Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017860820 QJnmeU IGaui ^rlyonl Sibrarg 7&**4 ^ PLEADER'S GUIDE, A DIDACTIC POEM, CONTAINING THE CONDUCT OF A SUIT AT LAW, WITH THE ARGUMENTS OF COUNSELLOR BOTHER'UM, AND COUNSELLOR BORE'UM, IN AN ACTION BETWIXT JOIIN-A-GULL, AND JOHN-A-GUDGEON, FOR ASSAULT AND BATTERY, BY THE LATE John Surrebutter, Esq., SPECIAL PLEADER, AND BARRISTER AT LAW. AMERICAN EDITION BY" JAMES L. HIGH, WITH NOTES. ALBANY: WILLIAM GOULD & SON. CHICAGO : CAI.LAGIIAN & COCKCROFT. 1S70. A-ttt* Entered according to Act of Congress, in the year 1870, by CALLAGHAN & COCKCROFT, In the office of the Librarian of Congress, ;it Washington. / CHICAGO / j "~~B--,S l Ha- e fe=r-~.. / CHgRCH.CaOSNU ft DSNKElLtr / '■"^sak; — f /MMHWEHB / TZHI IE PLEADER'S GUIDE. BOOK I. PREFACE TO THE AMERICAN EDITION. The first book of the "Pleader's Guide" appeared originally in London, in the year 1796. Its publication was received with such favor at the hands of the pro- fession that it was followed by the second book in 1802. Both of these are comprised in the present edition, and the original text, orthography and arrangement of the work have been preserved throughout. Of the notes to the original edition, some have been omitted, either as containing matter now obsolete, or as being explanatory of matters needing no explanation to professional readers. Others have been retained where their retention seemed necessary for the explanation of certain passages, and still others have been added where the meaning of the text seemed obscure. It is confidently believed that the lawyer will find this little work a pleasant means of relaxation from the graver duties of the profession, and that the general reader will find in its pages sufficient of humor to war- rant a perusal. J. L. H. Chicago, June 1, 1870. SYLLABUS OF MR. SURREBUTTER'S PROFESSIONAL LECTURES. LECTURE I. Mr. Surrebutter Proposes the Plan of his Lectures — His address to the Gentlemen of the Law, particularly to his kinsman, Mr. Job Surrebutter — The Plan of Mr. Job's Education for the Study of the Law Com- mended — The Superior Advantages of his Situation as a Special Pleader's Pupil. LECTURE II. Of the King, and his Prerogative — Of the Civil and Municipal Administration of Public Justice, allegori- cally delineated and compared. LECTURE III. Comparison continued — Of the Civil Law Process — Ex- communication — Serious Address to the Civilians, with certain weighty Interrogatories — Mr. Surrebutter's Personal Superiority as a Common Lawyer — Coun- sellor Bother'um, and Counsellor Bore'um proposed to Mr. Job Surrebutter as models for his imitation. SYLLABUS. LECTURE IV. Of the Common Law process — Invocation to an Infernal Spirit — Of the Original, or Original Writ, and Pro- cess thereon — The High Sheriff and his Executive Power — Of Law Fictions. LECTURE V. Process continued — Of the Writs Latitat — Capias — Quo Minus — Of filing Common Bail — Of Special Bail, or Bail to the Action. LECTURE VI. Of Process against Privileged Persons — Of the Dis- tringas — Its Physical and Chirurgical Qualities. Pro- cess to Outlawry, and the Party's Appearance upon the Capias Utlagatum. LECTURE VII. An Episode, containing authentic Memoirs of Mr. Sur- rebutter's Professional Career. LECTURE VIII. Memoirs continued — Mr. Surrebutter is called to the Bar — Goes the Circuit — The Character of Mr. Joseph Ferret, a Country Attorney — Subject Re- sumed — Instructions to Mr. Job Surrebutter in the Art of Special Pleading — Messrs. John Doe and Richard Roe — Conclusion of the First Book. \\t fllestber's Sjaiir*. BOOK I. LECTURE I. Mr. Surrebutter Proposes the Plan of his Lectures: His Address to the Gentlemen of the Law, particu- larly to his kinsman, Mr. Job Surrebutter — The Plan of Mr. Job's Education for the Study of the Law Commended — The Superior Advantages of his Situa- tion as a Special Pleader's Pupil. Of legal fictions, quirks and glosses, Attorney's gains, and client's losses, Of suits created, lost and won, How to undo, and be undone, Whether by common law or civil A man goes sooner to the devil, Things which few mortals can disclose In verse or comprehend in prose, I sing — do thou, bright Phoebus, deign To shine for once in Chanc'ry lane; And, Clio, if your pipe you'll lend To Mercury, the lawyer's friend, 8 the pleader's guide. That usher of the golden rod, Of gain and eloquence the god, Shall lead my steps with guidance sure, Safe through the palpable obscure, And take my parchments for his labour To cover your harmonious Tabor — "Pindus to wit" — or where you choose, — At Lincoln's Inn, or Arethuse, For bards and lawyers both with ease May place the venue where they please; No matter where an action's laid, Contract or a poem made : Is there a proud o'erbearing wight Who tramples on his neighbour's right, Superior in his own opinion To lawyers, and the law's dominion? Say what compulsive, mode of action Must give the injured satisfaction ; What forms, what fictions must combine To make the parties issue join, And better may enable those Who draw their pleas, or briefs compose, To hold the balance of success With such precision and address, That both the combat may sustain, And neither the advantage gain, But when 'tis o'er and judgment given The scales may prove so just and even, That each may venture to make oath THE PLEADER'S GUIDE. 