but that upon his death, when the brethren of a certain monastery sought a portion of his .substance for their house, the king showed his regard for his late forester b}^ replying, " I shall have his wealth ; but j-ou may have his carcass, and the devil may have his soul." ^ A CURIOUS instance of the plea molliter manus imposuit occurs in a case reported in Levinz.2 The ])lea to an action for assault and battery was that the female defendant, being the wife of an esquire and justice of the peace, the female plaintiff being the wife of a doctor in divinity, assumed to go before her at a funeral at Plymouth, whereupon the defendant gently laid her hands upon to displace her, as she law- fully might. The Court, without deciding the question of precedence, gave judgment for the plaintiff. SliNION filius Petri, Baron of the Exchequer, anno XI. Hen. II.3 1 Bigelow, History of Procedure in England, 14G, note. 2 Ashton V. Jennings, 2 Lev. 123. « 2 Madox Hist. Exch. 313. 34 ODDITIEti OF THE LAW. IT was decided, in the ]-)uelicss of Kingston's case, that a judgment which liad been ob- tained by fraud would not stand in the way of a prosecution of the duchess for bigamy ; that the suit in the Ecclesiastical Court was a contrivance merely, a link in the chain of fraud, and in truth no judgment. According to the pln-ase used by Lord Loughborough, Fabula, non judicium, hoc est ; in scenii, non in foro, res agitur.' "OTANDS in his shoes." "An expressive O phrase." 2 HENRY HUNT, the famous demagogue, hav- ing been brought up to receive sentence upon a conviction for holding a seditious meeting, began his address in mitigation of punishment by com- plaining of certain persons who had accused him of " stirring up the people by dangerous eloquence.''' Lord EUenborough, C. J. (in a very mild tone) : "My impartiality as a judge calls upon me to say, sir, that, in accusing you of that, they do you great injustice."^ 1 Lord Cranworth, in Sheclden v. Patrick, 1 Macqueen, 008, citing Wedderburn, S. G., in The Duchess of Kingston's Case, 20 Howell State Trials, 479. 2 Per Ilosnier, C. J., in Enos v. Tuttle, 3 Conn. 250. 8 Lord Campbell, Lives of the Chief Justices, IV. 300, 3d ed. ODDITIES OF THE LAW. 35 IN Massachusetts, in a very recent case, the Court say : " The question, which has been so ably and exhaustively argued by the counsel on each side, is one which cannot properly arise in this case." ^ BOLINGBROKE, after his partial pardon and return to England, being suspected of har- boring a person accused of a state crime, his house, and even his bed-chamber, as he was lying in his bed, were searched by the ministers of justice. Traitorous bed-fellow with him he had none ; a bed-fellow, however, he had, a female, whose reputation would have been ruined by the disclosure. Confusion more or less he could not but have betrayed. Had the search ended there, this confusion would naturally and properly have been regarded as circumstantial evidence of the crime he was suspected of. His presence of mind saved him from that mischance. Uncover- ing enough of her person to indicate the sex without betraying the individual, he preserved himself as well from the imputation of the crime of whicli he was not guilty as from the collateral misfortune which tliat imputation was so near brin^'iiiLT on his head.^ 1 Aulcb(ji-ough National Bank v. Rogers, 125 Mass. 34.3. 2 3 Bcntham Ev. 151 note. 36 ODDITIES OF THE LAW. "TN regard to professional communications, the -■- reason of public policy which excludes them applies solely to those between a client and his legal adviser ; and the rule is clear and well set- tled that the confidential counsellor, solicitor, or attorney of the party, cannot be compelled to dis- close papers delivered, or communications made to him, or letters or entries made by him, in that capacity.^ The rigid enforcement of this rule no doubt operates occasionall}^ to the exclusion of truth ; but if any one feels inclined to condemn the rule on this ground, he will do well to reflect on the eloquent language of the late Lord Justice Knight Bruce, who, while discussing this subject on one occasion, felicitously observed, " Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much. And surely the meanness and the mis- chief of prying into a man's confidential consul- tations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, suspicion, and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessl}' or Avorse, are too great a price to pay for trutli itself." 2 1 1 Greenl. Ev. § 237. 2 Pearse v. Pearse, 1 De Gex & Smale, 28, 29 ODDITIES OF THE LAW. 37 IT was finely remarked by Roger North, that " Generally, in the law as well as in all other human literature, antiquity is the founda- tion ; for he that knows the elder can distinguish what is new, but he that deals only in the new cannot tell how fresh or stale his opinions are, nor from whence they are derived." ^ But it is of equal importance, that, knowing the new, he should be able to distinguish the elder. It is, indeed, the advice of Lord Coke, that after the student " is enabled and armed to set on our Year Books, let him read first the later reports, for two causes : First, for that for the most part the latter judgments and resolutions are the surest, and therefore it is the best to season him Avith them in the beginning, l)oth for the settling of his judgment and for the retaining of them in memory ; secondly, for that the latter are more- facile, antl easier to be understood, than the more ancient; but, after the reading of them, then to read these others before mentioned, and all the ancient authors that have writen of our law, for I would wish our student to bo a complete lawyer." ^ IT is a beautiful expression of Lord Bacon's, tliat "he that robs in darkness breaks God's lock." 1 Discourse on the Study of tlie Laws, p. 10, cd. 1824- 2 Co. Litt. 240 b. 1 Kent Coinni. 479. 88 ODDITIES OF THE LAW. THE rule that ignorance of the law shall not excuse a man, or relieve him from the penal consequences of a crime, is sometimes spoken of as arising from a presumption that every person knows the law. Mr. Justice Maule once observed that " There is no presumption in this country that every person knows the law : it would be contrary to common sense and reason if it were so." Martindale v. Falkner, 2 C. B. 720. This language was characterized by Mr. Justice Black- burn as clear, and common sense. Regina v. Tewksbury, L. R. 3 Q. B. 629 ; 37 L. J. Q. B. 288. No j)rinciple is better established than that ignorance of the law is no excuse for its viokition. On the other hand, there is a class of cases in which the ignorance of facts is held to be a com- plete defence.' TN The Protector v. Geering, Hardres, 99, At- -L kins says, arguendo, " Errors are like felons and traytors ; auT/ man may discover them ; they do caput gerere lupinum." IN Brown v. Littin, 1 P. Wms. 140, Lord Keeper Harcourt said, "that, this being an island, all imaginable encouragement ought to be given to trade." 1 Heard Crim. PI. 152. ODDITIES OF THE LAW. 89 LORD BACON, in his advice to Mr. Justice Hutton, says, " You should be a light to jurors to open their eyes, but not a guide to lead them by their noses." TESTATORS should be prevented, if possible, " from sinning in their graves." This expres- sion, which has become one of the current b}'- phrases always used in courts of equity on the fitting occasion, fell from Sir John Strauge, in Thomas v. Brittnell, 2 Ves. Sen. 314. "T TEARS AY is no evidence ; but it may be -J — *- admitted in corroboration of a witness's testimony " 1 SIR BARTHOLOMEW SHOWER'S mode of treating Monmouth's invasion is excel- lent for its brevity. " Memorandum. In Trinity Term, Monmouth's rebellion in the West prevent- ed much business. In the vacation following, by reason of that rebellion, there was no assizes held in the western circuit ; but afterwards five judges went as commissioners of oyer and terminer and gaol-delivery, and three hundred and ffty-one of the rebels were executed^'' etc.^ 1 Gilb. Ev, 890. 2 2 Show. 434. 40 ODDITIES OF THE LAW. SIR FREDERICK THESIGER^ afterwards Lord Chelmsford, being engaged in tlie con- duct of a case, objected to tlie irregularity of a learned sergeant who repeatedly put leading ques- tions in examining his witnesses. " I have a right," maintained the sergeant doggedly, " to deal with my witnesses as I please." — " To that I offer no objection," retorted Sir Frederick ; " You may deal as you like ; but you shan't lead." 'TTIHIS is a very impartial country for justice," -L said Sam. " There ain't a mao-istrate e'oinjx as don't commit hisself twice as often as he com- mits other people." — Pickwick. IX the famous Burgess's Anchovy Case the two sons of the inventor were the litigants. The brother who succeeded to the business com- plained that the other was nevertheless vending "Burgess's Sauce." Sir J, Knight Bruce, the Vice Chancellor, began to sum up as follows : " All the Queen's subjects are entitled to manufacture pickles and sauces, and not the less so that their fathers have done it before them. All the Queen's subjects are entitled to use their own names, and not the less so that their fathers have done it before them." ODDITIES OF THE LAW. 41 TTTHEN Thelwall was on his trial for high ▼V treason, he wrote the following note clnr- ing the evidence for the prosecution, and sent it over to Erskine, his counsel : "• I am determined to plead my cause myself." Erskine wrote under it, " If you do, you'll be hanged ; " to which Thelwall replied, " Then I'll be hanged if I do^ LORD THURLOW, whHe at the bar, met a barrister one morning who accosted him with, " Oh ! I am told that the barmaid at Nando's has a Httle baby." — " What the d— 1 is that to me ? " — " But," pursued the barrister, " I hear the child, is yours." — " Then what the d — 1 is that to 9/ou? " "TTT"HEN Plunket was driven to resign the » ^ Irish Chancellorship, he was succeeded by Lord Campbell. The day of the latter's arrival was very stormy, and a friend remarked to Plunket how sick of his promotion the passage must have made the new-comer. "Yes," he replied ruefully; "but it won't make him throw up the seals." LORD BROUGHAM defined a lawyer as "a legal gentleman who rescues your estate from your enemies, and keeps it himself." 42 ODDITIES OF THE LAW. IN manslaughter, according to the old authori- ties, there can be no accessories before the fact, for the offence is sudden and unpremedi- tated ; and therefore, if A be indicted for murder, and B as accessory, if the jury find A guilty of manslaughter, they must acquit B. But the doc- trine on the subject has been verj' differently adjudicated in recent cases, and must be limited to those cases where the act which causes the death is sudden and unpremeditated.^ Thus, a man may be such an accessory b}'" procuring poison for a pregnant woman to take in order to procure abortion, and which she takes, and thereby causes her death. Regina v. Gaylor, Dearsly & Bell C. C. 288; 7 Cox C. C. 253. During the argument in this case, Bramwell, B., said, " Suppose a man, for mischief, gives another 1 To support an indictment for being accessory before the fact to manslaughter, as well as to other felonies, there must be an active proceeding on the part of the defendant : he must procure, incite, or in some other way encourage, the act of the principal. Therefore, where tlie defendant acted as stakeholder on the occa- sion of a prize fight which ended in the death of one of the fighters, but took no other i>art in the circumstances attending the fight, at which he was not present, than to hold the stakes, and liand them over afterwards to the winner, it was held that Le could not be convicted as accessory before the fact to the manslaughter. During the argument Mr. Justice ISIellor asked, " Can there be an accessory before the fact to a manslaughter of this kind, whicli is not in any way contemplated befor(;hand, but which occurs accidentally?" And the Court, without settling the question, quashed the conviction. Regina v. Taylor, L. R. 2 C. C. 147. ODDITIES OF TUE LAW. 43 a strong dose of medicine, not intending any fur- ther injury than to cause him to be sick and uncomfortable, and death ensues, would not that be manslaughter ? Suppose, then, another had counselled him to do it, would not he who coun- selled be an accessory before the fact ? " " The case of Regina v. Gaylor," said Mr. Jus- tice Lord in a very recent case,^ "is a peculiar one ; and it is interesting, not for the principles of law which were or might be supposed to be settled by it, for the Court took time for advisement, and subsequently, as the report says, 'affirmed the conviction, but without giving their reasons for so doing ; ' but it is interesting rather by rea- son of the discussion between the judges and the counsel during the argument. Gaylor's wife had produced her own death by voluntarily taking a drug for the purpose, as she supposed, of procur- ing an abortion upon herself, though in fact she was not jDregnant. The prisoner was indicted, not as an accessory before the fact to her murder, but for the substantive offence of manslaughter ; and counsel and Court both indulged in interest- ing and acute queries as to the nature of the offences, both that committed by the wife and that by the liusband ; and various speculations as to tlie nature of the offence were suggested. The grounds suggested by the prisoner's counsel, upon 1 Commonwealth v. Cbiovaro, 129 Mass. 494, A.D. 1880. 44 ODDITIES OF THE LAW. which the Court should liohl tliat the facts in the case did not constitute the crime of man- slaughter were, that the prisoner's wife, in wilfully committing an unlawful act which might cause her death, and which, in fact, did cause her death, was a felo de se, and therefore guilty of the crime of murder; and also that the facts proved against the defendant showed him to be merely an accessory to the crime 5 and as in law there could be no such offence as an accessory before the fact in manslaughter, no offence was charged. It was evidenth' a case of novel impres- sion, and although one or more of the judges were in doubt whether the doctrine, as laid down by Lord Hale, that there can be no accessory to manslaughter, might not admit of some qualifica- tion, under peculiar circumstances, Ave know only that the prisoner was held guilty of manslaughter, without knowing any of the grounds upon which the decision was based; and the last remark of Pollock, C. B., was, 'You have not satisfied me, that, as far as the woman is concerned, she has' been guilty of any offence at all.' The interrup- tions of judges in the course of an argument are not adjudications." This last remark is true , still, the discussions between the bench and the bar during an argu- ment are not only entertaining and instructive, but the ratio decidendi is clearly brought out: ODDITIES OF THE LAW. 45 indeed, in most cases, these discussions are so exhaustive, that there is seldom any judgment pronounced at length. The entry is simply " con- viction affirmed," or " conviction quashed," as the case may be. THERE is a curious case in Fortescue's Re- ports, relating to the privilege of peers, in which the bailiff who arrested a lord was forced by the Court to kneel down and ask his pardon, though he alleged that he had acted by mistake, for that his lordship had a dirty shirt, a worn-out suit of clothes, and only sixpence in his pocket, so that he could not believe he was a peer, and arrested him through inadvertence.^ SERGEANT K. having made two or three mis- takes while conducting a cause, petulantly exclaimed, " I seem to be inoculated with dulness to-day." — " Inoculated, brother ? " said Erskine, "I thought you had it in the natural way." /milEF JUSTICE BUSHE, on being told ^-^ that tlie judges in the Court of Common Pleas liad little or nothing to do, remarked, "Well, well, they're quite equal to it." 1 Lord Mordiugtou's Case, Fort. 1G5. 4G ODDITIES OF THE LAW. IN a case in Liber Assissarum, J. ^yaR indicted for battery of R. and sued K. in trespass for the same battery : plea, son assault demesne, and issue thereon. T. H. one of those who indicted (found the bill), was of the inquest on the trial of the action of trespass, and gave a verdict for the plaintiff with twenty shillings damages; and T. li. was committed to the custody of the marshal, and fined for two causes, one of whicli was, that he was one of the indicters of the said J. wliom now he has acquitted, and did not challenge himself.^ LORD CLARE one day brought a Newfound- land dog upon the bench, and began to caress the animal while Curran was addressing the Court. Of course, the latter stopped. " Go on, go on, Mr. Curran," said his lordship. " Oh ! I beg a thousand pardons, my lord," returned the advocate : " I really thought your lordship was employed in consultation." /^RABB ROBINSON, just called to the bar, V_V told Charles Lamb exultingiy that he was retained in a cause in the King's Bench. "Ah," said Lamb ; " the first great cause, least under- stood." 1 Lib. Assis. 40 Eclw. III. f . 241, A. pi. 10. 8 Ad. & El. 834 note. ODDITIES OF TUE LAW. 47 LORD KENYON thus addressed a dishonest butler who had been convicted of stealing- large quantities of wine from his master's cellar: "Prisoner at the bar, you stand convicted, on the most conclusive evidence, of a crime of inexpress- ible atrocity, — a crime that defiles the sacred springs of domestic confidence, and is calculated to strike alarm into the breast of every English- man who invests largely in the choicer vintages of Southern Europe. Like the serpent of old, you have stung the hand of your protector. Fortu- nate in having a generous employer, you might, without dishonesty, have continued to supply your wretched wife and children with the comforts of sufficient prosperity, and even with some of the luxuries of affluence ; but dead to every claim of natural affection, and blind to your own real in- terest, you burst througli all the restraints of reli- gion and moralit}^ and have for many years been feathering your nest with 3'our master's bottles." JEKYLL one day received an invitation to Lansdowne House, but excused liimself by a prior engagement to meet tlie judges. During the dinner a part of the ceiling at Lansdowne House fell in. Jekyll afterwards described liis escape tlius: "I was asked to 7'uat caelum, but dined instead witli fiat justitia.^^ 48 ODDITIES OF THE LAW. A MAN having been convicted of bigamy before Mr. Justice Maiile, the following dialogue took place : — Clerk of Assize. What have you to say why judgment should not be passed upon you accord- ing to law? Peisoner. Well, my lord, my wife took up with a hawker, and ran away five years ago ; and I have never seen her since, and I married this woman last winter. ]\Ir. Justice Maule. I will tell you what you ought to have done ; and, if you sa}^ you did not know, I must tell you that the law conclusively presumes that you did. You ought to have in- structed your attorney to bring an action against the hawker for criminal conversation with your wife. That would have cost you about a hun- dred pounds. When you had recovered substan- tial damages against the hawker, you should have instructed your proctor to sue in the Ecclesiastical Courts for a divorce a mensa et thoro. That would have cost you two hundred or three hundred pounds more. When you had obtained a divorce a mensa et thoro, you would have had to appear by counsel before the House of Lords for a divorce a vinculo matrimonii. The bill might have been opposed in all its stages in both Houses of Parlia- ment, and altogether you would have had to spend about a thousand or twelve hundred pounds. ODDITIES OF THE LAW. 49 You will probably tell me that you never had a thousand farthings of your own in the world; but, prisoner, that makes no difference. Sitting here as a British judge, it is my duty to tell 3'ou that this is not a country in which there is one law for the rich, and another for the poor. THE following is an extract from a case de- cided by the Supreme Judicial Court of ]\Iassachusetts. The facts are sufficiently stated in the opinion, wdiich was delivered by Mr. Jus- tice Gushing : — " Eliakim Willis was pastor of the parish of Maiden; a bachelor, or a widower without chil- dren : a devout old man of the state of theological opinion prevailing at the close of the last century, when Puritanism, though ceasing to be exclusive, was not the less earnest and sincere. He was from New Bedford, where he had a brother, Eben- ezer Willis, still living ; and he retained there, as a reminiscence of his youth, the old family pew in the North Meeting House. By prudence and care he had economized out of his modest salary as a country clergyman a decent estate, consisting chiefly of land. His brothers, Ebenezer and Jireh, were, it may be presumed, reasonably well off; for he bequeathed to them by his will some personal objects only, as tokens of remembrance and affec- 50 ODDITIES OF THE LAW. tion. He had a widowed sister, Mercy Marchant, for whose comfortable support through life lie pro- vided. He remembered the church in which he had so long ministered, and gave to it his favorite copy of the Bible, to be read in public on every Lord's Day. "He then looked around for some object of general philanthropy worthy of his regard. He doubted, but on the whole came to a Avise con- clusion, and resolved to make a donation to the Society for the Propagation of the Gospel among the Indians, wdio, he might have reflected, iiad not been over-well treated, either by England or by her colonies in New England. As to family connec- tions, he had a favorite niece, who had passed through her romance of youth, had married, and been left by her deceased husband a widow, with two children, but without property, and had been invited by her good uncle to look to him for sup- port, and probably been taken into his family. Among the parishioners of Mr. Willis was a sub- stantial and worthy gentleman, himself a widower, apparently with a child or children. Avery natu- ral event followed. Col. Popkin married the still comely widow ; and a tliird family grew up under the eyes, and enjoying the affection, of 'Mr. Willis. Such was the condition of the family when the will was made. " Mr. Willis looked considerately after his own ODDITIES OF THE LAW. 51 affairs, but consulted Col. Popkin, and was ten- derly cared for b}* his niece, Mrs. Popkin. They were his children in affection. Accordingly, in making general disposition of his property, he divided the bulk of it equally between the fruits, respectively, of the first and second marriages of his niece, providing, however, that she should have the improvement of the whole estate during her natural life. But here doubts as to the law came into his mind. The spectre of the celebrated rule in Shelley's Case rose before him. Perhaps, for it happened during his life, he had read or heard of the tribulation and perplexities of the Earl of Mansfield in the case of Perrin v. Blake. And accordingly, after making the devise to the two sets of his niece's children, with reservation of a life estate in his niece, he added the following words : ' If it is not contrary to the laws of this Commonwealth — the preceding article notwith- standing — if it is contrary, this item I hereby make null and void, so as in no way to affect the other items of this my last will." In this way his niece and her children were amply considered, and the whole office of gratitude and love to them, and each of them respective!