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STRADLING V. STILES.

McKay v. Lees.-Rule nisi for new trial discharged.

Dartnell v. Quarter Sessions of Prescott and Russell-Rule discharged. The Court remarked upon the fact of there being a variety of services required from Clerks of the Peace for which no remuneration is provided.

Fitzgibbon v. The City of Toronto was referred to by the Court, but no judgment could be given as the facts were not sufficiently before the court.

Some of our young friends might like further to discuss the knotty point presented to them in a case taken from an old volume of Reports, entitled,

STRADLING V. STILES.

Le report del case argue en le common banke devant touts les justices de le mesme banke, en le quart. An du raygne de roy Jacques, entre Matthew Stradling, plant. and Peter Stiles, def. en un action propter certos equos coloratos, Anglice, pied horses, post. per le dit Matthew vers le dit Peter.

Sir John Swale, of Swale Hall, in Swale Dale, fast by the river Swale, knt. made his last will and testament; in which, among other bequests, was this, viz. :

"Out of the kind love and respect that I bear unto my much honored and good friend, Mr. Matthew Stradling, gent., I do bequeath unto the said Matthew Stradling, gent., all my black and white horses." The testator had six black horses, six white Horses, and six pied horses.

The debate therefore was, whether or no the said Matthew Stradling should have the said pied horses by virtue of the said bequest.

Atkins apprentice pour le pl. moy semble que le pl. recovera.

And first of all it seemeth expedient to consider what is the nature of horses, and also what is the nature of colors; and so the argument will constantly divide itself in a twofold way; that is to say, the formal part and the substantial part. Horses are the substantial part, or thing bequeathed; black and white the formal or descriptive part.

Horse, in a physical sense, doth import a certain quadruped or four footed animal, which by the apt and regular disposition of certain proper and convenient parts, is adapted, fitted and constituted for the use and need of man. Yea, so necessary and conducive was this animal conceived to be to the behoof of the commonweal, that sundry and divers acts of Parliament have from time to time been made in favor of horses.

1st Edw. VI. Makes the transporting horses out of the kingdom no less a penalty than the forfeiture of forty pounds.

2nd and 3rd Edward VI. Takes from horsedealers the benefit of their clergy.

And the statutes of the 27th and 32nd of Henry VIII. condescend so far as to take care

of their very breed; these our wise ancestors prudently forseeing that they could not better take care of their own posterity than by also taking care of that of their horses.

And of so great esteem are horses in the eye of the common law, that when a knight of the Bath committeth any great and enormous crime, his punishment is to have his spurs chopped off with a cleaver, being, as Master Bracton well observeth, unworthy to ride on a horse.

Littleton, section 315, saith:

"If tenants in common make a lease reserving for rent a horse, they shall have but one assize, because saith the book, the law will not suffer a horse to be severed."

Another argument of what high estimation the law maketh of a horse!

But as the great difference seemeth not to be so much touching the substantial part, horses, let us proceed to the formal or descriptive part, viz., what horses they are that come within this bequest.

Colors are commonly of various kinds and different sorts; of which white and black are the two extremes, and, consequently, comprehend within them all other colors whatso

ever.

By a bequest, therefore, of black and white horses, gray or pied horses may well pass for when two extremes or remotest ends of anything are devised the law, by common intendment, will intend whatsoever is contained between them to be devised too.

But the present case is still stronger, coming not only within the intendment but also the very letter of the words.

By the word black, all the horses that are black are devised; by the word white, are devised those that are white; and by the same word, with the conjunction copulative and, between them, the horses that are black and white, that is to say, pied, are devised also.

Whatever is black and white is pied, and whatever is pied is black and white; ergo, black and white is pied, and, vice versa, pied is black and white.

If therefore black and white horses are devised, pied horses shall pass by such devise; but black and white horses are devised; ergo, the plaintiff shall have pied horses.