9 The law's impartial to them both, "When both in rags their folly rue, The victor, and the vanquish'd to. Hear then, and deign to be my readers, Attorneys, barristers, and pleaders, Shrieves, justices, and civil doctors, Surrogates, delegates, and proctors, Grave judges too, with smiles peruse The sallies of a lawyer's muse, A buxom lass, who fain would make Your sober sides with laughter shake ; And, good my lords, be kind and gracious, And though you deem her contumacious, Ne'er to the Fleet, or Bridewell send her, But spare a ludicrous offender, Who longs to make your muscles play, And give your cheeks a holiday. Hear me, ye wits, and critics too, And learned dames in stocking blue, And you, ye bards, my book who dip in, In hopes to catch its author tripping, Some mercy still, and justice shew him, And purchase ere you damn his poem But, chiefly though, dear Job, my friend, My kinsman, to my verse attend; By education form'd to shine Conspicuous in the pleading line, For you, from five years old to twenty, "Were cramm'd with Latin words in plenty, 10 THE PLEADER'S GUIDE. Were bound apprentice to the muses, And forc'd with hard words, blows and bruises, To labour on poetic ground, Dactyls and spondees to confound, And when become in fictions wise, In pagan histories and lies, Were sent to dive at Granta's cells, For truth in dialectic wells, ( There duty bound for four years more To ply the philosophic oar, Points metaphyfical to moot, Chop logic, wrangle, and dispute ; And now, by far the most ambitious Of all the sons of Bergersdicius, Present the law with all the knowledge You gather'd both at school and college, Still bent on adding to your store The graces of a pleader's lore; And, better to improve your taste, Are by your parent's fondness plac'd Among the best, the chosen few, (Blest, if their happiness they knew,) Who for three hundred guineas paid To some great master of the trade, Have, at his rooms, by special,favour, His leave to use their best endeavour By drawing pleas, from nine to four, To earn him twice three hundred more, And, after dinner, may repair THE PLEADER'S GUIDE. 11 To 'foresaid rooms, and then and there Have 'foresaid leave, from five to ten, To draw th' aforesaid pleas again; While thus your blissful hours run on, Till three improving years are gone, Permit me, with these rhymes, awhile, Your leisure moments to beguile, And guide your bold advent'rous ways Safe through that wide and pathless maze Where law and custom, truth and fiction, Craft, justice, strife and contradiction, With every blessing of confusion, Quirk, error, quibble and delusion, Are all, if rightly understood, Conspiring for the public good, Like jarring ministers of state, 'Mid anger, jealousy and hate, In friendly coalition join'd, To harmonize and bless mankind. LECTURE II. Of the King, and his Prerogative — Of the Civil and Municipal administration of public Justice, allegori- cally delineated and compared. The King, o'er ev'ry cause supreme, Be first the prelude of my theme, In him, sans laches or misfeasance, Resides ideal omnipresence ; 12 THE pleader's guide. Him the just rights of empire give For ever in his courts to live; No wasteful lapse of rolling years His just prerogative impairs ; E'en time that's wont so swift to fly, x Stands motionless with majesty; How long soe'er a cause is stay'd By orders, rules and motions made On points by learned counsel mooted, The king can never be nonsuited. From him who feels his subjects woes, The healing stream of justice flows ; JYom him, derives its genuine source, Howe'er polluted in its course, Howe'er unpalatable made, Defil'd, perverted, or delay'd; Blest fount ! from you th' oppress'd and weak Ease to their cares and sorrows seek; Where'er thy genial waters stray, Pride, rapine, fraud, and lawless sway, Forbear the hallow'd ground to tread, While truth by injur'd virtue led With weeping innocence attends, And prostrate o'er thy current bends, To quaff the cup which bounteous heaven To all impartially has given ; But some amidst the legal throng Who think to them thy streams belong, Like those of Galen's learned tribe THE PLEADER'S GUIDE. 13 Who some salubrious stream prescribe, But chemicals and drugs infuse, And all its healing powers abuse, Pain to their tortur'd clients bring, And make thy pure and wholesome spring Foul as the pools which devils mix At Chelt'nham, Harrogate, or Styx ; And law itself so rich is grown In terms and nostrums of its own, That e'en the sages who expound Its truths and mysteries profound, (And none more learn'd, humane and just Have e'er discharg'd their sacred trust) Are forc'd to cite opinions wise, Crok. Car. Crok. Jac, and Crok. Mis. And when some recipe they hit on In Granville, Bracton, Coke, or Britton, Their friendly succour interpose, And hold the patient by the nose, With care administer the portion, Consult, and give him ease by motion, And turn by tedious process quaint, Acute to chronicle complaint. Nor are they wanting who convey Their nostrums in a civil way, Doctors, who fond of consultations, Their patients work with long quotations, And as the nature of the fact is, Torment them with a foreign practice ; 14 THE PLEADER'S GUIDE. Pleas'd in mysterious terms to speak, And cite some fav'rite empirique, Some quack, of note in days of yore, When science from the Latin shore To Albion came, and Tibur's streams First join'd her social waves with Thames, 'Twas then that fam'd academician, That learned monk and politician, He who Vacarius was call'd, The wise eleve of Theobald, And others by their priests escorted, Those books of choice receipts imported, Which at Amalfi lay conceal'd Till by Lothario's arms refeal'd, With these, their fortunes to prefer, They set up shop at Westminister ; But of their practice were debarr'd And fairly kick'd from Palace Yard, Theobald. — Theobald, a Norman abbot, and archbi- shop of Canterbury, in the reign of King Stephen, introduced the civil law into England. Among others of his retinue he brought over with him Roger, surnamed Facan«8,whom he placed in the university of Oxford to teach it to the people of this country. Blac. Com. THE PLEADER'S GUIDE. 