}', was faith- fully performed so far as the case would allow it to be done." ' 1 Popkin V. Sargent, 10 Cash. .132, 333. 52 ODDITIES OF THE LAW. IN the case of James v. CommonAvealth, 12 S. & R. 220, it was decided that the ducking-stool is not the punishment of a common scokl in Penn- sylvania. Mr. Justice Duncan delivered a very lengtliy and amusing opinion, in which lie ex- hausted the entire learning on the subject. We present two short extracts ; but the whole opinion is Avell worthy of perusal. "Now, I ask," he says, "with as much gravity as I can command, if jNlrs. Thrale — the widow of the great brewer Thrale, the ricli, learned, accomplished, and fashionable Mrs. Thrale — had not put sufficient malt in her liquor, if she should be exposed to the j)unishment of the cucking-stool, and be ducked in stinking water; or if the celebrated Dr. Johnson — the levia- than of learning, the executor of ]Mr. Thralo's will — had broken the assize, if the pillory would have been his punishment ? for I think we are informed by Mr. Boswell that he saw him in the brewery, attending to its concerns, and bustling about, with his inkhorn tied to the button of his coat ; or would he be ducked in stercore, for Jacobs, in his Dictionary informs us the trebucket was a punish- ment for brewers and bakers, who were ducked in stercore, or in stinking water ; and we must never forget that the law professes equality of punish- ment ; that the common law, which stamps free- dom and e(i[uality upon all who are subject to it, Avhich protects and punishes with an equal hand ODDITIES OF TUE LAW. 53 the higli and the low, the proud and tlie humble, I say professes, for in the trebucket punishment wt shall presently see that it was never intended for the rich, and never was inflicted on beauty and youth." And again, at p. 235 : " I am far from professing the same reverence for all the degrading and ludi- crous punishments of the early days of the common law, — I am far from thinking that this is an un- broken pillar of the common law, or that to re- move this rubbish would impair a structure which no man can admire more than I do. But I must confess I am not so idolatrous a worshipper as to tie myself to the tail of this dung-cart of the com- mon law." SIR FLETCHER NORTON, whose want of courtesy was notorious, happened, while pleading before Lord Mansfield on some question of manorial right, to say, " My lord, I can illus- trate the point in an instant in my own person. I myself have too little manorsy — " We all know it. Sir Fletcher," interposed the judge with one of his blandest smiles. SELF-DEFENCE is the clearest of all laws ; and for this reason, — the lawyers didn't make it. — Jboujlaa Jerrold. 54 ODDITIES OF THE LAW. IN a verj recent case a learned judge thus suggestively premises his opinion : " The full argument of counsel, occupying seventeen entire dai/s, and an examination of the records, have satisfied me," etc. It has been well said that there must remain some humor and some patience in the Fifth Circuit.' ^T'THEN Daniel O'Connell, while conducting a ^ ' case before Lord Norbury, observed, " Par- don, my lord, I am afraid your lordship does not apprehend me," the Chief Justice (alluding to a report that O'Connell had avoided a duel by sur- rendering himself to the police) retorted, " Par- don- me also: no one is more easily apprehended than Mr. O'Connell — whenever he wishes to be ■apprehended." IN the perusal of a very solid book on ecclesias- tical law, including the progress of the ecclesi- astical differences in Ireland, written by a native of that country, after a good deal of tedious and vexatious matter, the reader's complacency is re- stored by an artless statement how an eminent person "abandoned the errors of the Church of Rome, and adopted those of the Church of Eng- land." 1 Gaines v. Lizardi, 3 Woods C. C. 78, ODDITIES OF THE LAW. 55 "T HEAR," said somebody to Jekyll, " that our -L friend Smith the attorney is dead, and leayes yery few effects." — " It could scarcely be other- ^yise," returned Jekyll : " he had so verj- few causes." THE following is a specimen of Mr. Justice JNIaule's way of addressing a jury : — Gentlemen, the learned counsel is perfectly right in his law. There is so7ne eyidence upon that point. But he is a lawyer, and you are not ; and you don't know Avhat he means by some eyidence, and so I'll tell you. Suppose there was an action on a bill of exchange, and six people swore they saw the defendant accept it, and six others swore they heard him say that he should haye to pay it, and six others knew him intimately, and swore to his handwriting. And suppose, on the other side, they called a poor old man who had been at school with the defendant forty years before, and not seen him since, and he said he rather thought the acceptance was not his writing: why, there Avould be some eyidence that it was not. And that is what the learned counsel means in this case. THE liar formality of the law is the prudery of a lot." 1 1 riiilliiriorc Ev. 20G. 56 ODDITIES OF THE LAW. "IV /|~Y client," said an Irish advocate, pleading -'-^-J- before Lord Norbury in an action for trespass, "is a poor man. He lives in a hovel, and his miserable dwelling is in a forlorn and dilapidated state ; bnt, thank God ! tlie laborer's cottage, however rninous its plight, is his sanctu- ary and ins castle. Yes, the winds may enter it, and the rain may enter it ; bnt tlie King cannot enter it.*' — "What, not the reigning king?" in- quired his lordship. /^ ILBERT A BECKETT celebrated his ele- V-^ vation to the office of maoistrate at the GreeuAvich Police Court by a characteristic pun. A gentleman came before him to prefer a charge of robbery with violence, committed in the middle of the niglit. In stating his case he mentioned that the assault occurred Avhile iie was retiu-ning liome from an evening part3^ The worthy magis- trate interrupted him by observing, " Really, sir, I cannot make up my mind to accept any thing like an ex parte statement." N Finch's Law, p. 220, sorcery is tlius defined : " Sorcer}^ is a consulting witli devils, and con- taineth under it conjuring, necromancy, and such like." ODDITIES OF THE LAW. 57 A BARRISTER opened a case very confusedly before jNIr. Justice Maule. " I wish, sir," interrupted the judge, "yoii wouhl put your facts in some order : cln^onological order is the best ; but I am not particular. Any order you like, — alphabetical order." A CURIOUS case is reported iii the Year Book, 4 Heiuy VII. 5, in which an ecclesiastical chancellor, Archbishop Morton, threatened a de- fendant with punishment in the next world, as the common law could not reach him in this. The suit was against an executor who had released a debt due to the testator without the assent of his coexecutor. It Avas argued that the law gave no remedy against such an act. Chancellor. Sir, I know well that every law is, or of light ought to be, according to the law of God ; and the law of God is that an execu- tor who is of evil disposition shall not expend all the property ; and I know well that if he does so, and does not make amends, or is not willing to make restitution, if it be in his power, he shall be damned in hell. A PETITION to the House of Lords was once rejected for omitting the word " humbly." ^ 1 40 Pari. Dol. 1270. 58 ODDITIES OF THE LA]V. MRS. J. L., wlio was a widuw and cliildless, aged seventy-five, within a few days after first seeing H., wlio claimed to be a '• spiritual medium," was induced, from her belief that she was fulfilling the wishes of her deceased liusband, conveyed to her through the medium of H., to adopt him as her son, and transfer twenty-four thousand pounds to him, to make her will in his favor, afterwards to give liim a further sum of six thousand pounds, and also to settle upon liim, subject to her life-interest, the reversion of thirty thousand pounds, — these gifts being made without consideration and without power of revocation. Of course in a Court of Equity these voluntary gifts were set aside. • Sir G. M. Giffard, V. C. : "I have to observe that the system of ' spiritualism ' as presented by the evidence is mischievous nonsense, well calcu- lated, on the one hand, to delude the vain, the weak, the foolish, and the superstitious ; and on the other to assist the projects of the needy and of the adventurer ; and lastly, that beyond all doubt there is plain law enough and plain sense enough to forbid and prevent the retention of acquisitions such as these by any ' medium,' whether with or without a strange gift ; and that this should be so is of public concern, and, to use the words of Lord Hardwicke, ' of the highest public utility.' " 1 Lyou V. Home, L. R. 6 Eq. U55. ODDITIES OF THE LAW. 59 A MAN being condemned to tlie pillory in or abont Elizabetli's time, the foot-board on which he was ]ilaccd proved to be rotten, and down it fell, leaving Jiim hanging by tlie neck in danger of his life. On being liberated, he brought an action against the town for the insufficiency of its pillory, and recovered damages. A GENERAL principle of universal applica- tion is thus tersely expressed ; " A contract in one place makes a man a debtor in every place." 1 Saund. 7-1, 6th ed. A BAILIFF who had been compelled to swal- low a writ, 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." WHERE a party has tlie power to consum- mate the marriage by sexual intercourse, Ijut refuses to do it, this is not im[)otency ; but it is d()iil)trul whether it is not malicious desertion, justifying divorce.' 1 The caso of Southwick v. Southwick, 97 Mass. 327, and Covvles V. Cowles, 112 Mass. 12'J8, decide that it is not. 60 ODDITIES OF THE LAW. SIC utere tuo ut alieniim non laedas. This maxim was once discarded unceremoniously by Mr. Justice Erie. " The maxim," he said, " is mere verbiage. A party may damage property where the law permits, and may not wliere the law prohibits : so that the maxim can never be applied till the law is ascertained ; and when it is, the maxim is superfluous." ^ LORD ABINGER had a clear way of putting a point. When a question was raised by government with respect to the right of persons to take water from Portsmouth Harbor, Lord Abinsfer said : " An old woman must not take a bucket of water from that harbor, lest a seventy- four should not float." ^ IN The Case of Swans, 7 Rep. 16, it was held that the swan is a royal fowl, and that all white swans 7iot mai-ked, which have gained their natural libert}', and are found swimming in an open and common river, ma}^ be seized to the King's use by liis prerogative. Whether the same prerogative applies to black swans the authorities do not inform us. 1 Bonorai v. Backhouse, EL Bl. & El. 643 ; 27 L. J. Q. B. 388. 2 Per Aldersou, B. in Embrey v. Owen, 15 Jur. p. 030. ODDITIES OF THE LAW. 61 REX V. Johnson, Comberbach, 377. The mar- ginal note runs thus : " Fine on indictment for lying with another man's wife. Q." The report states that " The defendant appeared to be fined upon an indictment for seducing and lying with another man's wife. Northy moved to charge him with an action; but the Court would not suffer that, now he comes to submit to a fine." IN a recent case in Louisiana, ]Mr. Justice Howe uses the following lano-iiao-e in delivering the judgment : '• We need in criminal matters the 'justice, mercy, and truth' of the common law, and not its 'mint, anise, and cumin.' There is no more need that the State of Louisiana should make vain repetitions in her pleadings than there is that her Christians, should make them in their prayers." ^ iN the preface to Fortescue's Reports, which consists of thirty-one folio pages, Ave are in- formed tliat " The grand division of law is into the divine law and the law of nature ; so that the study of law in general is the business of men and angels. Angels may desire to look into both the one and the other; but tliey will never be able to fathom the depths of either." 1 State V. Phelps, 24 La. Ann. 402. 62 ODDITIES OF THE LAW. TN The Queen v. Ilaitnett, Jcbb, C. C. 302, the J- judge omitted, in pronouncing sentence on a conviction for murder, to order that the bodies of tlie prisoners shoukl be buried within the precincts of the jail, as directed bj' statute ; but on a subse- quent day, on ruling the book at the close of the same assizes, in the absence of the prisoners, ordered the above clause to be inserted. It was held by a majority of the judges that the original sentence of death was illegal, because it did not contain an order that the bodies should be buried within the precincts of the jail ; that the statute was not merely directory, but made the order a part of the seutence. The prisoners were dischaiged. IN the case of Drake v. State, 51 Ala. 30, is tliis note in the margin by the reporter: "The reporter does not believe that the o[iinion in this case was intended to change the settled rule of law as laid down in the several cases cited, and he has therefore made the head-note conform to those cases, and not to the language of the opinion." MR. JUSTICE INIAULE once asked, " What difference is there between ' discretion ' and ' sound discretion ? ' " i 1 Regiua v. Dailiugtou, G Q. B. 700. ODDITIES OF THE LAW. 63 " rriHE Albany Law Journal " makes mention -^ of a statute of New York which allowed deductions of a certain number of days to be made on account of good beliavior from the term of imprisonment of convicts, witli a proviso that the statute should not apply to any person sentenced for the term of Jiis natural life. ^T7"E see that works of nature are best pre- ^ T served from their own beginnings, frames of policy are best strengtliened from tlie same ground they were first founded, and justice is ever best administered when laws be executed according to their true and genuine institution.^ A WITTY reporter writes this head-note : " It seems that a married man intending to effect seduction may blunder into bigamy." ^ LAWS are often mere notice-boards set up in out-f)f-tlie-way jjlaces where no one can read tliom. If you wish to keep people off a road, close it witli a barrier that stops the most heedless man at tlie very entrance. It is better to make trespass impossible tluin forl)id it. — Jouhert. 1 rrcf. to 8 Rep. p. xxvi. 2 Hayes v. People, 25 N.Y. 390. 64 ODDITIES OF THE LAW. PROFESSOR CHRISTIAN says that the description of law given by Demosthenes is perhaps the nearest perfect and the most sat- isfactory that can be found or conceived:^ — "The design and object of hiws is to ascertain wliat is just, honoraljle, and expedient ; and wlicn that is discovered, it is i)rochiimed as a general ordinance, equal and im})artial to all. This is the origin of law, Avhich, for various reasons, all are under an obligation to obey, but especiall}' because all law is the invention and gift of Heaven, the sentiment of wise men, tlie correction of every offence, and the general compact of the State ; to live in conformity w^ith which is the duty of every individual in society." ^ THERE are some acts of justice which corrupt those who perform them. — Joubert. 1 1 Bl. Comm. 44 note, 12th etl. 2 Cont. Aristog. I. § li). Kennedy translates : " Laws desire what is just and honorable and useful ; they seek for this, and when it is found, it is set forth as a general ordinance, the same and alike for all; and that is law, which all men ought to obey for many reasons, and especially because every law is an inven- tion and gift of the Gods, a resolution of wise men, a corrective of errors intentional and unintentional, a compact of the whole State, according to which all who belong to the State ought to live." Cf. Hooker's noble description of Law, in Eccles. Polit. I. 16, 8, and Church's Notes, p. lo5, where he compares Dante, Paradi. I. 104-121. ODDITIES OF THE LAW. 65 THE absurdity of requiring a plurality of wit- nesses, except in cases of treason, perjury, etc., is illustrated in a case in wliicli a husband, having, with a female servant, found his wife with her paramour, recovered before a jury five hun- dred i)Ounds damages of the latter, but in the Ecclesiastical Court was refused a divorce which was prayed for upon the same evidence.^ A JUSTICE of the peace sends the servant of L. R. to the house of correction for being saucy, and giving too much corn to his horses. The Court held this was not a sufficient cause to send a man to the house of correction.^ Accord- ing to a crown case reserved, decided long after- wards, the servant might have been committed for larceny.3 SHOWER reports a case of sharp practice, in wliich "the attorney and counsel botli were cliecked f(jr this snapping practice ; " and they were told by Scroggs, Chief Justice, that "since you have gone so vigorously to work, we will use the rigor of the law against you."* 1 Evans v. Evans, 1 Rolmrtson Eccl. IG.'j. 2 The King v, Okey, 8 Mod A',. 8 Tlic King V. IMorfit, Kus.s(;ll & Ryan C. C. 307. * Ilarwood v. ■NVheeler, 2 Show. 7'J. 66 ODDITIES OF THE LAW. r^lUEF BARON POLLOCK observed, in the ^-^ course of the argument of a crown case reserved : " The word ' indecently ' lias no definite legal meaning : and with respect to tlie word 'presence,' I remember that in our older courts of justice the judge retired to a corner of the court for a necessary purpose, even in tlie pres- ence of ladies. That, perhaps, would be con- sidered indecent now." ^ TUSTICE is truth in action. — Jouhert. MR. JOHN MITCHELL KE:\[BLE once related, that among other illustrations of ancient tenures, forest rights, etc., which he had picked up at Addlestone, was the custom of de- ciding how far the rights of the owner of land extended into the stream on which his i)roperty is situated by a man standing on the brink with one foot on the land, and the other in the water, and throwing a tenpenu}^ hatchet into tlie water : where the hatchet fell was the limit. This he had learned from an old man born and bred in the forest who remembered having once seen it done.^ 1 Retina v. "Webb, 2 C. & K. 938. 2 The Niueteenth Century, July, 1881, p. 75. ODDITIES OF THE LAW. 67 NO man ought to fill the position of both advo- cate and judge at the same time and place. The following anecdote sets this in a stronger light than any discussion of the subject. Whilst a prisoner was being tried before a commissioner, the solicitor for the defence asked his counsel to raise some frivolous objection. The counsel re- fused, on the ground that the commissioner would overrule it. The solicitor replied, " Oh ! he is all right. I have just given his clerk a brief." ^ MR. JUSTICE MAULE was in the act of passing sentence upon a man, when the governor of the county jail came to the table to deliver some calendars to members of the bar, and in so doing passed between the prisoner and the judge, who thereupon intimated to the gov- ernor that in so doing he had outraged one of the best known conventional rules of society. " Don't you know," said the judge, "you ought never jiass between two gentlemen when one gentleman is addressing another ? " The offender against this conventional rule apologized and retired, where- upon the judge sentenced the other gentleman to seven years' transportation. 1 Sir James Stephen, in The Nineteenth Century, December, 1877, p. 744. 68 ODDITIES OF THE LAW. IN an action to recover damages for an illegal invasion, by imitation, of the plaintiff's trade- mark for the sale of a certain washing powder, Mr. Justice Sanderson gives this description of the plaintiff's label : — " The plaintiff's label commences with a highly- colored picture, representing a washing-room with tubs, baskets, clothes-lines, etc. There are two tubs painted yellow, at each of which stands a female of remarkably muscular dcveloimient, with arms uncovered, and clad in a red dress, which is tucked up at the sides, exposing to view a red petticoat with three black stripes running around it near the lower extremit}''. Each is apparently actively engaged in washing ; and clouds of steam are gracefully rolling up from the tubs, and dis- persing along the ceiling. In the background is extended across the room a clothes-line, upon which are suspended stockings and other under- garments, which have evidently just been put to use in testing the cleansing properties of the plaintiff's washing powder. To the left of the washerwomen stands a lady in a yellow bonnet, red dress, green Congress gaiters, and hoops of ample circumference ; upon her left arm is sus- pended a yellow basket; and in her left hand, which is encased in a red glove, is held a red parasol ; while the right, which is encased in a green glove, is gracefully extended towards the ODDITIES OF THE LAW. 69 nearest washerwoman in an attitude of earnest entreaty. In the immediate foreground is a yellow and green clothes-basket full of dirty linen, and a yellow and green soap packing-box, upon which are printed in small capitals, the words, ' Stand- ard Co.'s Soap.' Each washtub is supported by a four-legged stool, some of the legs being yellow, some red, some green, and some all three. The floor of the room, as to color, is in part of a j^el- lowish green, and in part of a greenish red ; while the walls are of a grayish blue. This is but an imperfect description of the picture with which the plaintiff's label is adorned. The design is good, for it is eminently suggestive of the charac- ter of the plaintiff's goods." The learned judge then proceeds to give an humorous description of the defendant's labels.