Catlyne, Serjeant,

And

Moy semble al' contrary, the plaintiff shall not have the pied horses by intendment; for if by the devise of black and white horses, not only black and white horses, but horses of any color between these two extremes may pass, then not only pied and gray horses, but also red and bay horses would pass likewise, which would be absurd, and against reason. this is another strong argument in law-Nihil, quod est contra rationem, est licitum; for reason is the life of the law, nay the common law is nothing but reason; which is to be understood of artificial perfection and reason gotten by long study, and not of man's natural reason; for nemo mascitur artifex, and legal

LAW IN ROMANCE.

reason est summa ratio; and therefore if all the reason that is dispersed into so many different heads were united into one, he could not make such a law as the law of England; because by many successions of ages it has been tried and retried by grave and learned men! so that the old rule may be verified in it,-Neminem oportet esse legibus sapienti

orem.

As therefore pied horses do not come within the intendment of the bequest, so neither do they within the letter of the words.

A pied horse is not a white horse neither is a pied a black horse; how then can pied horses come under the words of black and white horses?

Besides, where custom hath adapted a certain determinate name to any one thing, in all devises, feofments and grants, that certain name shall be made use of, and no uncertain circumlocutory descriptions shall be allowed; for certainty is the father of right and the mother of justice.

Le reste del argument jeo ne pouvois oyer, car jeo fui disturb en mon place.

Le court fait longement en doubt' de c'est matter, et apres grand deliberation eu.

Judgment fuit donne pour le pl. nisi causa. Motion in arrest of judgment that the pied horses were mares; and thereupon an inspection was prayed.

Et sur ceo le court advisare vult.

SELECTIONS.

LAW IN ROMANCE.

(Continued from p. 94.)

The novel commences with a recital of circumstances which had occurred twenty years prior to the commencement of the tale. Sir| Joseph Mason, knight, dying, had left issue by his first wife,- -one son, Joseph Mason, and three married daughters; also a second wife, a lady forty-five years his junior, and by her one son two years of age. His real estate consisted of Groby Park and Orley Farm, the latter the smaller of the two. His will left both these estates to his eldest son, with moderate provision for his second wife and her boy Lucius. But a codicil was found, by which Orley Farm was bequeathed to Lucius, and £2,000 settled on one Miriam Usbech, the daughter of Jonathan Usbech, an attorney who attended Sir Joseph at the making of the will and codicil. This money was, however, not to come out of the son Joseph's portion, but out of the second wife's. The validity of the codicil was contested. It was in the handwriting of the widow, witnessed by Jonathan Usbech, John Kennedy, a clerk, and Bridget Bolster, a maid-servant. Jonathan Usbech was dead.

The clerk swore to his signature and that of the testator, remembered witnessing a document about that time, and that Usbech was present. The maid remembered signing,

and seeing her master sign, and recollected seeing Usbech have a pen in his hand. She remembered that the matter had been explained at the time. The widow testified that she had drawn up the codicil at Usbech's dictation, in her husband's hearing, because the latter had the gout, and had seen all parties sign it. This is substantially the material testimony. Mr. Trollope, not being a lawyer, also puts into his novel testimony, reminding one of the "red kidney pertaties which was three pounds tuppence happenny" of Mrs. Cluppins, and which would not find its way into "Ten Thousand a Year." For instance, Miriam Usbech, the legatee under the codicil, is called. She is "a simple girl of seventeen," and testifies: "Her father had told her once he hoped Sir Joseph would make provision for her. . . . She had known Sir Joseph all her life, and did not think it unnatural he should provide for her." and so on. Mr. Trollope, however, in spite of his ignorance of the rules of evidence, has the sense not to go into estoppels and base fees. He does not venture out of his depth into abstruse legal technicalities; and the only question in his book is one of fact as to the will.