15 Till thinking they had no intent To hurt th' establish'*! government, O'er-rule the laws and ride the land With Romish edicts contraband, The nation, proud of the submission Of men of birth and erudition, Gave them a lodging, and in pity Sent them to settle in the city, Begg'd them to gather up their alls, And vend their drugs behind St. Paul's — Provided always that if e'er Said quack, or quacks, should interfere, Or any quack, in word or deed Presume his province to exceed, Or take upon him as a scholar, Prohibitory writ should follow : Blest writ ! by which their fees are stay'd And briefs into our bags convey'd! But of their practice — The extraordinary rise and establishment of the civil law created a jealousy throughout all Europe. King Stephen, issued a per- emptory command preventing its propagation in England, and prohibiting Vacarius from reading lectures at Oxford,. and making it unlawful for any one to keep any of the books of the Roman law by them. Dissert. ad Flet. c. 7. 16 THE PLEADER'S GUIDE. A practice which must needs disgust 'em, For as we thrive, they lose their custom ; But what they lose, or what they gain, Has never yet disturb'd my brain : Let others heed such broils and bustles Who better can command their muscles ; Enough for me, when client stands With purse and parchment in his hands, And claims my favour and protection, To keep my features in subjection; Enough for me, with serious face To puzzle and perplex his case, Then give his purse a gentle squeeze, And taste the flavour of his fees, His sweet retainers, and refreshers, And leave these classical professors Mid barren fields of Roman lore Their dreary journey to explore, And lead through paths of fruitless science Their comfortless bewilder'd clients. the pleader's guide. 17 LECTURE III. Comparison continued — Of the Civil Law process — Ex- communication — Serious Address to the Civilians, with certain weighty interrogatories — Mr. Surrebutter's personal superiority as a common Lawyer — Coun- sellor Bother'um and Counsellor Bore'um proposed to Mr. Job Surrebutter as models for his imitation. Know all to whom these presents come, The pandects of imperial Rome, • And every rescript and opinion Of Theodosius, or Justinian, Of Ulpian, Paulus, or Papinian, With him who studied and profess'd 'em, And had the stomach to digest 'em, Old Gothofredus with a corpus As fat and clumsy as a porpus ; Him too with all his Galimatias, Scaliger's Jewell, sage Cujacius, Theodosius — A Code of Civil Law was composed by order of the Emperor Theodosius the younger, and is still extant in sixteen books, containing a collection of the Imperial Constitutions, from Constantine, to his own time. It received the Imperial sanction in the year 438 A. C. Justinian — Justinian published his Code about a century afterwards in the year 530, and has preserved the rescripts of the preceding Emperors. 18 THE pleader's guide. . Though still they keep their ancient state, Their grandeur, dignity, and weight, And claim respect like veteran beaux, Or mountebanks in tarnish'd clothes, Since Edward from his subjects broke The bondage of the Romon yoke, Are but a vain and empty shade- Without the sanction and the aid. Ulpian, Paulus, &c. — The greatest part of this island was governed wholly by the Civil Law for about 300 years from Claudius to Honorius, during which time some of the most eminent Roman Lawyers, as Ulpian, Paulus, and Papinian, presided in the Courts of Justice of this country. Gothofredus — Dionysius Gothofredus, an eminent civilian, born at Paris in the year 1549, practised at Geneva in the year 1606, published in one large volume the whole body of the Civil Law or Corpus Juris Cwilis. Cujacius — Hie Margarita Civilium &c. Vid. Scali- gerian : the most eminent civilian and most extraordin- ary genius of his time; he was born at Thoulouse in 1520, and taught and practised the Civil Law at Bourges. His works were published at Paris in ten volumes, in the year 1659. Edward — Edward the First put a period to the im- portant struggle between the Laws of England and Rome. Under his discipline the Laws of England ob- tained a complete and decisive victory. Black. Com. the pleader's guide.- 19 The forms, the process, and the mode Coercive of the British Code. How vain's the civil law's Citation, The Libel, oath and Fulmination. Which Surrogate is wont to shed By wholesale on the culprit's head ! — Did not the shrieval arm exempt His brutum fulmen from contempt, And lend a writ to back the curses Which he so piously disperses, With ease respondent might evade The laws by priests and bigots made, Their forms and fees of absolution, And schemes of christian persecution, For while his soul was doom'd to smart, His body might in peace depart. E'en he who erst his judgments hurl'd With vengeance o'er the christian world, Pull'd down the mighty from their seats, Crush'd empires with his holy threats, Absolv'd our strals, our sins forgave, And promish'd every w and k Celestial beds * * * \Here the manuscript is imperfect. Since then to Alfred's potent sway Justinian's genius must give way, 20 THE PLEADER'S GUIDE. To Serjean's coifs, Civilian's hoods, Justinian's institute to Wood's, What boots it that your youth is spent In dull Cimmerian cloister pent ? Why brood ye o'er the toilsome page Like pupils of the Samian Sage In silence, till the cheerful sun Has twice seven years his circuit run, Poring o'er Puffendorf and Grotius, Ye learned sons of Theodosius ? Say when your golden hours begin What are your rents and comings-in ? Oh ! say, for you can best inform us, Good doctor Brone, and doctor Dormous, What mean those periwigs enormous ? Can you upon your oath declare That all those costly loads of hair Are the clear produce of your gains, The clean net harvest of your brains ? Are ye proprietors of these, Or merely usufructaries ? I grant that matrimonial jars, Rapine, adultery and wars; By others deem'd the worst of curses, Have done you justice, fill'd your purses, And prov'd themselves no bad resources. But in your starving times of peace, When naval condemnations cease, And marriages are held in force THE PLEADER'S GUIDE. 