^ SIR JOHN NICHOLL, in pronouncing judg. ment in one case, said that the woman was past the age of child-bearing at the time of the marriage, therefore the primary and most legiti- mate object of wedlock, the procreation of issue, could not operate ; and a man of sixty who mar- ries a woman of fifty-two should be contented to take her tanquam soror.^^ ^ 1 Falkinburg v. Lucy, -35 Cal. 52, Gl. 2 Brown V. Brown, 1 Ilagg. Eccl. 523. 70 ODDITIES OF THE LAW. IN a celebrated case, Pollock, C. B., observed r^ "• We have had in this county no Court of Criminal Equity since the Star Cliamber was abolished, as Lord Campbell called it, in a case wliicli was tried before him. " ^ TN Webb V. Weatherby, 1 Bing. N. C. 504, J- counsel, contending that a replication was ill, urged in conclusion, that " a departure from forms so long cstablislicd will weaken the foundation and shake the whole fabric f)f the law of England." Tindal, C. J., quietly said: "I hope the law of England will not be much disturbed if we over- rule this demurrer." THE marginal note to Clement's Case, 1 Lewin C. C. 113, runs thus : " Possession in Scot- land evidence of stealing in England." Tliis is the summary of a case of horse-stealing tried at Carlisle, the evidence being that the horse was a few days afterwards found in the prisoner's pos- session across the border ; and it lias been made the ground for much gibing by tlie English, at the acquisitive propensities of tlieir Northern brethren. 1 Attorney General v. Sillem, 2 H. & C. 500. 2 Emperor of Austria v. Day, 3 DeG. F. & J. 239. ODDITIES OF THE LAW. 71 LORD ELDON lent two large volumes of pre- cedents to a friend, and could not recollect to whom. In allusion to such borrowers, he observed, that, " though backward in accountingy they seemed to be practised in hook-keeping.''^ IT may be a consolation to the bar to know that many years ago the Court of Common Pleas refused to hear an affidavit read, because the barrister therein named had not the addition " esquire " to his name.^ "rp HE King being God's lieutenant cannot do a wrong." — 11 Rep. 72 a. THERE is a very ancient precedent of judges going circuit. "And he went from year to year in circuit to Bethel, and Gilgal, and ^Mizjieh, and judged Israel in all those places." — 1 Sam. vii. 16. — •-•-• — « BY the Court : " You cannot change your attor- ney without leave of Court, to be obtained on motion, though lie be ever so great a cheat." ^ 1 1 Wils. 245. a 7 Mod. 50. 72 ODDITIES OF THE LAW. IN an action against a raihvay company for per- sonal injury to a passenger, a medical prac- titioner of eminence, the jury, in assessing the damages, may take into their consideration the loss lie has sustained through his inability to con- tinue a lucrative professional practice.^ At the first trial the jury awarded the plaintiff seven thousand pounds damages. The Queen's Bench Division directed a new trial, on the ground of the inadequacy of the damages, conceiving that the jury had failed to take into account all the heads of damage in respect of which the plaintiff was by law entitled to compensation ; more especially the pecuniary loss which he had sustained through liis inability to practise his profession.^ The decision of the Queen's Bench Division was affirmed by the Court of Appeal.^ At the second trial tlie jury awarded the plaintiff sixteen thousand pounds. ONE of the Seven was wont to say that laws were like cobwebs ; where the small flies were caught, and the great brake tlu'uugh.'* 1 Phillips V. London & South Western Railway Co. 5 C. P. D. 280. 2 4 Q. B. D. 406. 8 5 Q. B. D. 78. * Bacon's Apothegms, No. 181. Cf. "Webster, The Famous History of Sir Thomas Wyat, ed. Dj-ce 1859, p. 201: — " Great men, like great flies, through law's cobwebs break." ODDITIES OF THE LAW. 73 A COUNSEL thought that he would overcome Lord Norbury on the bench. So on one day when Lord Norbury was charging a jury, and the address was interrupted by the braying of a donke}-: " What noise is that?" cried Lord Nor- bury. "'Tis only the echo of the Court, my lord," answered Counsellor Readytongue. Nothhig disconcerted, the judge resumed his address ; but soon the barrister had to interpose with techni- cal objections. While putting them, again the donkey brayed. " One at a time, if you please," said the retaliating joker. MAXIMS are to the intellect what laws are to actions : they do not enlighten, but they guide and direct, and, although themselves blind, are protective. They are like the clew in the labyrinth, or the compass in the night. — Jouhert. THERE is a curious anecdote related of Sir Thomas Moore. He one day invited the judges to dine with him, and after dinner showed tliem the number and nature of the cases in which he had granted injunction to the Courts of Com- mon Law. The judges, upon full debate of the matters, confessed that they could have done no othenvise themselves. 74 ODDITIES OF TUE LAW. THE St. 7 & 8 Geo. IV. cli. 30, § 16 enacts that "If any person shall unlawfully and maliciousl}' kill, maim, or wound miy Ciittle," he shall be guilty of felony. The jnisoner was in- dicted under this statute for killing a gelding. Sir Gregor}' Lewin, for the jDrisoner, moved in arrest of judgment, and contended that tlie indict- ment ought to have averred that the gelding was " cattle." He referred the presiding judge to Dr. Johnson's definition of a gelding, viz., " any animal that is castrated^'''' and to the following well-laiown couplet in Hudibras : — " The sow-gelder blew his horn To geld a cat, but cried reform." On a case reserved, the indictment was held to be sufficient.^ THERE is an amusing story told of Lord Camden, when a barrister, having been fas- tened upon the stocks on the top of a hill, in order to gratify an idle curiosity on the subject. Being left there by the absent-minded friend, who had locked him in, he found it impossible to pro- duce his liberation for the greater part of the day. On his entreating a chance traveller to release him, the man shook his head and })asscd on, re- marking that of course he was not put there for nothing. 1 Clark's Case, 1 LeAvin C. C. 229, 232. ODDITIES OF THE LAW. 75 EEjMORSE is the punishment of crime; repent- ance, its expiation. The former appertains to a tormented conscience ; the hitter, to a soul changed for the better. — Jouhert. A CERTAIN :\Ir. Nathaniel Redding, who had formerly practised at the bar, liad been con- victed before justices of oyer and terminer, by virtue of a special commission, for endeavoring to persuade a witness against the noblemen impris- oned in the Tower to forbear his prosecution of them. For this offence Mr. Redding was set in the pillory, and fined one thousand pounds, with imprisonment till it was paid. The King [Charles II.] remitted his fine ; and when discharged, he came into court, requiring an information, at his suit, to be filed against the commissioners who liad condemned him : " of whom," says the reporter (who was afterwards successively a judge in each of the three superior courts), " my brothers Jones and Dolben were Iavo." The Court declared him incompetent to do so, and caused his words, accusing the two judges of oppression, to be recorded; and then "for having uttered those words, and having also become infamous by stand- ing on the piUory, the gentlemen at tlic bar did pray that his r/oivn mifjhb he pidlcd over his ears; which ivas ordered and executed in co%irt : and he 76 ODDITIES OF THE LAW. was also condemned in court to pay tlie King a fine of five hundred pounds, and be imprisoned till he paid it." ' This case has been presented to the reader because of the singularity of its circumstances. It appears to be also the only instance recorded in our books of misconduct by a member of the bar, judicially cognizable, and punished because of his being such : a fact of itself eloquently significant. MR. JUSTICE MAULE, in summing up a case of libel, and speaking of a defendant who had exhibited a spiteful piety, observed : " One of tliese defendants is, it seems, a minister of religion : of ivliat religion dcjes not a2)pear ; Ijut to judge by liis conduct, it cannot be any form of Christianit}'." THE reason of the law is the life of tlie law ; for though a man can tell the law, yet, if he know not the reason thereof, he shall soon forget his superficial knowledge. — Co. Litt. 183 b. 1 Sir Tlioinas Raymond's Reports, \). STfi, licadoil thus : " Memoranduin, June 18, 1680." " He seemed to complain much," adds Raymond, "for not being allowed a writ of error to reverse his judgment before the commissioners." .On the last day of term his fine and imprisonment were remitted on his petition ; a recognizance, howcA'er, being taken for his good behavior. ODDITIES OF TUB LAW. 77 NIHIL liabeat forum ex scena is one of Bacon's maxims ; but he there refers to fictitious cases brought into the courts in order to deter- mine points of huy.^ Sergeant Ma3'nard, who died in the reign of William III., is said to have liad " the ruling passion strong in death " to such a degree, that he left a will purposely worded so as to cause litigation, in order that sundry questions which had been " moot points " in his lifetime might be settled for the benefit of posterity. LORD COKE says that the ofiicial reporters ceased about the end of the reign of Henry VII. ; and the reason he gives for it is sufficiently quaint : " So as about the end of the reign of Henry VII. it v/as thought by the sages of the law that at that time the Reports of the laAV were sufficient, wherefore it may seem unnecessary and unprofitable to have any more reports of the law." — 3 Rep. xxix. IN the comprehensive words used by the Court in 6 jNiod. 231, the bail have the principal always upon the string, and \n\\y pull it when tliey please, to render him in their (jwn discharge. — 8 Pick. 140. 1 See De Augm. Scient. lib. viii. cap. 3, ai)h. 01. Works, vol. V. p. 107, ed. Ellis and Spedding. 78 ODDITIES OF THE LAW. PUNCH ON SPECIAL PLEADING. INTEODUCTION. 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 law3'ers state in complicated terms the simple cases of their clients, and thus raising from these opposition statements a mass of entanglement which the clients them- selves might call nasty crotchets, but which the lawyers term "nice points." In every subject of dispute with two sides to it, tliere is a riglit 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 i)leading 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 ODDITIES OF THE LAW. 79 properly iinderstood, 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 PEOCEEDIXGS IN AX ACTION, FKOM ITS COILMEXCE- MEXT TO ITS TERMINATION. Actions are divided into Heal, in which there is often much sham ; Personal, in which the per- sonality is frequently indulged in by counsel, at the expense of the witnesses ; and 3Iixed, in which a great deal of pure nonsense sometimes prevails. The Legislature, being at last sensible to the sham- ness 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.^ There are three superior Courts of Common Law, one of their great jjoints 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 1 Butterwortli, the Law PiiMisher in Fleet Street. 80 ODDITIES OF THE LAW. million, or indeed to any but the millionnaire. 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 Com- mon Pleas, which took its title, possibly, from the fact of the lawyers finding the profits sucli as to make them un-Common-ly Pleas'd. The real and mixed actions not yet .ibolished are, first, the Writ of Right of Dower, and second, the Writ of Dower ; both relating to widows : but as widows are formidable persons to go to law against, these actions are seldom used. Tlie 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 su])posed ; 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, ODDITIES OF THE LAW. 81 begins with a summons, in whicli Victoria comes " greeting ; " Avhich means, according to Johnson, " saluting in kindness," " congratuhiting," or " pay- ing comi)liments at a distance : " but, considering the unpleasant nature of a writ at all times, we cannot 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 ajDpearance, the writ invests you, as it were, with a new suit. The action of Covenant lies for breach of cove- nant, 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 news- paper 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 an injury com- mitted 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. Tlie action of Trespass on the Case lies where a party seeks damages for a wrong to which tres- pass will not apply, — where, in fact, a man has 82 ODDITIES OF THE LAW. not been assaulted or luirt in his person, but where he has been hurt in tliat tender part, liis 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, liow- ever 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 Poper}' 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 j^ersonally served on him at home, though the bailiff runs the risk of getting some- times served out, we shall proceed to trial — per- haps of the reader's patience — in a subsequent chapter. CHAPTER II. OF THE DECLAKATIOX. 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 tliese would bring such very small profit to a plaintiff, that they are not allow- ODDITIES OF TUE LAW. 83 able ; and the writ can only be retnrned by the sheriff bringing it back, on a certain day, into the superior court. He then gives a short accoimt, in writing, of tlie 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 tliat the particulars need be set forth. If the defendant does not appear within eight da^'S after the writ has come "greeting," as if it would say " my service to you," tlie 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 a^ipearing against liim at the next step. The pleadings now commence, which were origi- nally delivered orally by the parties themselves in open court, when success miglit depend on lengtli of tongue ; but tlie parties tliemselves l)eing got rid of in the modern practice, and tlie 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. 84 ODDITIES OF THE LAW. Almost all pleas, except those of the simplest kind, must be signed by a banister ; who d(jes not iTSiially 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 su})posed 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 slightl}^ 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 vio- lent bloAvs and strokes on and about divers 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 Avas also kept." If Snooks's dog bites Thomson's pet lamb, ODDITIES OF THE LAW. 85 Snooks declares, " that defendant did wilfully 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 tlie day of , and divers other days, did attack (etc. etc. down to) and kill one hundred sheep and one liundred lambs of the plaintiff, whereby tlie said sheep and the said lambs (it will be remembered there was only one lamb) were greatl}' 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 numer- ous, that the}' fill a volume of seven hundred large pages of Chitty, who is quite chatt}- on this dry subject, so much does he find to say with regard to it. To this able and amusing writer we refer those wlio are curious to know how a sclioolmaster ma}' declare for " work and labor, care, diligence, and attendance of liimself, bis ushers and teach- ers, there performed and bestowed in and about tlie teaching, instructing, boarding, educating, hjdging, flogging, enlightening, thrasliing, wash- ing, whipping, and otherwise soundly im^iroving, divers infants and persons." These, and almost 86 ODDITIES OF Tin-: LAW. 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. MR. JUSTICE MAULE was noted for split- ting straws on the bench, an instance of which is related in connection with special demur- rers. A man was described in a plea as " I. Jones ; " and the pleader, probably not knowing his name, referred in another jiart of the plea to " I " as an initial. The judge said that there was no reason why a man might not be christened " I " as well as Isaac, inasmuch as either could be pronounced alone. The counsel for the plaintiff then objected that the plea admitted that " I " was not a name by describing it as an initial. "Yes," retorted the judge; "but it does not aver that it is not a Ji7ial as well as an initial letter." ^T^ICE-CHANCELLOR BACON thus dis- * coursed of " the sublime mysteries of special pleading," "the days of which are numbered," said he. "For probably in less than a year we shall only think of them as the phantoms of the past fabulous ages." ' 1 Job V. Poltou, 23 "W.R. 590; L.R. 20 Eq. 94. ODDITIES OF THE LAW. 87 IN North's Life of Lord Guilford ^ is this account of the preface to Pollexfen's Reports: "By way of remark to show how faction will get the better of common sense and truth, even in men great pretenders to both, I must add that Pollex- fen, an arguer for Sir Samuel Barnardiston, since the Revolution, published (or fitted for the press) a book of reports, as they are called, consisting chiefly of his factious arguments ; and particularly in this case [Barnardiston v. Soame] ; but most brazenly and untrul}' in his preface, tells how ' he had carried the cause, if the Lord Chief Justice North had not solicited the judges to give a con- trary judgment ' — or to that effect. This book and preface was shown to the then Lord Chief Justice Holt, who did a singular piece of justice to his lordship's memory and honor ; for he sent for the bookseller to answer it before him, and had sup- pressed the book, if he had not promised to change the preface, and leave out that scandal — which was done ; but some copies had escaped before." LORD HALE d(jubts whether voluntarily and maliciously infecting a person of the plague, and so causing his death, would be murder. It is hard to see why. He says tliat " infection is God's arrow." — 1 Hale P. C. 432. 1 Vol. I. !>. 110, cd. 1826. 88 ODDITIES OF THE LAW. DURING the legal al)sence of ]\Ir. (afterwards Lord) Campbell on his matrimonial trip with the ci-devant Miss Scarlett, Mr. Jnstice Abbott observed, Avhen a cause was called on in the Court of King's Bench, " I thought, Mr. Brougham, that Mr. Campbell was in the case." — " Yes, my lord," replied Mr. Brougham, with that sarcastic look peculiarly his own ; " he was, my lord ; but I understand he is ill." — " I am very sorry to hear that," said the judge. " My lord," replied Mr. Brougham, " it is whispered that the cause of my learned friend's absence is the scarlet fever.^'' IT seems that any person is liable to be com- mitted to prison for his lifetime by the Court of Chancery, as guilty of contempt of court, for not j)aying that which he has not to pay, and for not doing other impossibilities. What a number of j)eople might be committed for contempt of the Court of Chancery if we all expressed our feelings ! LORD BACON writes of "inconsistency of judgments : " " If it be that previous decis- ions must be rescinded, at least let them be interred with honor." ^ 1 De Augmentis, Lib. VIII. aph. 95. Judicia enim reddita, si forte rescindi necesse sit, saltern sepeliuntor cum honore. ODDITIES OF THE LAW. 89 ABOUT the year 1803 Lord Eldon, C, directed an issue to be tried in a court of law for the purpose of having the parties themselves examined in respect of certain transactions in a bankruptcy suit. Mr. (afterwards Lord) Erskine was retained for the plaintiff, who had large pecuniary interests at stake, and jNIr. (afterwards Baron) Garrow for the defendant. The plaintiff was called in to the consultation, and, on his entrance, Mr. Erskine sternly addressed to him the following words: " Sir, if 3-0U do not wish to go to hell, you must withdraw your record ! " It was withdrawn forth- with.i y ORD ERSKINE, in a letter to Lord Stowell, -*-^ in 1821, relating to a judgment of the latter in the Court of Admiralty in a case of collision at sea, thus speaks of Lord Kenyon : — " I remember my excellent friend, the late Lord Kenyon, one of the best and ablest judges and the soundest lawyer, in trying a cause at Guildhall, seemed disposed to leave it to the jury whether the party who suffered might not have saved him- self by going on the wrong side of the road, where the witnesses swore that ample room was left. Tlic answer to which is the dangerous uncertainty 1 This aiif^cdote was related to the late Mr. Saiimcl Warren by a friend wlio was |)rofessionally couceriied iu the cause. Warreu Law Studies, II. 417 note, 3d ed. 90 ODDITIES OF THE LAW. of such an attempt, destructive of all the pre- sumptions of conduct founded upon law. Observ- ing that Lord Kenyon was entangled with this distinction, from his observations in the course of the evidence, I said to the jury, in stating the defendant's case : " Gentlemen, if the noble and learned judge, in giving you hereafter his advice and opinion, shall depart from the only principle of safety (unless where collisions are selfish and malicious) and you shall act upon it, I can only say that I shall feel the same confidence in his lordship's general learning and justice, and shall continue to delight, as I always have delighted, in attending his administration of justice ; but I pray God that I may never meet him on the road.'''' Lord Kenyon laughed, and the jury along with him ; and when he came t^^ sum up he abandoned the distinction, saying co tije jury that he believed it to be the best course dare super antiquas vias.