The will is admitted to probate. The mother and son take possession of the disputed farm, and, twenty years after, the story opens with the recital already given. Here the author takes up the thread, and advances, with his careful, and sometimes tedious minuteness, to the working out of his plot. Miriam Usbech, "the simple girl of seventeen," is now naturally thirty-seven, and has a disagreeable attorney for a husband named Dockwrath, a tenant to Lady Mason. Lucius, assuming charge of his property, expels him from his tenancy; and hence the wrath, which, like that of the son of Peleus, μυοί Αχαιοῖς ἄλγέ ἔθηκεν. Dockwrath, enraged, goes home, searches among his father-in-law's papers, and finds a certain document, takes the cars for Groby Park and lays it before Joseph Mason, the unsuccessful contestant of the will. This is a deed of separation of partnership between Sir Joseph Mason and one Martock, dated July 14, 18—, the same date as the codicil, and witnessed by Jonathan Usbech, Bridget Bolster, and John Kennedy, the same witnesses. Consultation is had with attorneys in London. The witnesses are visited, and they declare that they signed but one paper on that date. It is therefore determined as the best means of gaining the estate, as well as to satisfy the indignant elder son's thirst for revenge, to have Lady Mason indicted for perjury at the former trial. She is brought before a magistrate, and committed to take her trial at the next Assizes.

The character of the accused lady is well drawn. She is represented as a woman of considerable beauty and dignity, of unblemished character, and still retaining in her middle age much of the fascination of her youth. At the previous trial, she had given her testimony with clearness, firmness, and apparent truth. All the county believe her innocent. One of

LAW IN ROMANCE.

its first men, Sir Peregrine Orme, proposes marriage to her after the accusation is made public. No act of her life can be brought forward against her, and sympathy is universal. The barrister retained to defend her, Mr. Furnival, had appeared at the previous trial, and recourse had been at once made to him. Per

haps the art of the master is better displayed

in the delineation of this barrister's character than in any other portion of the book. There is a truth, a nicety, in the lights and shades, which Mr. Warren, with all his wit and experience, has failed to show in Mr. Subtle or Mr. Lynx. Not simply is this effected by the description of his appearance or his attainments, but in the development of his character in the progress of the story; so that, without long quotation, no justice can be done to it here. There is a reality about the whole which makes us almost suspect that Mr. Trollope has copied a living man into his tale. A man of fifty-five, who, up to forty, had attained little success, then won it by hard work; tall, square, with nose straight and long, gray eyes; practised, not in the Old Bailey, but in the Queen's Bench, and especially in the Divorce Courts,-"any cause was sound to him when once he had been feed for his support; and he carried in his countenance his assurance of this soundness, and the assurance of unsoundness in the cause of his opponents." And now begins a lesson of ethics, which Mr. Trollope would thus delicately give the profession. The course of preparation for the trial is minutely described; and though no word is said to the barrister, yet, in spite of the regard, almost lover-like, which he entertains towards his fair client, he begins to feel she is guilty. guilty she is, and has confessed her guilt to Sir Peregrine to prevent the marriage which he has offered her. She has confessed that she has forged the codicil. Yet her counsel knows nothing of this except as surmise. Thus he is led to retain Mr. Chaffanbrass, the great Old Bailey lawyer; and, as attorney, one Mr. Solomon Aram, whose practice is in the criminal courts. Consultations are had; and though neither of those persons express to Mr. Furnival their belief in their client's guilt, he sees it in their faces.

And

"Why," say Mr. Chaffanbrass's thoughts, "why am I retained, unless she is guilty? Innocent people do not need me." Associated with these counsel is a younger man, Mr. Felix Graham, the hero, or walking gentleman, of the book,-the antipodes of Mr. Chaffanbrass, who talks in this wise, with indorsement, we suspect, of the author:

"We try our culprit as we did in the old days of the ordeal. If fuck will carry him through the hot ploughshares, we let him escape, though we know him to be guilty: we give him the advantage of every technicality, and teach him to lie in his own defence, if nature has not sufficiently so taught him already.... We teach him to lie, or rather we lie for him, during the whole ceremony of his trial. We think it merciful to give

him chances of escape, and hunt him as we do a fox, in obedience to certain laws framed for his protection. A guilty man, as such, should have no protection, none which may tend toward concealing his guilt. Till that be ascertained, proclaimed, and made apparent, every man's hand should be against him. . . . . For the protection of best; but for the concealment of his guilt, let no his innocence, let astute and good men work their astute or good man work at all. Let him have his defender, the defender of his possible innocence, not the protector of his probable guilt."