21 By that construction in divorce Which lately caus'd so much confusion Touching the doctrine of collusion, That husbands now by wives cornuted Are patiently to bucks transmuted, And ne'er apply to cunning men To bring them to their shapes again, Your visages, I must conclude, Will much increase in longitude ; Peace which brings blessings to the nation Will make a Lent of long vacation, Your clients when they bring their cases Will read Good Friday in your faces, And ev'ry individual cheek Remind them of an ember week. Thank heav'n, in war as we 11 as peace My person thrives, and fees increase ; Not e'en the wretches I undo Will look so woebegone as you ; But through our separate walks we take, Through our respective planets make Such difference 'twixt ourselves and you, Since two congenial trades we woo, Both in the folly of mankind Such comfort and advantage find ; Both to the field of battle go, Like Swiss to fight for freind or foe ; I much esteem such worthy neighbours, And much your smiles will cheer my labours, •22 THE pleader's guide. While to my kinsman I impart The secrets of the pleading art, Teach him the best and readiest way To harass and secure his prey, Shew him the practice of attaching, Distraining, hunting down and catching, In trespass how to spread his net, In case, in trover, or in debt. And not to spread alone, but draw Assignments, and demur in law ; Then when the issue is enroll'd, And at the bar the story told, Give him with eloquence and grace So well to varnish o'er the case, That e'en the judges curious eye Shall scarce its rotten parts descry, And though the facts as noon-day clear Against his client's cause appear, ,Give him with fustian and bombast So thick a fog o'er truth to cast, With words of such due size and fitness To badger and confound a witness, That all who hear him shall confess For language, manner and address, He fairly equals in renown Those two choice heroes of the gown, So fam'd for Ciceronian ease And Demosthenic deinothes, Those nestors of the British forum, the pleader's guide. 23 Th' illustrious Bother'um and Bore'um. But since these distressful days When hunger prompts poetic lays, And bards who feel no other fire Than what th' Aonian nymphs inspire, No cordial sip save what distils From Aganippe's purling rills, Retiring from the vales of Pindus To garret vile with darken'd windows, Are forc'd by lofty invocations To swell their meager publications, And while they rest in time of need To bait the Pegasean steed, Implore some deity's kind favour To give their tasteless rhymes a flavour, I, who by law and justice claim As fair pretentions to the same, Shall beg some godhead to attend And help me to my journey's end, And lengthen out by frequent pauses My lectures, as I've done my causes. And first bright Cynthius I'll subpoeri Prom hallow'd fount of Hippocrene, And summons from th' Aonian grove The daughters of Olympian Jove; But if those sweet harmonious maids Disdain to quit their vocal shades, Nor Cynthius will his fount forsake — To gloomy Dis my prayer I'll make, 24 the p.leadbk's guide. And seek the Acherontic Lake, Down to the Hall of Erebus I'll go, And move some daemon in the courts below. THE PLEADER'S GUIDE. 25 LECTURE IV. Of the Common Law Process — Invocation to an Infer- nal Spirit — Of the Original, or Original Writ — And Process thereon — The High Sheriff — His Executive Power — Of Law Fictions. Come then thou goddess of contention, Genius of craft, and circumvention, You, who in parchment robes array'd, And tape-tied vest of vellum made, With ink-stain'd lips, and eye-halls blear'd, And thumbs with wax and rosin smear'd, The baleful bitter draughts prepare Of poverty, revenge and care, And every tender tie remove Of amity and social love ; Where'er you wield the law's machine, Whether at Lincoln's Inn you're seen, Or those fam'd walls where Serjeants sleep, And plodding clerks their vigils keep, Or at the Temple, as thy trust is, Open the sacred mint of justice, Whate'er the learned haunt you love, Where'er thy busy footsteps move, Say, if some dire occasion leads Two simple wights to logger-heads, Such as of late bred doleful dudgeon 26 THE pleader's guide. Twixt John-a-Grull, and John-a-Gudgeon, (Those ill-starr'd chiefs whose wrath to sing 'Vent'rous I 'wake the trembling string,) What instrument of dread import Must bring the parties into court, From juries to obtain relief, And justice from a counsel's brief? — The writ — from chancery it came, And pleaders must adore the name, The writ, that works the public good •Oft saves th' expense of christian blood : Oft, when two champions burn with rage And pant in combat to engage, Both fix'd their valour to proclaim, Both resolutely bent to aim (Whether with paper charg'd or lead) A pistol at each other's head, Calmly steps in, bids reason 'wake, And wrath her rash resolves forsake, The instruments of death restrains And spares a trembling hero's brains, Yet loth to disappoint the devil, Involves them in a sorer evil, The worst of evils 'tis confess'd (But guard this secret in thy breast); With law entangles and turmoils, And holds them in a pleader's toils — The writ original — the root And master spring of every suit, ' THE PLEADER'S GUIDE. 