^ IN a recent case, the Supreme Court of the United States animadvert upon the practice of introducing children as v/itnesses in an angry family quarrel, Mr. Justice Wayne quaintly say- ing that " it cannot be done without its being con- sidered as a forlorn effort of parental obliquity." ^ 1 Life of Lord Kenj-on p. 345. 2 Toby V. Leonards, 2 "Wallace, 438. ODDITIES OF TUB LAW. 91 NO better statement of the use of Abridgments has been given than that contained in " Studii Legalis Ratio," p. 119, A.D. 1675 : " As for the Abridgments, though they are of great use as Lord Coke saith Compendia sunt dispendia. Abridgments in some cases mistaking the state and truth of the question, and sometimes the right reason and rule of the case, are utterly mistaken. Therefore Satius est petere fontes quam sectari rivulos . it is better and safer sailing in the main sea than in rocky havens. When the whole case is set down at large, with all the circumstances and reasons of either side, the point in question is easily apprehended, and many rules of law col- lected by inference, which out of an abridged case cannot be done." ""VyiHIL quod est inconveniens est licitum is a -L^ legal maxim ; that is, in the language of a learned lawyer, " it is better that damage should be incurred than that injustice should be perpe- trated ; " for so he interprets the literal maxim, " The law will sooner suffer a mischief than an inconvenienced ^ The substance of the matter is that the law will tolerate the existence of a partic- ular, rather than establish a general, injustice : since Salus populi, suprema lex. 1 Davis V. Waddington 7 M. & G. 41 uoto by Sergeant Man- ning. 92 ODDITIES OF THE LAW. MR. JUSTICE COLERIDGE, in the main- tenance of the principle that even to the representatives of the people, the House of Com- mons, the most powerful body in the nation, the calumny of its individuals is forbidden, said: "I soberly ask the warmest advocate for this extend- ed privilege, whether any benefit in a land all the institutions of which seek the genial sunshine of public opinion, and must languish without it, can make up for the injury resulting from this, that it should be capable of being said with truth the House of Commons has become a trader in books, and claims as privilege a legal monopoly in slan- der r 1 THE old notion that a corporation, " having no soul," was incapable of malicious intentions, was recently disregarded as " quaint " and unsub- stantial ; and it was held, that, in case of a wilful and intentional wrong, an action of tort is main- tainable against a corporation where the act complained of is within the purpose of the incor- poration, and it has been done in such a manner as that it would constitute an actionable wrong if done by a private individual.'^ 1 Judgment in Stockdale v. Hansard, 2 P. & D. 218; 9 A. & E. 243. 2 Green v. Loudon General Omnibus Co. 29 L. J. N. S. 13 C. P. ODDITIES OF THE LAW. 93 " rr^HE Common Law jurisdiction," says, in J- glowing terms, an able writer on Equity, " is cribbed and confined in its operation in respect of fraud, and does not penetrate beyond the sur- face ; while Equity extends its relief to meet almost every variety of legal subterfuge in all its windings and ramifications, and tracks a covinous defendant into the profoundest recesses of his lair." * 'TT'^O beguile the Court, or the party ... is an -L artificial deceit, of all others the worst ; for hereby the matter is so tricked, shadowed, and heightened by color of painted art as thereby the judges themselves are abused and beguiled." — 2 Inst. 215. IN the case of The King v. The Warden of the Fleet, 12 Mod. 340, it was objected to a wit- ness that he had been convicted of common bar- ratry, and a record of his conviction was produced, which showed that he had been fined one hundred l)0unds. Holt, C. J., said : " If he had had the Ijandling of liim, he had not escaped the pillor}^ and that he remembered Sergeant Maynard used to say it were better for the country to be rid of one barrator than of twenty liighwaymen." 1 Smith Eq. 159. 94 ODDITIES OF THE LAW. HERE is an instance of Lord Lyndhurst's good nature. When Cleave the newsvender was tried in the Court of Exchequer on a govern- ment information, he conducted his own case, and was treated with much indulgence b}- Lord Lyndhurst the judge. Cleave began his defence by observing that he was afraid he should, l)efore he sat down, give some rather awkward illustra- tions of the truth of the adage that " he who acts as his own counsel has a fool for his client." — "Ah, Mr. Cleave," said his lordship with great pleasantry, " ah, Mr. Cleave, doji't you mind that adage : it was framed b}- the lawyers^ " A CURSORY and tumultory reading," says -lA^ Lord Coke, "doth ever make a confused memor}', a troubled utterance, and an uncertain judgment." ^ The acquisition of learning will serve but little purpose, unless it be permanently and serviceably retained. " What booteth it to read much^'' asks old Philipps, " which is a weari- ness to the flesh; to meditate often, which is a burthen to the mind ; to learn daily with increase of knowledge ; when he is to seek for what he hath learned, and perhaps, then especially, when he hath most need thereof? Without this, our studies are but lost labor." ^ 1 6 Eep. Preface. 2 studii Legalis Ratio, 15, A.D. 1G75. ODDITIES OF THE LAW. 95 IN Lord Campbell's account of tlie Oxford cir- cuit, A.D. 1810, are the following sketches : ^ — " The man of highest rank upon the circuit was Williams, a king's sergeant, the editor of ' Saun- ders/ Although a very learned man, he was a poor advocate, and was never employed except in Grimgrihher cases, depending on the law of real property. In one of these a question arose re- specting the operation of a recovery ; and the ser- geant laid down a position which Mr, Justice Lawrence, a most learned judge, doubted. But instead of reasoning, or citing cases to support it, the learned sergeant only said, ' I assure you, my lord, it is so, — upon my honor it is so ; ' and Law- rence yielded to the authority. " The first in junior business was Abbott, after- wards Chief Justice of England. He was then of no mark or likelihood, or supposed to be capable of being more than a puisne judge, an ap})oint- ment to which he had a kind of prescriptive claim, from having been long ' Chief Devil to the Attor- ney General,' or ' Counsel to the Treasury,' and having drawn the indictments for high treason against Hardy, Tooke, and Thelwall. He was tlie very worst hand at addressing a jury I ever knew to attemi^t it. He was fully aware of this defect, and oidy hazarded the effort with great reluctance in tlie absence of liis leader, or when, 1 Life of Lord Campbell, vol. I. pp. 249-251, 96 ODDITIES OF THE LAW. all the silk gowns being retained on the same side, they were forced to give him a leading brief on the other. I remember one such occasion, on the trial of a great quo warranto cause, when he had spoken near two hours, and was about to sit down, a barrister present, who thought he was all the time, in his usual vocation of junior, making a formal statement of the questions to be tried, pre- paratory to the speech of the leader, exclaimed in my ear, ' What a monstrous time Abbott is in this case in opening the pleadings ! ' But his powers expanded as he was elevated, and he became one of the best judges who ever presided in the Court of King's Bench, not only laying down the law with precision and accuracy, but enforcing his opinion with coj)iousness of illustration, and ele- gance of diction." IF the dignity of the law is not sustained, its sun is set, never to be lighted up again.^ IN Wharton's Case, Yelv. 24, which was an indictment for murder, the jur}^ returned a verdict of not guilty. " Wherefore Popham, Gawd}^, and Fenner fuerunt valde irati, and all the jurors were committed and fined, and bound to their good behavior," etc. 1 Per Lord Erskine in Burdett x. Abbott, 5 Dow, 202. ODDITIES OF THE LAW. 97 THE most trifling and ridiculous civil injuries to members of the House of Commons, even trespasses committed upon their servants, though on occasions unconnected with the discharge of any parliamentary duty, have been repeatedly the subject of inquiry under the head of privilege-. But there is one instance of abuse which goes further than all the rest. A member's servant was committed as the father of a Imstard : the House of Commons held he was entitled to privilege of Parliament, and a discussion ensued whether lie or the constable was to pay the costs. The instance of a citizen being committed by the House of Lords for calling the badge of a swan on a noblemau's waterman a goose, is well known.' " rp^HERE is no calling witnesses without facts ; -L there is no making a defence without inno- cence ; there is no answering evidence which is true." 2 "/^NE book," says Phillips, "well digested, is ^^ better than ten hastily slumbered over." — Studii Legalis Ratio, p. 188. 1 Cited in tlie argument in Stockdale v. Hansard, 2 P. & D. 103. 2 Lord Mansfield, arg. wlien Solicitor General, in the proceed- ings against Lord Lovat for treason, 18 Howell State Trials, 812, A.D. 174G. 98 Oddities of the law. " "TTTHEN a learned man dies," said the Mas- ' ^ ter of the Temjjle, at the grave of the great jurisconsnlt, John Seklen, in 1654, in the Temple Chnrcli, — " when a learned man dies, much learning dies with him ; " adding, " If learn- ing could have kept a man alive, our brother had not died." ^ SAT cito, si sat bene. " Quick enough, if safe enough." This motto was a favorite maxim with Lord Eldon, who says, " In all I have had to do in future life, professional and judicial, I have always felt the effect of this early admonition, on the panels of the vehicle which conveyed me from school, ' Sat cito, si sat bene.' " ^ THE King v. Dangerfield.^ The defend- ant was convicted of publishing a libel, wherein he had accused the King, when Duke of York, that he had hired him to kill the late King Charles, etc. And on P'riday, June 20, 1685, he was brought to the bar, wliere he received this sentence, viz. That he should pay a fine of five hundred pounds; that he should stand twice in 1 Wood Athenae Oxonienses, vol. II. p. 134. Fol. Loudon: 1721. 2 Twiss, Life of Lord Eldon, vol. I. pp. 34, 35, Amer. ed. 8 3 Mod. 68. ODDITIES OF TUE LAW. 99 the pillory, and go about tlio Hall with a paper in his hat signifying his crime ; that on Thursday next he should be whipped from Aldgate to New- gate, and on Saturday following from Newgate to Tyburn ; which sentence was executed accordingly. As he was returning in a coach on Saturday from Tyburn, one Mr. Rcbert Frances, a barrister of Gray's Inn, asked him in a jeering manner whether he had run his heat that day. He replied to him in scurrilous words. Whereupon Mr. Frances run him in the eye with a small cane which he had then in his liand, of which wound the said ]Mr. Dangerfield died on the Monday fol- loMdng. ]Mr. Frances was indicted for this mur- der ; and, upon not guilty pleaded, was tried at the Old Bailey, and found guilty, and executed at Tyburn on Friday, July the 24th, in the same year. ^^^ A NOTEWORTHY observation fell judicially from Lord Eldon : " Upon that occasion Lord Cliief Justice De Grey, in his most luminous judgment said, he never liked Equity so well as when it was like Lmv. The day before, I had hoard Lord jNIansfield say lie never liked Law so well as when it was like E(piity : remarkable sayings of these two great men, which made a strong impres- sion on my memory." ^ 1 Lord Uursley v. Fitzhardinge Berkeley, G Vcs. 200. 100 ODDITIES OF THE LAW. THE following story is told as illustrative of the law's delay. When the first cargo of ice was inii)orted into England from Norway, there not being such an article in the custom-house schedules, application was made to the Tieasury and to the Board of Trade : after some delay it was decided that the ice should be entered as " dry goods ; " but the whole load had melted before the cargo was cleared. TO prevent men thinking and acting for them- selves by restraints on the i)ress is like the exploit of that gallant man who thought to pound up the crows by shutting his park gate.' " T"F even quibbling is at any time justifiable, J- certainly a man may quibble for his life," said Chief Justice Parsons in a capital case.^ "TT7"HEN Lord Eldon introduced his bill for ' » restraining the liberty of the press, a mem- ber moved as an additional clause, that all anony- mous Avorks should have the name of the author printed on the titlepage. 1 Milton, Areopagitica, 11. 11-14. s Commonwealth v. Hardy, 2 Mass. 316. ODDITIES OF THE LAW. 101 rj^HE quaint reason given b}- Bracton, and -L adopted by Lord (^oke, why, by tlie common law, a father cannot inherit real estate by descent from his son, is, that inheritances are heavy, and descend, as it were, by the laws of gravitation, and cannot re-ascend.' BARON SNIGGE, with reference to the dis- tinction between the actions of trespass and trespass on the case, thus defines the duty of the pleader: "An action of trespass lieth generally; but in an action on the case he ought to hit the bird in the eyeT ^ "But notwithstanding, if there is an irregularity in the proceedings of the plaintiff, and the plain- tiff insists upon the strict default of the defendant, as the courts of law say, it is very necessary a person insisting upon the rigor should hit the bird in the eye.''' ^ ^^ LORD BROUGHAiM informs us that it was to stop Sir Samuel Romilly's menaced innovation of subjecting men's real property to the payment of all their debts that the phrase "the wisdom of our ancestors"' was first used by tliat great Equity Judge, Sir William Grant, and by Mr. Canning 1 Co. Litt. 11. 2 151. Comm. 212. 2 Lovisfdi V. Kirk, Ldiin, f!7. 8 Ter Lord ilardwjckc in Floyd v. Nangle, 3 Atk. 5G9. 102 ODDITIES OF THE LAW. "T TOLD Sir Edward Siigden/' writes Lord -L Campbell "(what he had not heard before) Baron Alderson's joke, — -that the collection of his decisions dnring his first chancellorship, which was not much longer than mine, instead of ' Re- ports tempore Sugden,' should be ' Reports momento Sugden.'"^ " rr^HE Court of Chancery, while Lord Eldon -L held the seals, appeared to many a despair- ing suitor no other than John Bunyan's renowned Doubting Castle itself." — Goldsmith Eq. p. 53. BONI judicis est ampliare justitiam. "The true text," said Lord Mansfield, "is 'boni judicis est ampliare justitiam,' not '•jurisdictionem,'' as it has been often cited." ^ IN May 1874, a bill to limit the privilege of franlcing was sent from the Parliament of Ire- land for the royal approbation. It contained a clause, that any member, who from illness or other cause should be unable to write, might authorize another to frank for him by a writing under his hand. 1 Life of Lord CampbeU, vol. II. p. 231. 2 Kex V. Philips, 1 Burr. 304. ODDITIES OF THE LAW. 103 IN the recently published " Life of Lord Camp- bell," vol. ii. pp. 184-187, is the following interesting account of the trial of O'Connell and of the subsequent proceedings in the House of Lords on the writ of error : — " O'Connell, w^ho had been allowed to hold meet- ings for repeal without check for above a twelve- month, was suddenly prosecuted under a mon- ster indictment, containing an infinite number of counts, which charged him with an infinite variety of offences, and sought to make him personally answerable for all that had been done, written, or spoken respecting rejaeal for a long period of time in every part of Ireland, "This course was most unfair and most unwise. The mode in which the prosecution was conducted was still more reprehensible. A packed jury was impanelled, from which all Roman Catholics w^ere excluded ; and the Chief Justice, Pennefather, for the purpose of obtaining a conviction, -was guilty of such gross partiality, that the counsel for the Crown and the jMinisters in England were scan- dalized, and could not say a word in his defence. Upon several of the most important counts the jury found a verdict in words which the Court in Dublin thought amounted to Guilty^ but which were clearly an insufficient finding. On all the other counts, several of which afterwards turned out to be bad in point of law, they found a general 104 ODDITIES OF THE LAW. verdict of Guilty ; and upon the whole record the Court, ' for the offences aforesaid/ passed a lieavy sentence of fine and imprisonment. " Soon after the meeting of Parliament, the Marquis of Normanby brought the subject before the House of Lords by a motion on tlie state of Ireland. . . . The next proceeding connected with OT'onnell's case was a bill I introduced to allow bail in error in cases of misdemeanor. I pointed out the monstrous injustice of hearing the merits of a conviction after the sentence had been carried into execution, introducing the well-known quota- tion : — ' Gnossius hie Rhadamanthus habet durissima regua Castigatque, audiqiie dolos.'^ " But LyYidhurst made a strong speech against the bill, and it was thrown out. In the following session he highly praised it, and it passed. " When the writ of error came to be argued, O'Conuell lying in prison in Dublin, the most intense interest was excited, and the eyes of all Europe were upon us. " The main question was whether, there being in the indictment good counts on wliich there was a regular verdict of Guilty^ the judgment sen- tencing the defendant to a discretionary fine and imprisonment could be supported, there being bad 1 He first iiitlicts the puuishment, and tbeu lie hears the writ of error. ODDITIES OF THE LAW. 105 counts in the indictment, and good counts Avitliout a regular verdict of Guilty upon them, the sen- tence purporting to be pronounced in respect of all the offences mentioned in the indictment. There was likewise a serious objection to the formation of the jury, which was raised by a plea in abatement. " The Crown lawyers contended that we must presume that the Irish judges knew which counts were good, as well as which findings were good and which defective, so that the whole punishment awarded must be taken to be for the offences in the good counts on which there was a regular verdict of Guilty. This certainly would have been a presumption of law entirely against truths for the Irish judges thought all the counts in the indictment good, and particularh' relied upon several which all the English judges thought bad ; and the Irish judges had denied that there was any insufficiency in the findings of the jury. In truth, the supposed presumption was contrary to all principle, and was unsupported by any author- ity ; the saying that ' it is enough if there be one good count in an indictment ' applying to a motion in arrest of judgment before sentence, and not to a writ of error after sentence. " All the English judges, however, except two, were for overruling all the objections. The two dissentients (Parke and Coltman)' thought that 106 ODDITIES OF THE LAW. the jiulgineiit ought to be reversed, as credit must be given to the averment in the record, that the jjimislnnent was awarded for all the supposed offences enumerated in the indictment, whereas some of these were not indictabhs and of others the defendant liad not been hiwfully found guilty. " Of tlie hiw lords in the House two were now Tories, — Lj'ndhurst and Brougham: and three were steady Whigs, — Denman, Cottenham, and Campbell. It did so happen by some strange chance that the two were for affirming the jndg- ment, and the three were for reversing it. We delivered written opinions. I took immense pains with mine, which may be seen in Clark and Finnelly's Reports, vol. XL p. 403.^ " Were the lay lords to vote, although they had not been present at the argument of the case, and were incapable of understanding it ? There were present a large number of ministerialists, who, when the question was put ' that the judgment be reversed,' hallooed out, ' Not content,' and who, if they had divided, would have constituted a large majorit}^ for affirming. But the Government was afraid of the effect to be produced in Ireland by an affirmance so obtained ; and Lord AVharncliffe, the president of the Council, strongly advised that the la}' lords should not vote. I said that the 1 Lord Campliell's admiralilc jutlgmont on this Lranoh of fho law of Criminal Ploadini^ lias always been regarded by the pro- fession as eiuiuently clear and eonelusive. ODDITIES OF THE LAW. 107 Constitution knew no distinction between lay lords and law lords, but that there was in reason a distinction between lords who had heard the case argued, and those who had not, and that, if any of the hitter class should vote, the decision would bring great disgrace upon the administration of justice in that House. The lay lords then all withdrew; and the question being again put, we five law lords alone being in the House, Denman, Cottenham, and Campbell said, Content, and Lynd- hurst and Brougham said. Not content, when, Avith- out a division, Lyndhurst said, ' The contents have it.' So the judgment was reversed, and OX'onnell was liberated.^ " Brougham immediately came uj) to me and said, ' Well, you have made Tindal a peer. The Government will not endure a majority of Radical law lords in the House.' Nevertheless poor Tin- dal died a commoner. " I never gave a more conscientious vote. There was an awkwardness in going against a large majority of the English judges in a political case ; but our judgment was generally approved of in Westminster Hall." ' T.nrd iJroii^liain, as rf!]iort,f'd lij' the .iiithorizcd report cvs of tlif! House of liOrds, spoke of it as " a decision wliicli will {;o forth vvitlioiit authority, and eome hack without respect." 