How

This is pretty, but hardly practical. counsel could practically play this extraordinary part; and why, before trial, innocence should be assumed as only possible, and guilt as probable, and not the reverse; and whether this be not the doctrine that every man is "presumed guilty until he is proved innocent," it is not worth while to discuss. It is the text to the lesson of the trial; let us go to that. The three counsel take their places, each with the feelings we have described, and alike ignorant, as a matter of fact, of their client's guilt or innocence. Dockwrath the attorney is called, and describes how he found the deed of separation. His cross-examination by the Old Bailey lawyer, is amusingly described :

"It was pretty to see the meek way in which Mr. Chaffanbrass rose to his work; how gently he smiled; how he fidgeted about a few of the papers, as though he were not at first quite master of the situation; and how he arranged his old wig in a modest, becoming manner, bringing it well forward over his forehead. His voice also was low and soft, so low that it was hardly heard through the whole court; and persons who had come far to listen to him began to be disappointed:" later, he had pushed back his wig a little, and his eyes had begun to glare with an ugly red light.”

Mr. Dockwrath's malice is exhibited: then follow the evidence as to the accused, and her testimony at the former trial, and the proof of the genuine document. Then the two witnesses to the deed are brought to swear they signed but one paper on that day. Kennedy's tion, but the maid Bridget Bolster's testimony testimony is badly broken on cross-examinais stronger. No witnesses are called for the defence. The character of the accused is too well known. It is evidently a close case. The two senior barristers do their work well.

The

junior is disgusted because Mr. Chaffanbrass exposes Dockwrath's motives of malice towards the accused, which he thinks not material to the merits of the case, and because he thinks his client may be guilty. Furnival closes. His address is stated to have occupied three hours. His peroration is given at length. It concludes thus:-

"And now I leave my client's case in your hands. As to the verdict you will give I have no apprehension. You know as well as I do that she has not been guilty of this terrible crime. That you will so pronounce, I do not for a moment doubt. But I do hope that that verdict will be accompanied by some expression on your part which may show to the world at large how great

LAW IN ROMANCE.

has been the wickedness displayed in the accusation.""

And yet," says Mr. Trollope, "yet, as he sat down, he knew that she had been guilty. To his ear her guilt had never been confessed; but yet he knew that it was so, and, knowing that, he had been able to hold them up to the execration of all around him, as though they had committed the worst of crimes from the foulest of motives! And more than this, stranger than this, worse than this, when the legal world knew-as the legal world soon did know-that all this had been so, the legal world found no fault with Mr. Furnival, conceiving he had done his duty by his client in a manner becoming an English barrister and an English gentleman."

Let us be more just to Mr. Furnival and to the legal world. He neither knew the guilt of his client nor the probity of the witnesses. He judged so. He knew nothing about it. Nor is this a fallacy. Supposing him to have been mistaken in this judgment, supposing Lady Mason to have been unjustly accused with the strongest circumstances against her, if this advocate had failed in his duty, what would then, not only his own conscience and the legal world, but Mr. Trollope, have said to him? Let the author write a book, and represent this. But he will not; for he whose aim is to paint men as they are, well knows, that, as the profession which, more than all others, is governed by the rules of logic and common sense, no counterpart for such an advocate can be found. And, without another line of ours, let Samuel Johnson, once reputed a moralist, be heard for a moment:

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"Sir," said Mr. Johnson, a lawyer has no business with the justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be de-cided by the judge. Consider, sir, what is the purpose of courts of justice? It is that every man may have his cause fairly tried by men appointed to try causes. A lawyer is not to tell what he knows to be a lie, he is not to produce what he knows to be a false deed; but he is not to usurp the province of the jury and of the judge and determine what shall be the effect of evidence what shall be the result of legal argument. . . . If lawyers were to undertake no causes till they were sure they were just, a man might be pre: cluded altogether trom a trial of his claim, though, were it judicially examined, it might be found a very just claim."