27 Which erst in mouldy hamper slept By lawyers hanap^r yclept, "Was held much learning to display When learning in her cradle lay; Then first its influence began To charm like Eastern talisman, In form grotesque, and antique guise, Which justice did of old devise, With parchment wing and signet pendant Flew forth to summons the defendant, Stuttering abbreviations mystic In sign and token cabalistic, Latin surcharg'd with Norman French, Returnable to common bench;, A mixture, which like that of Babel, The shrieve to construe was not able, , And though by law no human creature Ad impossibile tenetur, Hamper or Hanaper — In Latin Hanaperium. The Hanaper office belongs to the common law court in chancery. Original writs, in all matters of a civil nature between subject and subject, were kept according to the simplicity of ancient times, in a hamper, as those in which the interests of the Crown were concerned were preserved in a small bag, ( in parva baga ) which is the foundation of what is now called the Petty bag office. Black. Com. Vol. 3. c. 4. 28 the pleader's guide. Defendant at the shrieve's command Must at his peril understand ; But he perhaps who lack'd the wit To scan the learning of the writ, Was much to wise at once to close And grapple with his injured foes, Might rather wish to be excus'd From taking pains to be abus'd, Content his person to eloign, Or stay at home and cast essoign : But though the law in modern days Three barbarous tongues no more displays, Like Pluto's triple headed monster, And pleaders can their pleadings construe, Though sheriffs now the writ's intent Are taught by Act of Parliament, And all mankind so wise are reckon'd E'er since the fourth of George the Second, That none against the laws in use Eloign — Eloigner, Fr. — To remove, or send away. Effoign or Effoine, Fr. Effoinium, Latin,— signifies an excure for him who is summoned to appear to the Original Writ. The original writ is made returnable within fifteen days, the Effoign day is the first of three days next immediately preceding that on which the court sits for the dispatch of business, and on which the defendant is obliged to appear to the writ. THE PLEADER'S GUIDE. 29 From ignorance can plead excuse, Still lest the suit should be delay'd, And justice at her fountain stay'd, A Capias is conceiv'd and born Ere yet th' original is drawn, To justify the court's proceedings, Its forms, its processes, and pleadings, And thus, by. ways and means unknown To all but heroes of the gown, A victory full oft is won Ere battle fairly is begun ; Tis true, the wisdom of our laws Has made the effect precede the cause, But let this solecism pass — Infictione cequitas — Three barbarous, &c. — Till the reign of Edward the Third, all proceedings at law were in the old Norman French, but by a statute of that King's reign, (36, c. 15.) it was enacted that all Pleas should be pleaded, &c, in the English tongue, but be entered and enrolled in Latin. The Latin which succeeded the French, and which was in truth a composition of French, English and Latin, continued in use for 400 years, without interruption, till the usurpation of Cromwell, when the language of the Record was altered into English, but at the Restora- tion, the Latin language was again used, and continued till the year 1730, when it was finally altered and settled by 4 Geo. 2d. c. 26. 30 THE PLEADER'S GUIDE. LECTURE V. Process continued — Of the Writs Latitat^ — Capias — Quo Minus — Of filing Common Bail — Of Special Bail, or bail to the Action. Light lie the sculptur'd marble o'er his breast, Blaz'd be his virtues, and his sins suppress'd, And wheresoe'er his bones are laid • Thrice honour'd be that lawyer's shade, Latitat 1 — A writ so termed because it suggests, as the ground of the power therein given to the Sheriff, a fiction in law, viz. that the defendant is not to be found in the county of Middlesex to be taken by Bill of Middlesex, as it is called, but lurks and lies hid, or, as it is expressed, runs up and down secreting himself within the Bailiwick of the Sheriff, to whom the writ is directed ; F. N. B. 78. It is in practice the first pro- cess in order to compel an appearance in the King's Bench, in the like manner as the Capias is in the Com- mon Pleas : the Capias proceeds as was before shown upon a fiction, that the original had been previously sued out, and the Latitat issues in the King's Bench upon the like fiction, that the Bill whieh is called the Bill of Middlesex in that, court, has actually issued to the Sheriff of that County,and been returned as ineffectual. THE PLEADER'S GUIDE. 81 Who truth with nonsense first combin'd, And equity with fiction join'd, And had the goodness to assign us Latitat, capias and quo minus ! Melodious sounds ! at once they cheer My spirits, and regale mine ear, What bard howe'er in fiction vers'd, By rhyme subpoen'd and coerc'd, Due homage to their worth shall pay And all their various powers display ? If haply John-a-Stile provoke The legal fight 'gainst John-a-Noke, The latitat the foe besieges And baffles him in banco regis Skill'd with ac-etiams 2 to perplex And foil with bills of Middlesex 3 , . Quo minus guides the wordy war Ac-Etiam 2 — An Ac-Etiam is a clause inserted in the Latitat, by virtue of the 13th Car. 2. c. 2. which enacts, that no writ of trespass should hold defendant to bail, &c, any further than an appearance, unless the true cause of action was expressed in the Writ. And there- fore in a Latitat it runs thus, after the words to answer A. B, in a Plea, &c, and also to a Bill of the said A. against the said B. to be exhibited according to the custom of our court before us for £ upon promises, or debt, as the case may be. 32 THE pleader's guide. And mates 4 him at th' exchequer bar, While Capias is rejoic'd to seize And plunder him at common pleas 8 : Nor will it boot th' indignant Noke . ■ Or God or goddess to invoke, Nor God nor goddess shall convey His person from th' impending fray, Doom'd in the action to appear, E'en though the ambient cloud he wear, Which Laertiades of yore, Or Citherea's offspring wore,. For lo ! a grisly Shrieval band That round the seat of justice stand, Give dreadful note of preparation 6 And summons him to litigation, Force him the doubtful war to wage, To file his sureties and engage, Bill of Middlesex 3 — A Bill of Middlesex is a precept directed or presumed to be directed to the Sheriff of that county in which the Court of King's Bench sits, for if it sat in any other county, it would be termed a Bill of that County ; it is called a Bill, and signed Per Billum, to distinguish it from the original. It formerly issued to warrant the Testatum, or as it is now called the Latitat, of which above ; but modern practice has con- solidated the two writs in effect, by reciting in the Latitat that the Bill of Middlesex has already issued, which is generally false. THE PLEADER'S GUIDE. 