11 CMark & Fiuuclly, ]). 4'j;i. " 11(3 was actually in a furious rage," writes Lord Cauiifhcll, Life of Lord Urougham, p. 531. 108 ODDITIES OF THE LAW. rr^IIE following is one of the head-notes to a -L case reported in the second volume of Paige's Chancery Reports, p. 438 : " A receiver cannot be appohited to deprive the defendant of the possession of his property, ex parte, without giving him an opportunity to be heard in relation to his rights, except in very special cases, as where he is out of the jurisdiction of the Court." LORD CAMPBELL, with the prospect of being appointed Chief Justice of the Queen's Bench, under date October 14, A.D. 1849, writes r^ — " Meanwhile I have again taken to my favorite Co. Litt. It certainly is very pleasant reading. I am more than ever struck by its unmethodical and rambling character. But one must admire the author's stupendous familiarity with all parts of the Law of England : he is uniformly perspicuous, he gives amusing glimpses of history and manners, and his etymologies and other quaint absurdities are as good for a laugh as Joe Miller or Punch. " Littleton's book by itself is a most exquisite production. Its plan is perfect for giving a vS^'s- tematie outline of the law of Real Property in this kingdom in the reign of Edward IV. and all its details are most masterly. But Lord Coke's example ruined juridical composition in England. 1 Life of Lord Campbell, II. pp. 261, 262, ODDITIES OF THE LAW. 109 Blackstone even has not been able to correct our taste ; and the repertory of Common Law learning at present most frequently referred to is the trebly annotated edition of Saunders's Reports, by Ser- geant Williams, jMr. Justice Patteson, and Vaughan Williams. In law-books we are not only greatly excelled by the French and by the Scotch, but even by the Americans. '• October 15. — Having been trying to find a motto for my rings when I am called Sergeant. Nothing better turns up than ' Justitiee tenax.' — Juv. Sat. viii. 25." /^ARDTXAL WOLSEY is, perhaps, the most V^ notable person ever placed in the stocks. It is recorded, that at the time he was incumbent at Lymington, near Yeovil, during the village feast, he had made too free with the glass ; and the con- dition of the minister coming under the notice of Sir Amias Paulet, a strict moralist, he ordered him to be put in the stocks, which was accordingly done. LORD CHIEF JUSTICE GIBBS used to say that he could get authorities in the Year iiooks for any side in any thing," said Lord Lynd- hurst. Lord Chancellor, in tlie course of the argu- ment of a celebrated case in the House of Lords.^ 1 Gray v. The Queen, 11 Clark & rimi.lly, 441. 110 ODDITIES OF THE LAW. nnilE Court of Common Pleas, so late ar, the -^ 5 W. «& M., held that a man might have a property in a negro boy, and might bring an action of trover for him, because negroes are heathens} ''A strange i)rinciple to found a right of property upon I " exclaims Christian.^ LORD BACON, in his paper on the "Amend- ment of the Common Law," wrote : " Great judges are unfit persons to be reporters ; for they have either too- little leisure or too much authority, as may appear well by those two books, whereof that of my Lord Dyer is but a kind of note-book, and those of my Lord Coke hold too much de proprio." ^ " nr ET one devil torment the other," said my -L^ Lord Keeper Egerton to a question asked him, what should become of the brcjker. Both broker and usurer had conspired to cot in a young gentleman. IN a bill for pulling down the old Newgate in Dublin, and rebuilding it on the same spot, it was enacted that the jjrisoners should remain in the old jail till the new one was completed. 1 Ltl. Raym. 147. 2 i b1. Comm. 425 note. * Bacon's Letters and Life, vol. V. p. 86, ed. Spedding. ODDITIES OF THE LAW. Ill 'TTT'E suggest the following terse description of V V *' The two Supream Laws of the Reahn," found in " The Practice Unfolded " of the Hiofh Court of Chancery, p. 53, ed. 1672, to the publish- ers of the next edition of "Bleak House,''— -"The Princes of this Land to the imitation, of that lieavenly representation have appointed two su- preme seats of Government within this Land : the one of Justice, wherein nothing but the strict letter of the Law is observed ; and the other of ^Mercy, which in the rigor of the Law is tempered with the sweetness of Equity, the which is nothing but Mercy qualifying the rigor of Justice." ^ IN some of the cases brought against Lord Bacon implying corruption, the sums of money re- ceived by him were not gifts at all, but money borrowed, and recoverable as debts. Three of these cases gave rise, after Bacon's death, to a curious question. Being claimed by the lenders as debts due to them from the estate, the executors pleaded that they had been decided by the tlouse of Lords to be bribes.^ 1 Tlie object of the science of equity is " the amelioration of the hisv in that wherein by reason of its universality it is de- ficient." Mr. H. B. Wallace's Preface to White and Tudor'.s Lead. Cas. in Equity, quot(Ml in Rawle on Equity, p. 92. 1 Bacon, ^Vork3, XIV. iiW, cd. Ellis & Spedding. 112 ODDITIES OF THE LAW. BY (he Constitution of the Commonwealth of jNIcissachusetts the office of justice of the peace is a judicial office, and must be exercised in })erson ; and a woman, whether married or unmarried, can- not be appointed to such an office.' In England the Court of Common Pleas have recently decided that women are subject to a legal incapacity from voting at the election of mem- bers of Parliament; and that the word "man" in the statute is used in contradistinction to " woman." Mr. Justice Byles observed : " Women for centuries have always been considered legally inca])able of voting for members of Parliament; as much so as of being themselves elected to serve as members. ... In addition to this, we have the unanimous decision of the Scotch judges.^ I trust their unanimous decision and our unanimous decis- ion will forever exorcise and lay tliis ghost of a doubt, which ought never to have made its appear- ance.' " 3 LORD BACON says, that "the nature of Justice distributive is to consider not only de toto, but de tanto, and not to pronounce sen- tence by oiuices and drachms, but by grains." 1 Opinion of the Justices, 107 Mass. G04. But she may he a memhcr of a school coniinittee. It is a local office of an admin- istrative character. Opinion of the Justices, 11.5 Mass. 002. 2 Brown v. Inj^ram, 7 Court of Sess. Cases, -kl sur. 281. 8 Chorltou V. Lings, L. R. 4 C. P. 374, 394, A.D. 18G8. ODDITIES OF TUE LAW. 113 THE Court set aside the verdict as perverse, and granted a new trial, where an Irish jury liad found that a hunter was " necessary "' for a mere boy, avIio, liaviiig bragged at a ball tliat he was a member of the Surrey Stag Hunt, and worth six hundred pounds a year, had induced an Irishman to sell him his horse for a hundred and fifty pounds, had hunted the animal throngh the season, and had then, when payment was de- manded, set up, through his guardian, what was described by an hidignant advocate as " the shabby defence of infancy." ^ THE following is a terse statement of an universal rule of civil and criminal j^lead- ing : " Good matter must be pleaded in good form, in apt time, and in due order, or otherwise great advantage may be lost." — Co. Litt. 303 a. A WRIT of Mandamus is a high prerogative writ wliich lias Ijeen said to be "peculiar to the Court of Queen's Bench, and one of the flow- ers of it," 2 — a definition \vhi(,'li throws veiy little liglit nj)on the qnestion as to the occasions that will r(;cpiire or justify its issue.'^ 1 Skririo v. Gordon, I. R. 9 C. L. 479. 2 Aw(lflf;y V. Joyp, Pophain, 17G. It liaa also been styled festi- uurn rcini'dium 1 Stiuuge, 518. 8 101 Mass. 405. 114 ODDITIES OF THE LAW. IN ancient times in Greece, and in later times at AUkmis, the duty of prosecuting for murder devolved upon the relations of the murdered man ; ' and even in England a last relic of the doctrine that homicide was a private wrong, viz. the Appeal of INIurdcr and Wager of Battle, though long obso- lete, was acknowledged by the law- until abolished by statute 59 Geo. III. ch. 46. EEADERS of the entertaining work, "Bos- welFs Life of Johnson," will remember how the burl}^ old doctor, in answer to a remark made by the celebrated Quaker lady, Mrs. Knowles, said, " jNIadam, we have different modes of restrain- ing evil, — stocks for the men, a ducking-stool for women, and a pound for beasts.'' " A POPULAR judge is a deformed thing ; and -^^^ jjJaudites are fitter for players than for magistrates. Do good to the people, love them, and give them justice. But let it be, as the Psalm saitli, nihil inde expectantes ; looking for nothing, neither praise nor jjrofit."'^ 1 Demosthenes I. 411 note, ed. Whiston. 2 Ashford v. Thornton, 1 B. & A. 405, A.D. 1818. ' 8 Lord Bacon's Speech in the Star Chamber, before the Sum- mer Circuits, A.D. 1G17. Letters and Life, VI. p. 211, ed. Sped- ding. ODDITIES OF THE LAW. 115 DURING all tlie time Coke's Reports were publishing, and for twenty-two j-ears after- wards, no other Reports were printed. " It became all the rest of the lawj'ers to be silent whilst their oracle was speaking." ^ Sir Henry Hobart alone, his immediate successor in the Common Pleas, made a collection, which was published sixteen years after his death, and, though unskilfully edited, was commended by Sir Heneage Finch, who published a corrected edition, as "beautiful even in confusion." THE form of judgment for punishment by the pillory was that the " defendant should be set iji and upon the pillory." We find particulars of a. case which occurred in 1759, when the under- sheriff of Middlesex was fined fifty pounds and imprisoned for two months, by the Court of King's Bench, because, in executing the sentence upon Dr. Shebbeare, who had been convicted of a political libel, he had allowed hini to be attended upon the platform by a servant in livery, holding an umbrella over his head, and to stand Avitliout having his neck and arms confined in the ijiilory. TO the law and to the testimony. — Isaiah viii. 20. 1 Preface to 5 Mod. 116 ODDITIES OF THE LAW. MR, W. II. DAWSON of tliG "Craven Pioneer " tells us the ducking-stool in b3-gone days was used in Craven. He says : " A ducking-pond existed at Kirkby, althougli it has not been used within the memory of any living jjerson. Scolds of both sexes were punished by being ' ducked : ' indeed, in the last observance of the custom, a tailor and his wife were 'ducked' together before the view of a large gathering of people. The husband had applied for his wife to undergo the punishment on account of her quar- relsome nature ; but the magistrate decided that one was not better than the other, and he ordered a joint punishment. Back to back, therefore, husband and wife were chained, and dropped into the cold Avater of the pond. Whether it was in remembrance of tins old observance, or not, can- not be definitely said ; but it is nevertheless a fact, that in East Lancashire, in the Spring of 1880, a man who had committed some violation of morals was forcibly taken by a mob, and dragged several times through a pond until he had expressed peni- tence for his act." TRANSIT in rem judicatam. This maxim has thus been tersely rendered : " The cause of action is changed into matter of record, which is of a higher nature ; and the inferior remedy is merged in the higher." ^ 1 Per Parke, B. iu King v. Hoare, 13 ]M. & W. 504. ODDITIES OF THE LAW. 117 THE following anecdotes of Lord Abinger are taken from his Life pp. 193-195 : — " I have it on Lord Chelmsford's authority, that the Duke of Wellington said of my father: 'When Scarlett is addressing a jury, tliere are thirteen jurymen.' This is both characteristic of the influ- ence he exercised when addressing juries, and of the Duke's terse manner of expressing himself. " Mr. Justice Patteson related therfollowing story of my father's dexterity in the conduct of a cause ; the ends of justice being attained by a theatrical display of incredulity which deceived both Brougham and Parke, the counsel on the other side. ^ly father, with Patteson as junior counsel, was for the defendant. He told Patteson that he would manage to make Brougliam produce in evi- dence a written instrument the withholding of which, on account of the insufficiency of the stamp, was essential for the success of his case. That on Patteson observing, that, even if he could throw Brougham off his guard, he would not be so suc- cessful with Parke, my father answered that he would try. And he then conducted the case with sucli consummate dexterity, pretending to disbe- lieve the existence of the document referred to, tliat Br(tugham and Parke resolved to produce it, not being aware that my father liad any sus])icion of its invalidity. Patteson described the air of extreme surprise and mortification of my father on 118 OBBITIES OF THE LAW. its production by Brougham, with a flourish of trumpets about the ' non-existence of which docu- ment his learned friend had reckoned on so confi- dently.' Patteson went on to say that the way in which my father asked to look at the instrument, and his assumed astonishment at the discovery of the insufficiency of the stamp, were a masterpiece of acting, " On one occasion an action was brought for the abatement of a nuisance, and Mr. Scarlett was employed for the defence. He began his cross- examination of a lady, the plaintiff's witness, by inquiring tenderly about her domestic relations, her children, their illnesses. The lad}^ became confidential, and appeared flattered by the kind interest taken in her. The judge interfered, with a remark about the irrelevancy of this. jNIr. Scar- lett begged to be allowed to proceed ; and on the conclusion of the cross-examination, he said : ' My Lord, that is my case.' He had shown on the witness's testimony that she had brought up a numerous and healthy progeny in the vicinity of the alleged nuisance. The jury, amused as well as convinced, gave a verdict for the defendant. " Sir Walter Scott promised a friend that he would write a book for his benefit. The fiiend died before the promise was fulfilled, and liis executors insisted that Sir Walter should write a book for the benefit of the widow and children of ODDITIES OF THE LAJV. 119 the deceased. This Sir Walter refused to do. Tlie executors sought the advice of Mr. Scarlett, who, having listened to their case, said : ' Let us suppose the position to be reversed : if Sir Walter Scott had died, should you have required his executors to write a book for the benefit of your clients ? ' — ' Oh, no ! ' exclaimed the executors, convinced at once that they had no case against Sir Walter Scott." IN an old case a man stole his wife against her friends' consent, and sued them for her portion in the Court of Chancery, but was refused relief on the ground, as it was quaintly stated by Sir Thomas Egerton, that "he who steals flesh, let him provide bread how he can." BARON BRAMWELL once observed : " Every person of any experience in courts of jus- tice knows that a scintilla of evidence against a railway company is enough to secure a verdict for the plaintiff. I was once in a case before a most aljle judge, the late Chief Justice Jervis, in which I was l)eaten, I dare say rightl}', in consequence of an observation of Ids : ' Nothing is so easy as to be wise after the event.' " ^ 1 Cornman v. Eastern Counties Railway Co. 5 Jur. N. S. C58. 120 ODDITIES OF TUB LAU'. THE head-note to Blackman v. Bainton, 15 C. B. X. S. 432, is quaint : " Twenty-five witnesses and a horse on one side against ten witnesses on the other. Hekl, not such a preponderance of 'inconvenience ' as to induce the Court to brino- back the venue from the place where the cause of action (if any) arose." LORD BAG OX, in the Advancement of Learn- ing, II. 20, § 8,^ approves of condensing argument into brief and acute sentences, and gives these as examples : — PEO VERBIS LEGIS. Xon est interpretatio, sed divinatio, quee recedit a litera. Cum receditur a litera, judex transit m legisla- torem. PRO SEjSTTENTIA LEGIS. Ex omnibus verbis est eliciendus sensus qui interpretatur singula.^ 1 Works, III. p. 413, ed. Ellis & Spo.lding. - For THE Words of the Law. — Interpretation which departs from the letter is not interpretation, but divination. When the letter is departed from, the judge becomes the law- giver. For the Intention of the Law. — The sense according to which each word is to be interpreted must be collected Irom all the words together, ODDITIES OF THE LAW. 121 DAMISELLA. A light damosel or miss. Wil- liam Hoppeshort holds half a yard-land, in Bockhampton, County of Berks, of our Lord the King, b}' the service of keeping for the King six damsels, to ^A•it, whores, at the cost of the King. This was called pimp-tenure.^ EPITAPH on Sir John Strange the report- er : — On Strange, a Lawyer. Here lies an honest lawyer, and that is Strange. IN a case in which it was held that a bond in consideration of past cohabitation is good in law, Mr. Justice Bathurst " pleased the sancti- monious by enriching his judgment" with quota- tions from the Books of Exodus (xxii. 16) and Deuteronomy (xxii. 28, 29) to prove, that '• wher- ever it appears that the mtni is the seducet\ the bond is good." 2 We wonder when* a case will occur in which the question of the validity of the bond, the woman being the seducer, shall be solemnly adjudged and reported. 1 Cunningham Law Diet, sub voce, Daniisella. Jacob Law Diet, sub voce, Pimp-Teuure. Blount, Tenures, pp. 2'J, 30, ed. Hazlilt. - Turner, spinster v. Vaughan, 2 Wils. o'oO. 122 ODDITIES OF THE LA W. " 1~ ET tliis action, *' siiid Lord Elleiiborougli, -L^ when Sir William Seott Avas sued for illegally excommunicating one IJeaurain, whose animosity he had endeavored to stifle by a gift, — " Let this action be a lesson for all men to stand boldl}' forward, — to stand on their characters, — and not, by compromising a present difiiculty, to accumulate imputations on their honor." ' CURIOUS SPECIMEN OF VIVA VOCE PLEAD- INGS IN THE ENGLISH COURTS IN THE REIGN OF EDWARD II.^ ^ I ^HE case was this: Aleyne de Newton brought -'- his writ of annuity against the Abbot of Burton-upon-Trent, and demanded tliirty pounds arrears of an annual rent of forty-live pounds, and lie declared that one John, Abbot of Burton, and predecessor of the present abbot, did, by assent of the convent, grant an annuity to Ale3'ne, payable twice in the year, till he was advanced to a con- venable benefice ; and he exhibited a specialty containing that the abbot, by assent, etc., did grant an annuity to Aleyne de Newton, Clerk, in the above manner, as he had declared. Upon this, Willuby (as counsel for the defendant) prayed judgment of the writ, because of the variance be- 1 Life of Lord Eldoii ]>y Twiss, vol. II. jip. 2.33-2;!5, 2d ed. 2 Beeves Hist. Euj^. Law, vol. II. pp. o47-34l), 3d cd. ODDITIES OF THE LAW. 123 tween tlie writ and tlie specialty ; for in the writ he was named Aleyne de Newton, but in the specialtj Alej'ne de Newton, Clerk, AVard said that it was no variance ; yet Willnby maintained, that as he might have a writ agreeable to the specialty, if he varied in his own purchase of it, tlie writ would be ill ; but he could in this case have a writ agreeable to his specialty. Ergo, etc. And again, as far as appeared by the specialt}', it was made to some one else, and not to the person named in the writ. Stonore, one of the justices, said: "Then you ma}^ plead so if you will ; but the writ is good : " therefore respondeas ouster. " Then," said Willuby, " he cannot demand this annuity, because we say that John, our prede- cessor, on such a day, etc., tendered him the vicarage of, etc., which was void, and in his gift, in the presence of such and such persons, which- vicarage he refused : wherefore we do not inider- stand that lie can any longer demand this an- nuity." SiTAUD. — " We say this vicarage was not worth one hundred shillings: therefore we do not uuderstand it to be a eonvenahle benefice, so as to extinguish an annuity of forty pounds." WlL- LUIJV. — "Then you admit that we tendered you tlie vicarage, and that you refused it?" etc. Shard. — "As to the tender of a l)enefice whieli was not conveiiable, I have no business to make 124 ODDITIES OF THE LAW. any answer at all." Then j\Iutford, one of the justices, asked what sort of benefice they consid- ered as convenable, so as to extinguish the annuity. Shard. — " We mean one of ten marks at least." Then Stonore said: "Do you admit that the vicar- age was not worth one hundred shillings ? " Wil- LUBY. — " We will aver that the vicarage was worth ten marks, prest, etc. ; and he has admitted that one of that value should extinguisli the annuity." Shaiid. — " And we will aver that it was not worth ten marks, prest,'" etc. After this issue, Willuby was desirous of recur- ring back to his first plea, and said : " As you declare that the vicarage was not worth one hun- dred shillings, we will aver that it was worth one hundred shillings," etc. But Stonore interposed, and said : '■' He declares that the vicarage is worth ten marks ; and after that there is nothing to be done, but that the issue should be taken on your declaration or his: now, it seems that it should rather be on yours, for by your plea you make that a convenable benefice Avhich is worth ten marks, and such a declaration you ought to main- tain," etc. WiLLUHY. — " Then, mention of the value came first from him, when he said it was not worth one hundred shillings ; so that it will be sufficient for me to traverse what he had said." But, Stonore pressing him whether he would main- tain his plea, Willuby said he would, and accord- ODDITIES OF THE LAW. 125 ingl}- pleaded that the vicarage was worth ten marks, prest^ etc. et alii, that it was not worth ten marks, prest, etc. and so issue was joined. The pleadings upon the record in the above case must then have stood thus : The defendant said a vicarage had been tendered and refused, and so the annuity should cease, judgment of the action. To this the replication was : The vicarage tendered was not worth ten marks, and so not a convenable benefice to extinguish the annuity: rejoinder, it was worth ten marks : surrejoinder, it was not. This instance will serve to show the manner of pleading viva voce at the bar : every tiling there advanced Avas treated as a matter only in fieri, wliich upon discussion and consideration might be amended, or wholly abandoned, and then other matter resorted to, tift at length the counsel felt himself on such grounds as he could trust. Where lie finally rested his cause, that was the plea which was entered upon the roll, and abideth the judg- ment of an inquest, or of the Court, according us it was u point of law or of fact. rr^IIE Irish statute-book opens characteristically -L with: "An Act that tlie King's officers may travel fi^ sea from one place h) another within the land of Ireland." 