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And again, on another occasion,

"Boswell: 'But, sir, does not affecting a warmth when you have no warmth, and appearing to be clearly of one opinion when you are, in reality, of another opinion, does not such dissimulation impair one's honesty? Is there not some danger, that a lawyer may put on the same mask in common life, in the intercourse with his friends? Johnson: Why, no, sir. Everybody knows you are paid for affecting warmth for your client; and it is therefore properly no dissimulation: the moment you come from the bar, you resume your usual behaviour.'"+

* Boswell's Johnson, Aug. 15, 1773. † Ib., Sept. 18, 1768.

One word to conclude “Orley Farm." The jury return a verdict of "Not guilty." The estate is voluntarily returned to its rightful owner, and the story ends.

Of the class of novels which we have termed the second, where we are merely brought into court in one or more of the chapters, two of the most entertaining come from the clever pen of Mr. Charles Reade. Mr. Reade seems to have a fondness for law both in reality and fiction; for he not only sues his adverse critics before tribunals of flesh and blood, but he has introduced into two of his later novels, "Very Hard Cash" and "Griffith Gaunt," long and elaborate reports of cases in which the creatures of his fancy take part. These are very striking and animated; though it does not do to look too closely at the rulings of the "shrewd old judges," as he calls them. For instance: a real court would hardly admit, that, in an an action for false imprisonment, where the issue was the insanity of the plaintiff, the dying declaration of the plaintiff's sister to his sanity could be given in evidence, as in "Very Hard Cash;" or that evidence of want of chastity of a female witness was admissible to affect her character for veracity, as in "Griffith Gaunt" (Comm. v. Churchill, 11 Met. 538). Still they are amusing, and full of wit. In "Very Hard Cash," after the author has lashed insane asylums to his heart's content, his hero is represented as bringing his action for false imprisonment. Then follows a dissertation on pleading. The defendant makes three pleas : 1st, not guilty; 2nd, that the plaintiff was insane; 3rd, that physicians so certified and advised the defendant, and that the defendant believed it. Then follows an amusing chapter on what is termed the "Postponement Swindle."

"In theory," says Mr. Reade, "every Englishman has the right to be tried by his peers; but in fact there are five gentlemen in every court, each of whom has, by precedent, the power to refuse him a jury by simply postponing the trial, term after term, until the death of one of the parties, when the action, if a personal one, dies too. And, by a singular anomaly of justice, if a defendant cannot persuade A. or B., judges of the common law court, at what I venture to call

THE POSTPONEMENT SWINDLE, he can actually go to C., D., E., one after another, with his rejected application; and the previous refusal of the judges to delay and baffle justice goes for little or nothing, so that the postponing swindler has five to one in his favour."

So we have a most amusing chapter of medical certificates as to parties and witnesses, especially of one obliging female witness, already nursing her deceased sister's children, sick with scarlatina,-who replied so promptly and obediently to the telegraph; "You must have scar. yourself, and telegraph the same at once, certificate by post."

Finally, Hardie v. Hardie comes on; and the demurrer filed to the third plea is argued by Colt, Q.C., who disapproves thereof because

LAW IN ROMANCE.

The

pleaded by advice of Garrow, Q.C. Still Colt, Q.C., "was briefed with Garrow's views, and delivered them in court with more skill, clearness, and effect than Garrow ever could; then sat down, and whispered over rather contemptuously to Mr. Compton (the attorney), 'That is your argument, I think.' 'And, admirably put,' whispered the attorney in reply: Well, now hear Saunders knock it to pieces. court, however, maltreat Sergeant Saunders, and sustain the demurrer: so the cause is tried on issue joined in the first two pleas. Every one reads Charles Reade: so we all know, that the plaintiff had it all his own way, and a verdict of £3,500. We only quote one amusing instance of examination. Julia, the plaintiff's lady-love, is undergoing cross-examination :

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Saunders-You are warmly interested in the plaintiff's success?

Julia.-Oh, yes, sir.

Saunders.-You are attached to him?
Julia-Ah, that I do!"

And one o'er-true saying of a Yankee witness, that in Westminster Hall, they sell justice "darnation dear, but prime.”