33 Or if the summons he resists, Enter his name 7 upon the lists, Where each blest fiction is enroll'd The legal conflict to uphold, All for the wisest ends constructed, That suits may better be conducted, That every lawyer in his station May reap the fruits of his vocation, That Pleas and Pleaders may prevail, And justice equal hold her golden scale. But yet alas ! not all conspire Such legal wisdom to admire. There are of writs who disapprove, Dread bail below and bail above, 8 Mates 4 him — The Exchequer took its name a Tabula ad quam assidebant. Camden Brit. p. 113. The table is covered with cloth resembling chess board, whereon when certain of the King's accounts are made up, the sums are marked and scored with counters. Blac. Com. vol. 3. p. 44. Common Pleas 6 — Communia Placita, the Court of Common Pleas holds connusance of all Pleas which are not of the Crown, and which being between subject and subject, are properly denominated Common Pleas. Some have supposed that the word Pleas is short for the word Pleasures, and that the term Common Pleas, as applied to the practice of the Court, means the Pleasurers of the Community. 34 THE pleader's guide. Whom worse than goblins damn'd, the sight Of Sheriffs myrmidons affright, The silver tag, and vermil stamp Chill to the soul with horror damp : These scent the process from afar, . And fly the din of parchment war, But let the plaintiff, ere he sue In debt or case for money due, Swear to the sum, with writ indorse, And let the shrieve said writ enforce, Be quick to execute, but slow To take the proffer'd bail below, Lest with the plaintiff's suit embroil'd, The Shrieve 9 at his own weapons foil'd, The bond assign' d, the debtor fled, Himself defendant in his stead, Be doom'd with curses to bewail The horrors of insolvent bail, Note of Preparation 6 — The English Notice is here alluded to, which is used in all cases where the defend- ant is not to be held to bail. Enter his name 7 — In case the defendant fails to file Common bail or enter his appearance, the Statute 12 Geo. First, empowers the plaintiff to enter an Appearance for him, and to leave a declaration in the proper Office, and upon giving him notice to plead thereto, to proceed to judgment. THE PLEADER'S GUIDE. 35 His folly to his cost expose, And bear the weight of others' woes ; Till by the plaintiff vex'd, and sped, Fresh suits impending o'er his head, He feels in dreams, or seems to feel His own bum-bailiff 10 at his heel, Bail below and bail above 8 — The word Bail is derived from the French bailler, to deliver, because the defendant when arrested,is delivered over to his Sureties, who bind themselves for his forth-coming at a day and place cer- tain. Bail below is the bail to the Sheriff, taken by him, upon the Execution pf the Writ of Arrest. This species of Bail is called special, as contradistinguished from common bail, beforementioned, the Sureties being real and substantial bondmen, and not fictitious,' as in the case of Common Bail. Bail above is the Bail in Court, upon the Defendant's appearance at the return of the Writ, or four days after. It is likewise termed Bail to the Action, and is effected by what is called Justifying Bail, or the Oath of the Sureties upon examin- ation as to their competency and responsibility. The Shrieve 9 ., &c. — If the Sheriff accept bail, which afterward prove insolvent, and does not cause sufficient bail to be put in above, he will be himself responsible to the Plaintiff. The Sheriff is liable to an action for taking insufficient bail, as well as to amerciament. Raymond 425. Salh 99. Sid. 96. 2 Saund. 58, 59. 36 THE pleader's guide. Flies his own writs, and strives to shun Th' ideal form of frightful dun, "Which e'en in sleep his arm assails, Nor aught his shrieval wand avails To conjure down the restless sprite, Or speed him in his fancied flight. , 10 Bum-bailiff, is a corruption of the word bound-bai- liff, or special bailiff, as contradistinguished from the bailiff of a hundred. THE PLEADER'S 0UIDE. 37 LECTURE VI. Of Process against privileged persons — Of the dis- tringas— -Its physical and chirurgical qualities — Process to outlawry, aud the party's appearence upon the eapias utlagatum. Lives there a senator unplac'd, Already ruin'd and disgrac'd, A legislator who retires Before his privilege expires, Sans house, sans land, sans goods and chattels, Or party friend to fight his battles ? No writ his footsteps can detain, No process can his skin distrain, And though a sudden dissolution, Might fit him for an execution, 'Twere best a prudent course to take, And spare him for his country's sake ; For could a member's skin when dried Make parchment like 1 John Zisca's hide, 1 John Zisca — This anecdote of John Zisca, is recorded in Mr. Burke's celebrated letter to the Duke of Bedford, which leaves little room to doubt that this very eminent and ingenious writer must have obtained a sight of Mr. Surrebutter's Professional Lectures in the original M. S. 38 THE pleader's guide. Would it not favour of extortion Should ev'ry lawyer take his portion? Great heroes howsoe'er inclin'd To harass and destroy mankind, Ne'er flesh the steel, or roll the thunder, Without some hopes of fame and plunder; And lawyers who no less delight in The trade of quarrelling and fighting, Should be as kind and tender hearted To those who with their cash have parted, Ne'er from the paths of honor swerve, But hold compassion in reserve, And where they see no hopes of booty, Abate the rigour of their duty. Tis true, there are, in whom you'll find Birth, splendor, pride, and meanness join'd, Who writs by privilege elude, Yet labour for the public good, Against a nation's debts inveigh, Yet scorn a tradesman's bill to pay, Who pains and penalties create For grand defaulters in the state, Yet fain would 'scape the sheriff's search, And leave a plaintiff in the lurch ; But thou, Shrieve, art not the son Of the wise Jew King Solomon, Nor canst thou claim the least pretence To common law or common sense ; Shouldst thou one legal step neglect THE PLEADER'S GUIDE. 