126 ODDITIES OF THE LAW. ON the removal of a distinguished counsel from a house in Red Lion Square, an ironmonger became its occupant ; and Erskine wrote the fol- lowing epigram on the change : — " This house, where once a lawyer dwelt, Is now a smith's — alas ! How rapidly the iron age Succeeds the ag-e of brass ! " SYDNEY S:\IITH, doubting the practicability of introducing trial by jury into New South Wales, imagines a few of the excuses that might b3 made by any one summoned as a juror. " I cannot come to serve upon the jury : the waters of the Hawksbury are out, and I have a mile to swim. The kangaroos will break into my corn. The convicts have robbed iwe. 'Sly little boy has been bitten by an ornltliorynchus jjaradoxiis. I have sent a man fifty miles with a sack of flour to buy a pair of breeches for the assizes, and he is not returned." IN the well-known case of Emans v. Turnbull, 2 Johns. 313, Chief Justice Kent delivered the opinion. In a very recent case in Ireland, Chief Justice May, citing this case, says : " The Lord Chancellor Kent in giving judgment," etc.^ 1 Brew V. Hareu, I. 11. 11 C. L. 'il7, in Excb. Cham. A.D. 1877. T ODDITIES OF THE LAW. 127 HE following are specimens of Greek wit : — Philip, in passing sentence on two rogues, ordered one of them to leave JNIacedonia with all speed, and the other to try and catch him. Demonax was once heard to say to a lawyer, "Probably all laws are really useless; for good men do not want laws at all, and bad men are made no better by them." Alcibiades, when about to be tried by his coun- trymen on a capital charge, absconded, remarking that it was absurd, when a suit lay against a man, to seek to get off, when he might as easily get away. Socrates used to say the best form of govern- ment was that in wliich the people obey the rulers, and the rulers obey the laws. It was a saying of Cato the Elder, " Those magistrates who can prevent crime, and do not, in effect encourage it." Cicero, when one Nepos tohl liim he had caused tbe death of more by liis testimony than he had ever saved by his advocacy, replied, "That is because my credit exceeds my eloquence." DOUGLAS JEPtllOLD says, "Truth is like gold : a really wise man makes a little of it go a long way." 128 ODDITIES OF THE LAW. AUTHORITIES are the actual decisions of the courts." ' "The law is made up of decided cases." ^ " Decisions of the Courts of Common Law are at one the best expositors and the surest evidence of the common law itself." ^ " A matter is properly said be adjudged when there can be no appeal." ^ IN a. case in the time of Elizabeth, the plaintiff, for putting in a long replication, was fined ten pounds, and imprisoned, and a hole to be made through the replication, and to go from bar to bar with it hung round his neck.^ IF one be in execution, and if he has no goods, he shall live of the charity of others ; and if others will give him nothing, let him die in the name of God." ^ 1 Pollock, C. B. in Dyer v. Best, a5 L. J. Excli. 107. A chain of authorities Milton calls " a paroxysm of citations." 2 Lord Lyndhurst, L. C. in Lewis v. Bridgman, 2 Clark & Finnelly, 747. 3 Tiudal, C. J. in The Queen v. Millis, 10 Clark & Fiunelly, 657. ^ Jenkins, Cent. Preface. 6 Milward v. Welden, Tothill, 101. 6 Montague, Chief Justice, in Dive v. :Manmngton, 1 Plowd. 68, quoted in M'Laiu v. Ilayne, 1 Brevard, 296. ODDITIES OF THE LAW. 129 IN ^Ir. Golclwiii Smith's sketch of Pitt, it is re- hited that Lord Eldon, at that time Attorney General Sir John Scott, "opened his attempt to pro- cnre the capital conviction of a man who he knew had done nothing worthy of death with a pathetic exordium on his OAvn disinterestedness and virtue. He should have nothing to leave his children but his good name ; and then he wept. The Solicitor General wept with his weeping chief. ' What is the Solicitor weeping for ? ' said one bystander to another. ' He is weeping to think how very little the Attorney will have to leave his children.' " ^ ''VTE^MO ex proprio dole consequitur actionem. -'-^ It is a maxim of law that "a man shall not take advantage of liis own wrong." The principle is as okVas the time of Demosthenes. In the Ora- tion against Leochares, lie says : " It can never be just to regard a wrongful act as evidence for a AN indictment charging that the defendant forcjed a certain writing o})ligatory by which A is hound, is void for its manifest inconsistency and repugnancy. The Court: " Tliat is a wheel in a wheel, and can never be made good."^ 1 The North American Review, vol. CXIV. p. 78. 2 The Kiiiy v. Neck, 2 Show. 472. 130 ODDITIES OF THE LAW. A WRIT de ventre inspiciendo, returnable Tres Mich, on the behalf of P]d\vard As- cough, Esq. and Elizal)etli his wife, Anne Chaplin, spinster, Charles Fitzwilliams, and Frances his wife, co-heirs of Sir John Chaplhi, Iiart., their brother, against dame Elizabeth Chaplin, widow of the said Sir John. Tlie writ was returned that the lady was with child, and a motion made for the safe custody of her until her delivery. It was suggested that the lady's mother was likewise with child, and therefore neither she nor any other woman with child were proper persons to be with her. The Court agreed that such a clause should be inserted in the writ ; and ladies were named on the part of the prosecutors or heiresses to attend the lady during her pregnancy and till her deliver}'^ ; but they must not name any spinster, and the mother was allowed to visit only.^ IN Kelyng's Rej)orts is this passage : " At the Lent Assizes for Winchester, 18 Car. II. the clerk appointed by the bishop to give clergy to the prisoners, being to give it to an old thief, I directed him to deal clearly with me, and not to say Ie[/it in case he could not read; and thereupon he delivered the book to him, and I perceived tlie 1 Ascough V. Lady Chaplin, Cooke 93, 3d ed.; S. C. 2 P. Wms. 591; 2 Eq. Cas. Ab. 780; Mosely, 391, A.D. 1730. ODDITIES OF THE LAW. 131 prisoner never looked upon the book at all, and )'et the bishop's clerk, upon the demand of le(/it^ or non legit, answered legit ; and thereupon I wislied him to consider, and told liim I doubted lie was mistaken, and bid the clerk of the assizes ask him again, legit, or noji legit, and he answered again, sometliing angrily, legit. Then I bid the clerk of the assizes not to record it : and I told the }iarson he was not the judge whether he read or no, but a ministerial officer, to make a true report to the Court. And so I caused the prisoner to be brouglit near, and delivered him the book, and then tlie prisoner confessed he could not read ; whereupon I told tlie parson he had reproached his function, and unpreached more that day than he could preach up again in many days ; and because it was his personal offence and misde- meanor, I fined him five marks, and did not fine the bishnp, as in case ho had failed tf) provide an ordinary." ^ DTSTRETION is a science or understanding to discern between falsity and truth, be- tween wrong and right, between shadows and substance, between equity and colorable glosses and ])retences, and not to do according to Ihcir wills and jirivate affections; for as one saith. Talis discretio discretionem confundit. ^ 1 Kel.51; 82, 3(1 od. ■'' Rookc's Case, 5 Rep. 100 a. 132 ODDITIES OF THE LAW. ONE of tlio most remarkable of the curiosities ill the "books of Reports" is the case of Babcock v. IMontgomery Comity Mut. Ins. Co. 4 N. Y. 326. The case decides that where a buikl- ing was insured generally against loss by fire, and in a separate clause in the policy the insurers were declared liable for fire by lightning, no lial)ility attaches for a loss occasioned by tlie building being struck by lightning, prostrated, and de- stroyed, but no ignition or combustion taking place. The extent and variety of the allusions in the opinion to the subject under discussion are certainly luiiqne. Tlie i)oint was to determine whether "lightning" is "fire," tlic i)laintiff con- tending that destruction by lightning in any man- ner is a destruction by fire. Mr. Justice Ilurllnit alludes to three passages in the Bible, of which the passage from Job i. 16 is the most noteworthy : " The fire of God is fallen from heaven, and hath burned up the sheep and the servants, and con- sumed them." Allusions are made to the doctrines of Seneca, the Stoics, and Epicureans. Quotations are made from ^Milton's " Paradise Lost," and from Byron's " Childe Harold." The scientific treatises are examined; and the names of Descartes, Harris, Dr. Lardner, Franklin, Faraday, and Metcalf, ap- pear in the discussion. A few law cases are cited ; and the judge comes to the conclusion that " Elec- tricity, caloric, or heat may so act, without produ- ODDITIES OF THE LAW. 133 cing fire, as to cause great injuries to property ; but these are not embraced by an insurance against fire alone." IN the great case, Bartonshill Coal Company v. Reid and ]McGuire,' who were both killed in the working of a mine by the negligence (f a fellow-servant employed in the same ci.mmon work, the reporter quaintly observes : " Reid and jMcGuire were both victims of the same accident, which, though melancholy, has settled the law," — doubtless a great satisfaction to the public, if not to Reid and ]McGuire. " rr^IIE last time I opened Statham's Abridg- -L ment,'' says Fuller, " I liglited on this pas- sage : ' ]\Iolendinarius de INIatlock tollavit bis, cb quod ipse audivit Rectorem de eadem villa dicere in Dominica Ram. Palm. Tolle, tolle.' ^ 'Theniiner of Matlock took toll twice, because he lieard the rector of the parisli read on Palm Sunday, Tolle, i.e., crucify him, crucify him.' ^ But if this be the fruit of Latin service, to encourage men in felony, let ours be read in plaiu English." ^ 1 .1 >rarqiiocii, 200, 301 note. Quoted in Gilman v. Eustcru Railroad Corporation, 10 Allon, p. 2-'>7. 2 Statliani, Tit. Toll., last case of tlie Title. 8 Tln! Gospel api)oiiite'I for tlio day. * 'Worthies, Derbyshire, vol. I. p. 250, cd. ISll. 134 ODDITIES OF THE LAW. MR. DUNNING, fifterwards Lord AsLbiirton, was stating tlic law to a jury at Guildhall, when Lord Mansfield interrupted him by saying, "If that be hnv, I "11 go home and burn my books." — "My Lord " replied Dunning, "you had better go home and read them." IF once a man indulges himself in murder, A'ery soon he comes to think little of robbing ; and from robbing he comes next to drinking and Sabbath -breaking, and from that to incivility and procrastination. Once begin upon this down- ward path, you never know where you are to stoj"). Many a man has dated his ruin from some murder or other that perhaps he thought little of at the time. — De Quincey. IN a recent case, in which the indictment " sur- passed in vagueness and uncertainty any pre- cedent to be found in the books," Mr. Justice Fitzgerald observed : " A practice has recently prevailed of shaping indictments in so very gen- eral a form as to cast the smallest burden of proof on the prosecutor, in that they may be all right, but the prosecutor has, in the present instance, finessed too much." ' 1 "White V. The Queen, I. R. 10 C. L. 536. ODDITIES OF THE LAW. 135 T was aeeitled, so earl}' as the reign of Plenry V. tliat a contract imposing a general restraint on trade is void. Indeed, Hull, J. flew into a passion at the very sight of a bond imposing such a condition, and exclaimed, with more fervor than decency, " A ma intent vous purres aver- demurre sur luy que Tobligation est voide eo que le condi- tion est encounter common ley, et per Dieu, si le plaint iff f lilt icy., il irra at prison tanque il ust fait fine au Roy.'''' ^ - ♦ ■ » . " "FT has been said that circumstantial evidence J- ii to be considered as a chain., and each piece cf evidence as a link in the chain ; but that is not so, for then, if any one link broke, the chain ■would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of suf- ficient strength." 2 SCROGGS, Chief Justice. — "As anger Joes not become a judge, so neither doth pity • for one is the mark of a foolish woman, as the other is of a I'nissionate man." ^ ' Year Book, 2 Henry V. 5, 20, cited in 11 Rep 1), ami in the Note to Mitdiel v. Reynolds. 1 Smith L. C. 432, 7th London cd. 2 Pur Pollock, C. B, in Regina v. Exall, 4 Foster & Fiulason, 929. 8 Thy King v. JoLusou, 2 Show. 4. 136 ODDITIES OF THE LAW. SIR WILLIAM BLACKSTONE, wrote that iiccumplislied sclujur, Miilcjiie, us Sir William Scott of the Commons observed to me a few days ago, was c:f;tremely irritable. lie was the only mail, my informant said, he had ever kiuAvn who acknowledged and lamented his bad temper. lie was an accomplished man in very various depart- ments of science, with a store of general knowl- edge. He was particularly fond of architecture, and had written upon that subject. The notes which he gave me on Shakespeare show him to have been a man of excellent taste and accuracy, and a good critic. The total sum which he made by his " Commentaries," including the profits of his Lectures, the sale of the books while he kept the copyright in his own hands, and the final sale of the proprietorship to jMr. Cadell, amounted to fourteen thousand pounds. Probably the book- seller in twenty years from the time of that sale will clear ten thousand pounds b}' his bargain, and the book prove to be an estate to his heirs. Blackstone made six hundred pounds a year by his professorship and Lectures, which, however, he thought it wise to relinquish for the chance of succeeding in Westminster Hall. Not having acquired a facility of expression, nor promptness of applying his law by early practice, he Avas alwa^'s an embarrassed advocate. Tliere Ave re more new trials granted in causes Avhich came ODDITIES OF THE LAW. 187 before liim on circuit than were granted on the decisions of any other judge who sat at Westmin- ster in his time. The reason was, that, being extremely diffident of his opinion, he never sup- ported it with much warmth or pertinacity in the court above, if a new trial was moved for. With the little failings already mentioned, he was one of the finest writers and most profound lawyers that England has produced, considering law merely as a science. He was also a strictly conscientious, honest man. In his " Commentaries " he was much indebted to Hall, and Wood (particularly the latter) for the method and arrangement he has (observed ; but the perspicuit}', the vigor, the luminous statement, the elegant illustration, and the classical grace by which his " Commentaries " are so eminently distinguished, were all his own.' A TEDIOUS preacher had preached the assize sermon before Lord Yelverton. He came down, smiling, to his lordship, after the service, and, expecting congratulations on his effort, asked, ''Well, my lord, how did you like the sermon?" — "Oh I most wonderfully," rc'iilied Yelverton. •• Ii was like the peace of (iod: it passed all under- standing, and, like his mercy, I thought it would have endured forever." 1 Maloniana, from Piior's Life of Muloiie, p. 431. 138 ODDITIES OF THE LAW. THE famous judgment of Saiicho Panza, ac- (juittiiig tlie herdsman charged, with rape, was founded on the ascertained fact that the prosecu- trix successfully resisted the attempt to take her purse, which the accused made by order of the Court. "Sister of mine," said honest Sancho to the forceful but not forced damsel, " liad you sh(Avn the same, or but half as much, courage and resolution in defending 3-our chastity as ycju have shown in defending your money, the strength of Hercules could not have violated you." ^ rr^WO men had been convicted at Chester of -L the most atrocious murder of a magistrate ; but a dispute arose whether the sentence against them was to be carried into effect by the sherifl: of the count}' of Chester, or by the sheriffs of the city of Chester. All the functionaries refusing to act, years might cla})se before this dispute could be legally determined ; and till then the murderers could not be made to expiate their offence under the sentence originally pronounced against them. There was a great outcry by reason of the law being thus defeated. Lord Campbell, then Attor- ney General, boldly brought the convicts to the bar of the King's Bench, and prayed that execu- 1 Don Quixote, part 2, book 3, ch. 1-3, quoted iu 1 Taylor Ev. § 215, 7tb ed. ODDITIES OF THE LAW. 139 tion should be awarded against them by the judges of that court. After a demurrer and loug argu- ment, they were ordered to be executed by the marshal of the King's Bench, at Saint Thomas-a- Waterings in the borough of Southwark, aided by the sheriff of Surrey, — a form of proceeding wliich liad not been resorted to for many ages. The execution took place accordingly, amidst an im- mense assemblage, not only from the metropolis, but from remote parts of the kingdom.^ AT a club dinner of artists a barrister present, liaving liis health drunk in connection with the law, began an embarrassed answer by saying that he did not see how the law could be con- sidered one of the arts. Jerrold quickly jerked in the word black, and sent the company into con- vulsions. Li^OR m.odern law, Sergeant Hill had supreme -L contempt; and I have heard him observe that the greatest service that could be rendered the country would be to repeal all the statutes, and burn all tlic Reports which were of a later date; than tlie Revolution.^ 1 Rex V. fiarside and ^Sloslcy, 2 A. & E. 2GG. Lilc of Lord Caiiipljell, vol. II. pp. 58, 50. 8 Rcniilly, Memoirs, vol. I. p. 72. 140 ODDITIES OF THE LAW. IN the case of Dolan v. Kavanagli, I. R. 10 C. L. 1G6, the defendant was convicted for having ex- posed goods for sale outside Ids shop in a street in the city ; but the place Avhere they were so exposed was part of the premises of the defendant, over whicli the public had no right to pass. It was held that the defendant was guilty of an offence within the St. 5 Vict. ch. 24, § 17. The following is the judgment of Dowse, B. : — " In this case the facts are beyond dispute. A private dwelling-house has been converted into a shop. The area has been covered over, and the iron railings next the street removed ; the railing at right angles to the house has been left stand- ing. On this covered area, flagfo-ed over and raised a little above the footpath proper, goods have been exposed for sale. The police, who are afflicted with fits of periodical activity, have sum- moned the defendant for an offence under the 5 Vict. ch. 24, § 17. That section in effect enacts that any person, mIio in an}'- street or public j)lace exposes for sale any thing on the outride of his house or shop, shall be subject to the penalty men- tioned in tliis section. Can any one doiibt tliat the place wdiere these goods were exposed for sale w'as in a street? It is said that the covered area formed no portion of the footpath, and was never dedicated to the use of the public ; that it v/as in fact part of the defendant's premises. ODDITIES OF THE LAW. 141 That may he ; it is not the less in a street on that account. In one sense the street means the road- way and footpath ; in another sense it has a more extended meaning. The house itself is in Talbot Street. The defendant lives in that street, yet he does not take up his abode in the roadway or on the footpath. Giving a reasonable construction to this statute, no one can doubt that these goods were exposed for sale in a street. If the steps of a hall-door are in the street, this place is in the street ; and in my opinion it would be an abuse of terms to use the word ' street ' in a sense that would exclude the flagging in front of a house from the operation of the section. It is possible to suggest cases where the flagging in front of a house would not be in a street, though the house itself may face a public thoroughfare. "When these cases come before us, we shall be able to deal with them. The only remaining question is, "Were these goods exposed for sale on the outside of the sliop? It is here that the poetical imagina- tion of tlie counsel for the defendant has run riot. He says this place is not on tlie outside of the sliop. "Wliere is it, then? Is it in the inside of tlie shop? lie says it is; and it is so because he buihls an imaginary wall from tlie extreme edge of the covered space, which is all the defendant's own ground, up to tlie sky, and when this wall is built, he says it is the outside wall of the shop, and 142 ODDITIES OF THE LAW. the goods are not tlieii cx})oso(l on tlio outside of the shop. When tliis av;i11 is built of stoue, or I)rick, or timber, or any other substance of a tangi- ble Idnd, there will be no exposure for sale on the street, and that which was outside will become inside ; but, until that is done, I decline to con- struct a non-existent wall, and to construe an Act of PfLrliament by giving to ' airy