Griffith Gaunt is fresh in all our recollections. Whatever may be the merits of the book, the trial is ingeniously told, and the lady's defence courageously and artistically conducted by herself. She is indeed a second Portia at the law, and has hardly, we think, a counterpart in nature. But Mr. Reade thinks a clever woman can do any thing. "She bristled," he says, "with all those fine arts of defence that nature lends to superior women. She entered on that defence before she spoke a word, for she attacked the prejudices of the court by deportment." Of course, we all know that the stupid sot of a husband whom she was accused of murdering had unhappily not even been drowned, and would be made to turn up at the last moment. Yet the cleverness of the dialogue, and the freshness imparted to it by the ancient phrase in which it is couched, carry one along agreeably to the end.

Among other fictitious scenes that rise before the memory is the life-like trial of Effie Deans in the "Heart of Midlothian," where the great Wizard of the North resumed for a time his wig and gown; and then the court-room in Miss Edgeworth's "Patronage," where the forgery is detected by the discovery that a sixpence placed under the seal of a deed bears a later date than the instrument itself,-which in boyhood we used to think a sign of extraordinary acuteness on the part of the counsel who discovered it, but which has since sunk in our opinion, while our impression of the nonsense of the incident has increased.

But what praise is sufficient for the great suit of Bardell v. Pickwick,-that most laughable but truthful satire on trial by jury! From the commencement of the chapter, Mr. Perker's formula, that "hungry or discontented jurymen always find for the plaintiff," to the conclusion, in the elder Weller's sad apostrophe, "O Sammy, O Sammy! vy worn't there a

alley bi!" it is replete with shrewd observation. The surprise of Mr. Pickwick, that Segeant Buzfuz, who was counsel for the opposite party, dared to presume to tell Mr. Sergeant Snubbin, who was counsel for him, that it was a fine morning; the refusal of Mr. Starleigh to excuse the apothecary from jury duty on the ground that he had no assistant, whereas he ought to be able to afford to hire one in the place of the boy, on whose mind the prevailing impression was that epsom salts meant oxalic acid, and syrup of senna laudanum; Mr. Skimpin's look at Mr. Winkle, on asking his name, "inclining his head on one side to listen with great sharpness, and glancing at the jury meanwhile, as if to imply that he rather expected Mr. Winkle's natural taste for perjury would induce him to give some name which did not belong to him,"-all these have so much of truth and nature mingled with the fun, that we can hardly believe Mr. Dickens has not passed his days in a court-room. Chops and Tomato Sauce," and "Put it down a wee, my Lord: put it down a wee," have become household words; and we have been surprised not to find them in our edition of "Familiar Quotations."

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Mr. Thackeray has never carried us into court, except very briefly, in the painful episode of Barnes Newcombe's brutal treatment of his wife. Such matters do not suit his genius; but he introduces us to counsel in vacation, and gives the profession a fair hit at their unseasonable persistence at law-talk.

"The British lawyers," says Mr. Titmarsh, travelling at Baden, "are all got together; and my friend Lamkin, on his arrival, has been carried off by his brother sergeants, and become once more a lawyer. Well, brother Lamkin,' says old Sir Thomas Minos, with his venerable kind face, you have got your rule, I see.' And they fall into talk about their law matters, at a dinner-table, at the top of Chimborazo."*

It is the Rhenish circuit, and on the stranger's book:

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'Sir Thomas Minos, Lady Minos, nebst Beglei. tung aus England.

Sir John Eachus, mit Familie und Dienerschaft aus England.

Sir Roger Rhadamanthus.

Sergeant Brown and Mrs. Brown aus England,
Sergeant Tomkins, Anglais. Madame Tomkins,
Mesdemoiselles Tomkins."

Both Mr. Dickens and Mr. Thackeray take us into the chambers of the profession, but put the matter rather differently Mr. Thacke ray lets us into Mr. Percy Sibwright's and Mr. Bangham's chambers in their absence. Mr. Sibwright has written things in the nobility's albums. The food of his meditations are "an infantile law library, clad in skins of fresh new-born calf, a tolerably large collection of classical books which he could not read, and English and French works of poetry and fiction which he read a good deal too much.

Kickleburys on the Rhine.

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