39 Their stubborn humours to correct, Take your distringas, come athwart' em And operate secundum artem : You'll find it, in its full extent, A pretty useful instrument, For making issues with, the quicker To drain their cash into the exchequer, With this same instrument pursue'em, And drain them till you quite undo'em ; Work them, till thoroughly aggriev'd, Of goods and chattels they're bereav'd ; In every legal operation There's nothing like evacuation. But is there one who unprotected Has long his creditors neglected, Without the privilege to shine Or slumber in St Stephen's shrine, A lazy wight, of snugness fond, Who'd fain from love of ease abscond, And just has learn'd enough of law To make him all its ways abhor, Has heard that 2 quare clausum fregit 2 . Quare clausum fregit — The Writ of capias before mentioned as the leading process of the court, is here alluded to under a different name ; if the defendant is to be held to bail, it is used with an ac etiam, ( of which before ) and is called a bailable capias ; if not, the 40 THE PLEADER'S GUIDE. May breed a monster call'd elegit, Conceives that s Ca set's are vexatious, And shudders at a fieri facias ? If rich, do thou, Shrieve, make sure His goods or person to secure, Give him by way of how d'ye do A smack of your distringas too, But first attach him, and attend With capias ad respondend' ; Let loose the dogs" of war and furies, 4 Testatum, alias and pluries ; English notice is subjoined, in lieu of the ac etiam, in pursuance of the 12 Geo. I. and it is then called a common clausum f regit. 3 Ca' sa's — A ca' sa as it is called, or Capias ad satis- faciendum, is a writ of execution directed against the body of the defendant , in satisfaction of the plaintiff's debt. 4 Testatum, or testatum capias, is a second writ of capias, directed to the Sheriff of another county upon the return of the first capias, and is so called from the principal word that occurs in it ; it recites the former writ, and states that it is testified,(* or testatum est ) that the defendant lurks or wanders in the bailiwick of the sheriff to whom the writ is directed, and upon the sheriff's return of non est inventus, there issue success- ively the alias writ and the pluries writ, which are so THE PLEADER'S GUIDE. 41 But if at length non est invent', At him again with 5 exigent, Proclaim him by the act's direction (Act 31st Eliz. 3d section,) Then smite him as a coup de grace With 6 utlagatum capias. Exacted, outlaw'd and embruted, His head to head of 7 wolf transmuted, Compell'd by writ of exigenter called because after the words, "we command you," (prcecipimus), the words sicut alias, or sicutpluries, " as we have formerly, or, " as we have often commanded you," occur in these writs, as the reason of their being issued. 5 Exigent — If the sheriff returns non est invent' upon all the writs, a writ of exigent may be sued out, which requires the sheriff to cause the defendant to be pro- claimed, required, or exacted, in five county courts successively, and if after being so exacted, he does not appear, he is outlawed. 6 Utlagatum capias is the writ authorizing the arrest of the defendant, and his commitment to prison till the outlawry is reversed. 7 Wolf. — Alluding to the ancient common law doc- trine of outlawry, the punishment whereof was death, and therefore an outlaw was said to bear caput lupi- num, because any man might kill him as he might kill a wolf. Utlagata et waviata, capita gerunt Lupina qua; 42 the pleader's guide. The lists against his will to enter, See where the captive wretch in court Meet subject both for gain and sport, By writ, as by the cup of Circe, Transform' d, and at the plaintiffs mercy, Stands like a RomaD gladiator, To do a deed against his nature; While we who compass'd his undoing Claim the sole merit of his ruin ; For this we never sought your aid, Ye doctors of the civil trade, Nor ever thank'd you for a curse To help us to defendant's purse, Or strip him of a single chattel, Ye learned votaries of Vattel. Now doctors, reperuse this case, And study the defendant's face, db omnibus impune poterunt amputari, merito enim sine lege perire debent qui secundum legem vivere recusant. Process to Outlawry lies in all actions vi et armis ; by Stat. 13 Ed. I. it lies in account ; by 25 Ed. III. c. 17. it lies in debt, detinue and replevin ; and by 19 Hen. VII. it lies in case and in trespass ; it is now considered, and used only as a process to compel an appearance, and may be reversed upon the defendant or his attorney appearing in court, and indemnifying the plaintiff in full costs. THE PLEADER'S GUIDE. 43 Read in his looks the operation Of legal charm and conjuration, A woeful visage worn with cares ! Such as an exil'd patriot wears — But could you gain a sight of mine, You'd take me for a sleek divine, Whose smooth cherubic features shew The fruits which from good living flow ; Tis true the nature of my face Bears fewer signs of inward grace, Though something on the whole you'll find Which indicates no vulgar mind, A certain graceful tinge of copper, That's quite professional and proper : But by what charm or magic spell I look so plump, and thrive so well, So gay, so blithe in my demeanour, While you so splenetic and lean are, If I am cited to confess, The muse shall venture to digress, In sportive rhyme of artless mould Her " plain unvarnish'd tale unfold", And cheerfully obey your summons, Good gentlemen of doctors commons. 