nothings a local habitation and a name/ When 'Snout, the tinker' represented a wall, lie brought with him some rough-cast and stone ; we are to be more fantastic than the ' Midsummer Night's Dream,' and to build a wall without even the smallest thread of gossTvUier to assist us. If we build the wall, how long is it to endure ? Till this case is over ; and then, in this at least resembling the wall of the poeo, it will say : — ' Tims have I, wall, my part discharged so ; And, being done, thus wall away doth go.' *'I will be no party to this castle-building in the air. If the person convicted here wants an un- siil^stantial wall, let him have unsubstantial hams and bacon exposed for sale. If he gives merely a Br.rmecide feast to his customers congregated on the footpath, he need never fear the penalties con- tained in that very jn-osaic statute entitled An Act for Improving the Dublin Police. I can see no difficulty in this case. If I give loose reins to my ODDITIES OF THE LAW. 143 imagination, I do not know where I can stop. If inclined to be poetical, the last snbject I shall choose for my muse will be any thing connected with the streets of Dublin." J'N the celebrated judgment of Lord Denman in - O'Connell v. The Queen, is this passage : " If it is })0ssible that such a practice as that which hp,s taken place in the present instance should be allowed to pass without a remedy, trial by jury itf'.elf, instead of being a security to persons who ar3 accused, will be a delusion., a mockery^ and a snare." ^ NOBODY was more bitterly witty than Lord Ellenborough. A young lawyer, trembling Avith fear, rose to make liis first speech, and began, "My Lord, my unfortunate client — my herd, my unfortunate client — my Lord — " — "(Jo on, sir, go on," said Lord Ellenborough: "as far as you have proceeded hitherto, the Court is entirely with you." 1 11 Clark & Finnelly, at p. 351. Mr. Justice Denman add-s a curious circtun.stance. "Walking; down with his fathor from the Hoii.se after tlie delivorj- of the judgment, and praisinp:, among otlicr tilings, the celehratcd words, " a mockery, a delnsiDU. and a snare," " Ah," .said Lord Denman, "I am sorry I ii.sed llioso wordii: they were not judicial." — Memoir of Lord Denmau, vol. II. p. 183 note. 144 ODDITIES OF THE LAW. "TTT^ITII respect to children, no precise age is ^ ▼ fixed by law within which they are abso- lutely excluded from giving evidence, on the presumption that tliey have not sufficient under- standing. Neither can any precise rule be laid down respecting the degree of intelligence and knowledge which will render a child a competent witness. In all questions of this kind much must ev3r depend upon the good sense and discretion of the judge. The utter want of discretion in dealing Avitli this subject, wliicli lias sometimes been evinced by the inferior functionaries of the law, is admirabh" ridi- culed by ]Mr. Dickens, in his " Bleak House." A little crossing-sweeper being brought up before a coroner to give evidence on an inquest, the narra- tive thus proceeds : " 'Name Jo. Nothing else that he knows on. . . . Knows a broom's a broom, and knows it's wicked to tell a lie. Don't recollect who told him about the broom, or about the lie, but knows both. Can't exactly say what'U be done to him arter he's dead if he tells a lie to the gentleman, but believes it'll be something very bad to punisli him, and sarve him right ; and so he'll tell the truth.' — 'This won't do, gentle- men,' says the coroner, with a melancholy shake of the head. ' Don't you think you can receive his evidence, sir?' asks an attentive juryman, *Out of the question,' says the coroner. 'You ODDITIES OF THE LAW. 145 have heard tlie boy : cant exactly say won't do, you know. We can't take that in a court of jus- tice, gentlemen. It's terrible depravity. Put the boy aside.' Boy put aside to the great edification of the audience, especially of little Swills the comic vocalist." IF a man robs his fellow-traveller, and is indicted for so doing, the allegation that he Ijccame the companion of his victim with a pre- conceived design to rob him is wholly imma- terial." ^ IN the case of Prohibitions Del Roy, 12 Rep. 64, 65, is this passage : " A controversy of land be- tween parties was heard by the King, and sentence given, which was repealed for this, that it did belong to the common law. Then the King said that ho thought the law was founded upon reason, and tliat lie and others liad reason as well as the Judges: to which it was answered by me, that true it Avas, that God had endowed his Majesty with excellent science, and great endowments of natnre ; but his iMajesty was not learned in the laws of his' realm of England ; and causes which concern the life, or inlieritance, or goods, or fortunes of his subjects, are not to be decided \)\ nalnral reason, but by the artificial reason and judgment of law. 1 Moxori V. Payne, L. It. 8 CL. bbl, per James, L. J. 146 ODDITIES OF THE LAW. whicli law is an act which requires long study and experience, before that a man can attain to the cognizance of it; and that the law was the golden met-wand and measure to try the causes of the subjects; and whicli protected his Majesty in safety and peace : with which the King Avas greatly offended, and said that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub liomine, sed sub Deo et lege. Bract. 74." " TF we see one against whom there is a judgment -L of this court walk in Westminster Hall, we may send our officer to take him up, if the plaintiff desire it, without a writ of execution." — Per Holt, Chief Justice.* IN Nash v. Battersby, 2 Ld. Raym. 98G and G ]\Iod. 80, the plaintiff declared with the addi- tion of gentleman. The defendant pleaded in abatement that the plaintiff was no gentleman. The plaintiff demurred, and it was ill ; for, said the Court, it amounts to a confession that the plaintiff is no gentleman, and then not the person named in the count. He should have replied that he is a gentleman. 1 7 Mod. 52. ODDITIES OF TIlE LA]V. 147 BROUGHAM, speaking of the salary attached to a new judgeship, said it was all moon- sliine. ^ Maybe," said Lord L3'ndhurst ; '• but Fve a notion, that, moonshine or not, you would like to see the first quarter of it." " 'TT'TE easily believe what we wish to be true," » » said Mr. Justice Grier in a charge to a jury. ''We are prone to be satisfied with light proof, or any fallacy, in favor of a preconceived (jpinion, prejudice, or feeling. When we suffer ourselves to be thus tempted, we act as tyrants, not as judges. In the midst of our virtuous indig- nation against crime, we first assume it has been committed, and then seek for arguments to con- firm, not our judgments, but our prejudice. ' Tri- fles light as air' tlien become 'strong as proofs of holy writ.' C'iicumstances which to an unpreju- diced mind are just as com})atible with innocence as guilt, wliich at best could only raise a suspicion, are set down as conclusive evidence of crime. Those who sit in judgment over men's riglits, whether as courts or jurors, should beware of tliis natural weakness to which we are almost all of us subject." ' "Tlic human understanding," wrote Lord IJacon, 1 Turner v. Hand, 3 Wallune, Jr. llli. The entire cliar^'e is particularly liuo. 148 ODDITIES OF THE LAW. "when it lias once adopted an opinion (either as being the received opinion or as l)eiiig agreea- ble to itself), draws all things else to sn})port and agree with it. And though there be a greater immber and weight (>£ instances to be found on the f)thcr side, yet these it either neglects and despises, or else by some distinction sets aside and rejects; prejudging the matter to a great and per- nicious extent in order that the authority of its former conclusions may remain inviolate.'" ^ THE rule which requires a day to be specified, but does not require that day to be proved, appears to rest on much the same foundation as the argument used by Corporal Trim in telling his unfortunate story of the King of Bohemia. " There was a certain king of Bohemia, but in what year of our Lord," — "I would not give a halfpemiy to know," said my Uncle Toby. '' Only, an please your Honor, it snakes a story look the better in the face."" My Uncle Toby's reply, "Leave out the date entirely, Trim, a story passes very well without these niceties, unless one is pretty sure of "em," is founded on good sense. Either allege a date, and prove it, or omit it alto- gether. ^ Novum Organum, Apli. XLVI., Works, vol. IV. p. 56, ed. Ellis <& Spudding. ODDITIES OF THE LAW. 149 IN the case of Musselman v. IMusselman, in the Indiana Reports, vol. 44, p. 107, A.D. 1873, we tind amoncj others the two foUowinir liead- notes : — '' Wliere it does not appear, on appeal, liow smoking in court bj the judge and attorneys pre- vented a party from having a fair trial, and tlie party assigning such conduct as a ground for a new trial does not appear to iiave objected to it, tliere is nothing for the Supreme Court to consider in relation to such conduct." " The assignment as a reason for a new trial, ' that tlie Court erred in sleeping, or sitting with his eyes closed, during the reading of the Avritten evidence on the part of the plaintiff at tlie trial of the cause,' is too vague and indefinite. If the judge were asleep, the party should liave ceased reading, or awakened him ; if he sat merely with his eyes closed, it is presumed lie did so to hear the more acutely." ri^ II ERE have been many eulogies on trial by -L jury ; but this spoken by Sir James Mackin- tosh, in his defence of Jean Peltier, charged with a libel on Bonaparte, First Consul, is [)r()l)al)ly unsurpassed in beauty: "lie now conies before you, perfectly satisfied that an English juiy is the most refreshing j)rosj)e(:t that the eye of accused innocence ever met in a human tribunal." ' 1 Mackiulosli'a Miscellaneous Works, vol. III. p, 215. 160 ODDITIES OF THE LAW. rj^HE rule excluding hearsay evidence, or rather -L the mode in wliich that rule is frequently misunderstood in courts of justice, is amusingly caricatured by Mr. Dickens, in his report of the case of Bardell v. Pickwick : — " ' I believe you are in the service of Mr. Pick- wick, the defendant in this case. Speak up, if you please, Mr. Weller.' " ' I mean to speak up, sir,' replied Sam. ' I am in the service o' that 'ere genl'man, and werry good service it is.' " ' Little to do, and plenty to get, I suppose ? ' said Sergeant Buzfuz with jocularity. "'Oh! quite enough to get, sir, as the soldier said ven they ordered him three hundred and fifty lashes,' replied Sam. " ' You must not tell us tvhat the soldier, or any other man said, sir,' interposed the judge, ' it's not evidence.'' u i Wery good, my lord,' replied Sam." A STORY is told of one Smith who was made a police magistrate. lie was a pompous, stupid man, very attentive to forms, but frequently ignorant how to apply them. The very first day he sat in his public capacity he made a blunder that stuck by him ever after. A man was brought up before \\\n\ for picking pockets. Mr. Smith ODDITIES OF THE LAW. 151 seemed to have reflected deeply, and prepared a speech, of which he was anxious to deliver him- self. He heard the case, tlierefore, with all the solemnity of a trial for murder. He listened with the profoundest attention to all the evidence, and then, taking a three-cornered hat in his hand, he thus addressed the prisoner with the utmost gravity : " Thomas Styles, 3-ou have been found guilty, on the clearest evidence, of the abominable crime of picking pockets. The testimony of the witnesses has been clear and satisfactory, and no doubt of your heinous guilt remains. It now only remains for me to pass the dreadful sentence of the law. The sentence of the Court on you is, that you be taken hence to the prison at Cold Bath Fields; that you be there confined for the space" of one month, be once privately whi})ped bef(jre 3'ou quit it ; and (putting on the hat, and looking at the prisoner with the most sorrowful solemnity) God have mercy on your loretched soul/" "TN the time of Henry VI. it seems not to have -L been a settled point whether an action might t)e maintained against an innkeeper lor refusing a lodging; and it ajipears to have been the better opinion, that the projjcr remedy was to complain to the ruler of the vill, or the constables of the place.' 1 Year Book, '.','.) Ihtu. VI. j.. 18. r> Edw. IV. p. 2. 152 ODDITIES OF THE LAW. "TT'THEN the proceedings have been entered * ^ upon record, the common hiw power of amendment ceases; for the judges at common law were prohibited from alhiwing alterations to be made in any record ; and indeed several of them were, during the reign of Edward the First, se- verely punished for so doing, among Avhom the Lord Chief Justice Hengham was fined, according to some, seven thousand, to otliers, eight hundred, marks, which sum, as we are told by Justice South- cote,^ was expended in building a clock-house at Westminster, with a clock to be heard in the Hall, — a circumstance which, as is observed by Mr. Jus- tice Coleridge, in his admirable edition of Black- stone's Commentaries, explains a dictum of Lord Holt,2 Avhere his lordship, refusing to amend a record, said, " He considered there wanted a clock- house over against the Hall-gate." ^ 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 with the maxim, " Catella realis non j^otest legari ; " nor was he quite relieved when he turned up his Ainsworth, 1 3 Inst. 72. 4 Inst. 255. 2 Anon. G Mod. 1.30. 8 Note to Roliinsou v. lialey, 1 Smith L. C. 248, 2il London ed. ODDITIES OF THE LAW. 163 and found that catella means "a little pnppy-" There was nothing for it, hoM^ever, bi t obedience, so that he had to give cnrrency to the remarkable principle of law that " a genuine little whelp can- not be left in legacy." He also translated "messis sequitur sementem," with a fine simplicity, into " the harvest follows the seedtime ; " 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. — •-•-• — 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 domicil which had found its way into tlie House of Lords, a Scotch lawyer argued that a landed gentleman had shown his determination to abandon his residence in Scot- land by liaving given up his "kane and carriages." It is said that tlie argument went further than he expected, the English law3'ers admitting that it was indeed very strong evidence of an intended change of domicil wlien the laird not only ceased to keep a carriage, but actually divested himself o? liis walking-cane. 154 ODDITIES OF THE LAW. WHEN it was proposed in Parliament to increase the judges' salaries, and the motion was carried Ij}* one hundred and sixty-nine to thirty-nine, Charles Townshend said that " the Book of Judges had .been saved by the Book of Numbers." THIS passage occurs in Sir Vicary Gibbs's' argument in the Banbury Peerage : - — "Age may not be proof of impotency, but it is evidence of it. The probability of the EarFs begetting a child at eighty is very slight, and it is not increased by the appearance of another child two years later. Instances have been adduced of these extraordinary births ; but none have been cited in which a man at eighty-two, having begot- ten a son, had concealed the birth of such son. Would not he seek publication rather than con- cealment? Besides, at the birtli of children in families of distinction, it is generally an object of mucii anxiety to have the event authenticated. Some registry is made of it. None has been found here after the most diligent search. If the regis- ter is lost, the date may always be supplied by the banquets and festivities with which it is contem- poraneous. Why, the whole county would have 1 At thn time Attorney General. 2 Reported in an Appendix to Le Marchaut's Gardner's Peer- age, 427, 428. ODDITIES OF THE LAW. 155 resounded with tlie ringing of bells I Yon wonld have had processions of old men upon the anni- versary of such a prodigy. It would have excited as much surprise as if a mule had been brought to bed ! It reminds me of the lines of Juvenal : — ErgegiLini sauctumque virum si corno, biinembri Hoc monstrum puero, vel mirandis sub aratro riscibus inventis, et fetce compavo mulfe. .S'«/. A7/7 G5. " In no register, in no will, in no document, is there any notice of this wonderful production. And then, not content with one, the miracle must be multiplied. It was not enough that one child should be born to a man at eighty-two : he must have another when he was eighty-four. And Nature consummated her prudigality by lavishing on these children the strength and vigor which she usually denies to the offspring of imbecility." TX a case in the Court of Queen's Bench, a J- jilaiiitiff, as soon as he had discovered the fact, a])plied to set aside a judgment in his own favor, on the ground of a mistake having been made by himself in the amount claime(l and recovered, al- though tlie debt and costs liad been actually i)aid by tlie defendants. The C'ourl, iu furtherance of ju.'itice, allowed liim to do so." 1 CuniKJii V. KeyiioKls, Tj E. & B. p. 301. 15G ODDITIES OF THE LA]V. KELYNG reports a mode of dealing with a prisoner who refused to pk\ad, b}' t\ing his two tluiiiibs together with whipcord, "that the pain of that might compel him to plead."' He says that this was the " constant practice at Newgate." In the particular case reported, the whipcord, with the aid of a parson, produced the desired effect in an hour.i IN delivering the judgment of the Privy Council in a recent case,^ Sir John Taylor Coleridge thus eloquently discoursed of the advantages of the viva voce examination of witnesses: "The most careful notes often fail to convey the evi- dence fully in some of its most important elements, — those for which the open oral examination of the witnesses in presence of prisoner, judge, and jury, is so justly prized. It cannot give the look or manner of the witness, his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration ; it cannot give the manner of the prisoner, when that has been important, upon the statement of any thing of particular moment. It is, in short, or it may be, the dead body of the evidence, without its spirit, which is supplied, when given openly and orally, by the ear and eye of those who receive it." 1 Kel. 27 ; 5i, 3d ed. 2 Efigina v. BeiUana, L. R. 1 V. C. 535; S. C. 10 Cox C. C. G25. ODDITIES OF THE LAW. 157 A PEER was once branded by mistaJce. Sir -^-^ Matthew Hale Avrites : " A great law3'er liath been much bhimed for burning a peer on the hand, that confessed an indictment for manslaughter ; and it was the onl}' error of note that that person erred in to my observation." QUI ha^ret in litera haeret in cortice is a familiar maxim in the law. " The letter killeth, but the spirit maketli alive," is the more forcible expression of Scripture.' A STORY is told of a house seeming irretriev- -'— ^ ably on fire, until the flames, coming in contact with the folio Corpus Juris and the Statutes at Large, were quite unable to get over this joint barrier, and sank defeated. LORD ELLEN P,OROUrTlI showing some impatience at a barrister's speech, the gentle- man ]«aused and said: ''Is it the pleasure of the Court that I should proceed with my statenunit?" — ''Pleasure, sir, has l^een out of the question for a long time ; but you may proceed." 1 P.T Parkr-r, C. J. In Ilmshnw v. Foster, !) I'i«-k. :!17. " TIio letter killeth, but the .spirit ;,'ivi,*tli life." — 2 Coit. iii. G. 158 ODDITIES OF Till-: LA 11'. MR. JUSTICE WELLS, iu cliargiiin- the jury ill a capital case, in defiiiiiig what is a reasonable doubt, once said: "A man might so cultivate a doubt as not to be able to believe any thing ; 3-et such a doubt was not a reasonable one." IN the case of Ryves v. The Attorney General, which attracted so much notice a few years since, where Mrs. Ryves attempted to establish her claim to royal lineage, this occurrence is re- ported: "Dr. Smith then i)roceeded to address the jury for the petitioner, and was beginning to say that ' on his honor he believed his client's case to be wxdl founded,' when the Lord Chief Justice interfered, and peremptorily said he 'could not allow the learned counsel to pledge his honor on his own belief. To do st) were a violation of the rules of the ^jrofession, and a dishonor to counsel.' Dr. Smith apologized." ^ LORD KENYON, on the trial of Hadfield for firing a loaded pistol at the King when sitting in a box at the theatre of Drury Lane, told the jury, that, "if the scales hung any thing like even, it was their duty to throw in a certain jjroportion of mercy." 1 The North American Review, Ajiril, 1871, p. 393. ODDITIES OF THE LAW. 159 ANY over-great penalty besides the acerbity of it, deadens the exci iition of the hxw, — Lord Bacoyi. ^T^HE possession of stolen property recently after -*- the commission of a theft is primcl facie evi- dence tliat the possessor was either the thief or the receiver, according to the other circumstances of the case ; and this presumption, when unex- plained either by direct evidence or by the char- acter and habits of the possessor, or otherwise, is usually regarded by the jury as conclusive. Tliis presum}>tion, which in all cases is one of fact rather than of law, is occasionally so strong as to render lumecessary any direct proof of what is called eiu'pus delicti. Tims, to borrow an a[)t illustration from ^Ir. JiistifC .Maidc, if a man were to go into the Lon- don Docks quite sober, and shortly afterwards were found very drunk, staggering out of one of the cellars in which above a million gallons of wine are stored, "• I think," says the learned judge, — and most persons will probably agree with him, — " that this would be reasonable evidence that the man had stolen some of the wine in the cellar, though no proof were given that any particular vat had licen broached, and that any wine had actually been missed." ' » Ilegiua V. Burton, Dcaraly C. C. 284. 160 ODDITIES OF TUE LAW. IN 1692 William Bradford was tried before two Quaker judges for printing an obnoxious pam- phlet. An amusing incident occurred at the trial. The Prosecution wished to prove that Bradford had printed the pamphlet, — a fact of which there was no legal evidence. He had taken care that no one should see him print it. Mr. Attorney brought in the form, already seized by him, on which the pamphlet had been printed. The dis- covery was received with exultation by the prose- cuting party. Bradford contended rightlj- that the form was no proof against him until they had shown that he had printed from it. Still it was put as proof before the jurj'. Unable, however, to read the matter from the types, Avithout looking at them closely, the foreman began to press the chase along the panel. Of a sudden the quoins got loose, and the mass of type fell through, a pile of indecipherable jnf The evidence had disap- peared by magic. ^ rriHE keeper of the jail in Oxford having in his -L custody one Alice de Droys, condemned for felony, and reprieved for pregnancy, suffered her to go abroad under the guard of a servant. She making her escape, the master was saved by benefit of clergy ; but the servant was hanged.^ 1 Mr. J. W. Wallace's Bradford Address, pp. 56, 57. 2 Kennett's Paroch. Antiq. vol. I. p. 234. ODDITIES OF THE LAIV. 161 IX 1841, relative to tlie trial of Warren Hastings, Lord Macaulay wrote : " The result ceased to be matter of doubt from the thne wlieu the Lords resolved that thej^ would be guided by the rules of evidence which are received in the inferior courts of the realm. Those rules, it is well known, exclude much information wliich would be quite sufficient to determine the conduct of any reasona- ble man in the most important transactions of private life. These rules, at every assizes, save scores of culprits whom judges, jury, and specta- tors firmly believe to be guilty. But when those rules were rigidly applied to offences committed many yeava before, at the distance of many thou- sands of miles, conviction was of course out of the question. AVe do not blame the accused and his counsel for availing themselves of every legal advantage in order to obtain an acquittal ; but it is clear that an acquittal so obtained cannot be pleaded in bar of the judgment of history." nnilE Statute of IVferton, so called because the -■- Parliament or Council sat at the Priory of Merton in Surrey, was passed in the twentieth year of the reign of Henry IIL A.D. 1236. It is a remarkable fact that women were sunniKjncd to this council.^ 1 Spildbury'a Liucolu's lun and Library, pp. 200, '201. 162 ODDITIES OF TUE LAW. IN tlie very lieart of all legal formality and tech- nicality, — the Statutes at Large, — some funny things may be found. The best that now occurs to the memory is not to be brought t.» book, and must be given as a tradition of the time when George III. was King. Its tenor is, that a bill which proposed, as the punishment of an offence, to levy a certain pecuniary penalty, one half thereof to go to his ^lajesty, and the other half to the informer, was altered in committee, in so far that when it appeared in the form of an Act, the punishment was changed to whipping and impris- onment, the destination being left unaltered. ONE day at dinner, Curran sat opposite Lord Norbury, who was famous for his severity as a judge. "Curran," asked Norbury, "is that hung beef before you ? " — " You try it, my Lord," answered Curran, " and it's sure to be." "~\T7^nY, L., your office is as hot as an oven," » ' said a client. " So it ought to be," re- plied the lawyer: '■'• I make my bread hereT A ^ " ight signifieth law, so tort, crooked or wrong, signifieth injury." — 2 Inst. b^. ODDITIES OF THE LAW. 163 HERE is a brief extract from a law-paper, for the full understanding of which it has to be kept in ^^ew that the pleader, beiiig an officer of the law who has been prevented from executing his warrant by threats, is required, 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 ; ■\\liieh 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 anotlier step nearer, FU kick you to hell ; ' which the deponent verily believes he would have done." '• nr ET this be the method of taking down judg- -L-^ ments, and committinor them to writino;," says Lord Bacon. " Record the cases precisely, tlie judgments themselves wctrd for word ; add the reasons which the judges allege f(jr their judg- ments ; do not mix up the authority of cases brought forward as exam})les with the principal case; and omit the perorations of counsel, imlcss they contain something/ very remarkable.'^ ^ ' De Augmcntis, bk. VIII. apb. 74, vol, V. p. 104, ed. Spud- ding. 164 ODDITIES OF THE LAW. ARUNDINES CAMI. This beautifully printed volume consists of Greek and Latin transla- tions, chiefly from the English poets, most of wliich are translated with exquisite skill. Here is a specimen : — LAW AND EQUITY. Law and Equity are two things which God has joined, but which man has put asunder. — Colton. JUS IXJUKIA. Justitiam Xumen junxit cum Lege ; seel eheu I Quas junxit Numen, dissociavit Honio. IN Co>nroNWEALTH V. ]\Ierriam, 14 Pick. 518, wliich was an indictment for adultery, it was held that other instances of improper familiarity between the defendant and the same woman might be given in evidence to corroborate the witness. But such evidence is rejected, the Court say, " where it tends to show a substantial act of adul- tery on a different occasion." ^ AN Irish crier l)eing ordered to clear the court did so by this announcement : " Now, then, all ye blackguards that isn't laivyers^ must lave the coort." 1 Thayer v. Thayer, 101 Mass. 112. ODDITIES OF THE LAW. 165 IX Walpole's " Noble Authors " is recorded an anecdote of the third Earl of Shaftesbury. Attempting to speak on the bill for granting counsel to prisoners in cases of high treason, he was confounded, and for some time could not proceed ; but recovering himself, he said : " Wliat now liappened to him would serve to fortify the arguments for the bill — if he, innocent, and })lead- ing for otliers, was daunted at the augustness of sucli an assembly, what must a man be who should plead before them for his life ? " "TT"niEX Sir Thomas ]More was Lord Chancel- * ' lor, he enjoined a gentleman to pay a good round sum of money unto a poor widow whom he liad oppressed ; and the gentleman said : " Then I do hope your lordship will give me a good long day to i)ay it." — "• You shall have your request," said Sir Thomas. " Monday next is St. Barnabas Day, the longest day in all the year ; pay her then, or else yuu shall kiss the Fleet." ^ nrX 18.S8 tlie vulgar orror lliat an innkeeper might ■^ (h'taiii tlie person of liis guest until i»aynient of his bill, was exploded by the case of Sunbolf v. Alford, 3 M. & W. 248. 1 CauideirH Britanuia, p. 300, cd. 1870. 166 ODDITIES OF THE LAW. IN a case in the Year Books, 22 & 23 Edward I. p. 448, a counsel makes a very apposite Scrip- tural quotation. Metingham, Chief Justice, says: " If my vilein beget a child on my land, which is vileinage, and the child so begotten go out of the limits of my land, and six or seven or more years afterwards return to the same land, and I find him in his own nest at his own hearth, I can take him and tax liim as my vilein ; for the reason that his return brings him to the same condition -as he was in when he went." Heiham of counsel responds : " He fell into the pit which he hath digged." THE defendant charged tlie plaintiff with hav- ing attempted to burn the defendant's house. Wray, C. J., held that the words were actionable, assigning generally as the reason, that "by such speech the plaintiff's good name is impaired." ' AN Irishman swearing the peace against his three sons thus concluded his affidavit : "And this deponent farther saith, that tlic only one of his children wlio showed liim any real filial affection was his youngest son Larry, for he 7iever itruek him when he was dou'n.'^ 1 Edwards' Case, Cro. Eliz. 6. ODDITIES OF THE LAW. 167 OX the trial of Spencer Cowper for murder, A.D. 1699,1 Dr. Crell, a physician, in the course of his testimon}', addressing the Court, Baron Hatsell said : — "Xow, I will give you the opinion of several ancient authors." Baeox Hatsell. — " Tell us your own obser- vations." Dn. Crell. — " It must be reading, as well as a man's own experience, that will make any one a physician ; for without the reading of books of that art, the art itself cannot be attained to ; besides, I humbly conceive that in such a diffi- cult case as this we ought to have a great defer- ence for the reports and opinions of learned men. Neither do I see any reason why I should not quote tlie fathers of my profession in this case as well as you gentlemen of the long robe quote Coke upon Littleton in others." "FN Jenkins's Centuries it is said : " A, a woman -L of twelve years of age, marries B, of thirteen years of age ; A. has issue ; this is a bastard in our law. Yet some write that Solomon begat liehoboam at ten years of age, by computation of time out of the Scriptures." ^ 1 13 Howell State Trials, 1103. 2 CVnt. Vir. Can. 2G. See also Cent. II. Cas. 84, citing Year Book, 1 Henry VI. 3. 168 ODDITIES OF THE LA W. AT a sitting of the Dublin Court of Exchequer, liaron llichards found it necessary to admin- ister a rebuke to Mr. Whiteside, Solicitor General. Mr. Whiteside demanded in a declamatory man- ner, and in an unusual style, that the Court should give its reasons for the course taken in the case, and expressed regret that there was no appeal from its decision. Baron Richards said he had too much reliance upon the gentlemen of the bar to fear that such a style of addressing the Court would be adopted as a precedent. "Mr. Whiteside has referred to the performance of my duty as a commissioner in the Incumbered Estates Court," said the judge ; " he has no right to inflict upon me the odium of his panegyric. I disclaim his comment, and reject his praise." FULBECK gives the following quaint defini- tion of arrest: "Arrestare is, by the authority or warrant of the law, to hinder that either a man or his goods be at his own liberty, until the law be satisfied." " T APPREHEND," said Mr. Justice Cresswell, -^ " that where in our law Reports we find the expression ' public policy,' it is used somewhat in- accurately, instead of ' the policy of the law.' " * 1 4 House of Lord Cases, p. 87. ODDITIES OF THE LAW. 169 IX Lord Campbell's "Lives of the Chancellors '" ^ the following passage occurs in the account of the trial of Sir Thomas JNIore : " The jur}^ biassed as they were, seeing that if they credited all the evidence, there was not the shadow of a case against the prisoner, were about to acquit him ; the judges were in dismay, the Attorney General stood aghast, when Mr, Solicitor, to his eternal disgrace and to the eternal disgrace of the Court who permitted such an outrage on clecenc}'', left the bar, and presented himself as a witness for the Crown. Being sworn, he detailed the confidential conversation he had had with the prisoner in the Tower on the occasion of the removal of the books." IN Gibbon's History of the Decline and Fall of the Roman Empire, ch. 50, it is stated, that, by the law of Mohammed, a woman could not be con- victed of adultery unless on the testimony of four male witnesses ; and his successor, the Caliph Omar, decided, with leference to tliis law, that all cir- cumstantial evidence, liowever ])roximate and con- vincing, was of no avail, and tliat the four male witnesses must liave witnessed the very act in the strictest sen.se of tlie word. This is one extreme. For the opposite the reader is referred to the case of Commonwealth v. Meriiam, 14 Pick. 518. 1 Vol. 11. p. Gl, 4tli ed. quoted in 1 Cush. 520 note. 170 ODDITIES OF THE LAW. r INHERE are very many cases of murder more -L venial than many cases of manslaughter. A slaps B in the face, B stabs him : this is man- slaughter. A shoots at a fowl, intending to steal it ; one grain of shot hits B, who dies of lock- jaw a month after : this is murder. The fowl, in- stead of a hen, is a wild partridge : it is man- slaughter. A, B, C, D, and E are stealing apples; F, the owner of the tree, collars A, who resists, B, C, D, and E throw stones at him, and the stone thrown by D kills him : this is murder in all live. A has reason to think that B has seduced his wife ; runs home, finds some evidence (though not con- clusive evidence) of the fact, and stabs B : this is "manslaughter of the lowest degree." ' IN the " Epistle Dedicatory " to the book en- titled "Some Considerations Toucliing the Style of the Holy Scriptures," by the Honorable Robert Boyle, Esq. 4to, 1 675, we read as follows : " It is not always so despicable a piece of service as may be imagined to endear by particular con- siderations an excellent book to a person capable of discovering and making use of the rare things it contains. To which purpose I might offer you diverse more serious instances, but shall only at 1 Per Watson 13. in Regina v. Davies, Liverpool Summer Assizes, 1857. ODDITIES OF THE LAW. 171 present (a little to divert you) take this occasion to . tell you that Ben Jonson passionately com- plaining to a learned acquaintance of mine that a man of the long robe, whom his wit had raised to great dignities and power, had refused to grant him some very valuable thing he had begged of him, concluded with saying, with an upbraiding tone and gesture to my friend : ' TF/iy, the ungrate- ful ivretch knows very tvell, that, before he came to preferment, I was the man that made him relish Horace.'' Surely this is very characteristic. Boyle's ' learned acquaintance ' was of course Selden, with whom he is known to have been intimately associated, and the man of the long robe ' whose wit had raised him to great dignities and power,' was no doubt Jonson's old ally. Sir Jolm Davies, the Lord Chief Justice." " rr^HE right to a trade-mark is a right closely -L resembling, though not exactly the same as, copyright." — Per Lord Cranworth, 11 H. L. Cas. 533. "^TTHERE the rigor of law borderetli upon » ' injustice, mercy should, if possible, inter- pose in the administratidn."^ 1 Works of T{(;n Jonson, vol. I. p. ix. 0(1. Ciiniiin^jhaiu. 2 Foster, Diac. Horn. 'H'A, and Disc. High Troas. Iii4. 172 ODDITIES OF THE LAW. ^V » / HEX counsel were disputijig sharpl}" in the Dean of St. Asaph's case a piece of evi- dence, one of them saying, "We can prove this to be the prosecutor's letter," and the other retorting, " I beg leave to say you cannot, it is not evidence," Lord Kenyon interposed, with a sort of learned charm, " modus in rebus, there must be an end of things." These bits of classicality, sometimes as inapplicable as if they had been picked up at ran- dom from a dictionar}- of quotations, are amusingly caricatured in that miscellaii}- of legal anecdotes, " Westminster Hall." The learned lord is there represented concluding an elaborate charge of the jur}' with the observation: "Having thus discharged your consciences, gentlemen, you may retire to your homes in peace, with the delightful conscious- ness of having performed your duties well, and may lay j-our heads upon your pillows and say, " Aut Csesar aut nullus.' " On another occasion, his lordship, wishing to illustrate in a strong manner the conclusiveness of some fact, ended by remarking : " It is as plain as the noses on your faces, — ' Latet anguis in herbal'"! " TT often happens," said Chief Justice Chapman J- in a capital trial, " that experts can be found to testify to any theory, hoivever absurd.'' ^ 1 Townsend's Lives of Twelve Judges, vol. I. pp. 78, 79. 2 Trial of Samuel M. Andrews, p. 256. ODDITIES OF THE LAW. 173 IX the case of Tynte v. The Queen, 7 Q. B. 216, judgment was reversed on error, after a lapse of one hundred and sixteen j'ears.^ THE constant publication of cases in support of clear law is excessively tiresome, and irre- sistibly calls to mind the amusing colloquy in " Much Ado About Nothing : " — Don Pedro. — I think this is your daughter. Leonato. — Her mother hath many times told me so. Benedick. — Were you in doubt, sir, that you asked her so often ? 1. This was a writ of error brought to reverse a judgment of outlawry against Philip, Duke of "Wharton. It apiK-ared that the Duke of AVlmrton, by his will, made a few weeks before his death, an3'ed liorse is not a white horse ; neitf)cr is a P3-ed a bhick horse ; \)aia tijen can pyed horses come iinliEr tfjc tooibs of bhack and white horses ? Besi'lies, toljere custom Ijatfj atiapteti a ectiam ticter= mi'nate name to ano one tiling, in all tiebises, feoffments antj grants, that certain name shall be made use of, and no uncertain circumlocutory descriptions shall be allowed ; for eertat'ntn is t^c fat!)er of rffjl^t anti t\)Z niotljer of justt'ee. Le rest del argument jeo ne pouvois oyer, car jeo fui disturb en mon place. 3Le court fuit longement en tioubt' tie c'est matter ; ct apres grant) tieliberatfon eu, 3utigmcnt fui't t(anne pour le pi. nisa causa. Motion in arrest of judgment, t^at tl^e pyed horses were mares ; anlj tljereupon an inspection was jirayed. 3Et sur ceo le court advisare vult. "TTT^IIEN Baron Martin was at the Bar, and » » addressing the Court of Exchequer in an insurance case, he was interrupted by Baron Al- (h.'i'son observing, "Mr. Martin, do you tliink any office would insure your life '/ Keniembcr, yours is a brief existence." 188 ODDITIES OF THE LAW. ALBEIT beginnings of this stndy seem diffi- cult, yet when the professor of the law can dive into the depth, it is delightfull, easie, and without any heavy burthen, so long as he keepe hhnselfe in his own proper element. — Co. Litt. 71a. MR. JUSTICE GOULD was trying a case at York, and when he had proceeded for about two hours, he observed : " Here are only eleven jurymen in the box : where is the twelfth ? " — "Please you, my lord,"' said one of the eleven, " he has gone away about some other business ; hut he Juts left Jus verdict ivith me ! " MR. JUSTICE PUTXA:\I, in considering the subject of the conclusiveness of judgments, remarked, that, if the principle were otherwise, "The law would become a game of frauds, in which the ecreatest roGfue would become the most successful player." ^ — •-•— • — HURRAH ! Hurrali ! " cried a young lawyer who had succeeded to his father's practice, " I've settled that old Chancery suit at last." — " Settled it ! " cried the astonished parent, " why, I gave you that as an annuity for your life." 1 M'Kae v, Mattoou, 13 Pick. 58. ODDITIES OF TUE LAW. 189 " /^ OSTS as between i^artj' and i^art}' are given ^^ by the law as an indemnity to the person entitled to them : they are not imposed as a pun- isliment on the party who pays them, nor given as a bonus to the party who receives them." ' HEXRY FOX, in a liot attack on Lord Chan- cellor Hardwicke, wlio was supposed to have no desire to reform the many abuses of liis office, exclaimed : " Touch but a cobweb in AYestminster Hall, and the old spider of the Law is out upon you with all his vermin at his heels." ^ THE person of Lord Ellesmere is described as remarkable for its venerable gravity, and many went to the Court of Chancery to see him in his '• pomp and circumstance ; " on wliich Fuller quaintly observes, "happy they who had no other business there ! " THE old English lawj-ers occasionally rejected the evidence of women on the ground that they live frail? » P(;r IJraiiiwcll, B., in Harold v. Siiiitli, n If. & N. 385. 2 Tli«; Xortli Aiiiorican Review, July, IK'A, p. 151. 8 Best Ev. § ()4, eitiug Fitzli. Abr. Villeuage, pi. o7. Bro. Abr. Tcstinoigucs, yl. '.iO. 190 ODDITIES OF THE LAW. DISCRETIO est discernere j)er legem quid sit justum. — 4 List. 41.' THE case of State v. Neely, 74 N. C. 425, shows wliat evidence is sufficient in the opinion of the majority of the Court to convict a negro of an assault w^ith attempt to commit a rape. The dissenting opinion of Mr. Justice Rodman is entertaining, and quite as convincing as that of the majority of the Court. MA JUS dignum trahit ad se minus dignum. — 1 Inst. 43 b. An adulterer takes the wife of another man, and new clothes her ; the husband may take with his wife the clothes on her back.^ I T is felony in the sheriff to behead one who was sentenced to be hano-ed.'^ T HE Almanac is part of the law of England.* 1 Quoted by Tindal, C. J., in Regiua v. Darliugtou, G Q. B. 700. 2 Year Book, 11 Henry IV. 4, 31. 3 Year Book, 35 Henry VI. 58. 4 Per Pollock, C. B., in Tutton v. Dark, 5 H. & N. 6i7. 6 Mod. 41. G Mod. 81. ODDITIES OF THE LAW. 191 THE Commentary of Lord Coke upon Littleton will be admired, says Fuller, "by judicious j)osterity -while Fame has a trumpet left her, and any breath to blow therein." BRITTAIN V. KINNAIRD, 1 B. & B. 432. " This case has come to be the locus classicus of Sir J. Richardson." ^ IX a trial at the Newcastle assizes, before Mr. Justice Bayley against a blacksmith for a nuisance, the plaintiff's daughter, a sprightly girl, stated that the sparks came in at the window of her bedroom. Sergeant Hullock, in cross-exami- nation, retorted : " Nay, where so pretty a girl is, don't they oftener come in at the door?" OIR JAMES DYER, in liis Reports, after ^-^ stating the oi)inion of himself and some of liis brothers, concludes, not very urbanely : "But Baldwin was of a contrary ojjinion ; thougli neither I, nor any one else, I believe, understood his refu- tation." 2 1 Per Lord Coleridge, C. J., ia Usill v. Hales, 47 L. J. C. P. 320. a 1 Dyer, 43 a. 192 ODDITIES OF THE LAW. "TTTE will conclude this volume with a single T ▼ Pensee from Joubert : — Only just the right quantum of wit should be put into a book: in conversation, a little excess is allowable. " And for a farewell to our jurispru- dent," in the language of Lord Coke, " I wish unto him the gladsome light of jurisprudence, the love- linesse of temperance, the stabilitie of fortitude, and the soli-ditie of justice." LAW LIBRARY UNIVERSITY OF CALIFORNU L08 ANGELES UNIVERSITY OF CALIFORNIA LIBRARY. Los Angeles This book is DUE on the last date stamped below.