44 THE pleader's guide. LECTURE VII. An episode containing authentic memoirs of Mr. Surre- butter's professional career. Whoe'er has drawn a special plea, Has heard of old Tom Tewkesbury, Deaf as a post, and thick as mustard, He aim'd at wit, and bawl'd and bluster'd, And died a nisi prius leader — That genius was my special pleader — That great man's office I attended, By Hawk and Buzzard recommended, Attorneys both of wondrous skill To pluck the goose, and drive the quill j Three years I sat his smoky room in, Pens, paper, ink and pounce consuming, The fourth, when essoign day begun, Joyful I hail'd th' auspicious sun, Bade Tewkesbury and clerk adieu, (* Purification, Eighty-two) 1 Purification — The morrow of the Purification of the Blessed Virgin Mary is one of the return days of Hilary Term. THE PLEADER'S GUIDE. 4f) Of both I wash'd my hands ; and though With nothing for my cash to shew, But precedents so scrawl'd and blurr'd, I scarce could read one single word, Nor in my books of common place One feature of the law could trace, Save Buzzard's nose and visage thin, And Hawk's deficiency of chin, Which I while lolling at my ease Was wont to draw instead of pleas ; My chambers I equipt complete, Made friends, hired books, and gave to eat ; If haply to regale my friends on, My mother sent a haunch of ven'son, I most respectfully entreated The choicest company to eat it, To wit, old Buzzard, Hawk, and Crow, Item, Tom Thornback, Shark and Co, Attorneys all as keen and staunch As e'er devour'd a client's haunch; Nor did I not their clerks invite To taste said ven'son hash'd at night, For well I knew that hopeful fry My rising merit would descry, The same litigious course pursue, And when to fish of prey they grew, By love of food and contest led, Would haunt the spot where once they fed; Thus having with due circumspection 46 THE pleader's guide. Form'd my professional connexion, 2 My desk with precedents I strew'd, Turn'd critic, danc'd or pen'd an ode, Studied the Ton, became a free And easy man of gallantry : But if while capering at my glass, Or toying with some fav'rite lass, I heard th' aforesaid Hawk a-coming, Or Buzzard on the staircase humming, At once the fair angelic maid Into my coal-hoal I convey'd, At once, with serious look profound, . Mine eyes commercing with the ground, I seem'd like one estrang'd to sleep, ' "And fix'd in cogitation deep," Sat motionless, and in my hand I 2 It is difficult to conceive a more fitting satire than these few lines contain upon the rigid distinctions which in England yet prevail between the two branches of the legal profession, barristers and attorneys. Unless indeed the young barrister be endowed with the highest sense of professional integrity the temptation is almost irresistible to pander to the attorney class with a view to possible briefs, and fat retainers ; " And crook the pregnant hinges of the knee, Where thrift may follow fawning." American Editor. THE PLEADER'S GUIDE. 47 Held my 3 doctrina placitandi, And though I never read a -page in't, Thanks to that shrewd well-judging agent, My sister's husband, Mr. Shark, Soon got six pupils and a clerk, Five pupils were my stint, the other I took to compliment his mother ; All round me came with ready money Like Hybla bees surcharg'd with honey, Which, as they press'd it so genteelly, And begg'd me to accept so freely, Seem'd all so fond of special pleading, And all so certain of succeeding, I, who am always all compliance, As well to pupils as to clients, Took as genteelly as they paid it, And freely to my purse convey'd it ; That I might practically shew, And they in special manner know, Ere they began their pleas to draw, What an assumpsit meant in law — To wit for divers weighty sums Of lawful cash at pleader's rooms, By me said pleader, as was prudent, 4 Had and received to use of student; In short, I acted as became me, 3 Doctrina placitandi, "or the art and science of special pleading" a book so entitled, showing where and in what 48 the pleader's guide. And where's the Pleader that can blame me ? Not one of all the trade that I know, E'er fails to take the readyrino, Which haply if his purse receive, No human art can e'er retrieve. Sooner when Gallia's credit's flown To some Utopian world unknown, Astrsea shall on earth remain The last of the celestial train, To tender assignats at par Triumphant in the Champ de Mar', And when their deep-laid projects fail, And 6 guillotines no more avail, Her baffled statesmen shall excise cases, and by what persons, pleas, as well real as per- sonal, and mixed, may be properly pleaded." * The action for money had and received, lies only for money which, ex cequo et bono, defendant ought to re- fund. Com. dig. Tit. Action on the Case — in assumpsit, a. 1. and for money paid by mistake or on a considera- tion which happens to fail. 16. 6 The poem having originally appeared at a time when the stirring scenes of the French Revolution were still fresh in the memory of men, sufficiently explains the allusion here "conveyed. English literature of that period abounds with frequent allusions of a kindred nature. American Editor. the pleader's guide. 49 Some new found region in the skies, And tow'ring in an air balloon Pluck requisitions from the moon; Sooner the daring wights who go Down to the watery world below, Shall force old Neptune to disgorge And vomit up the Royal George, Than he who hath his bargain made And legally his cash convey'd, Shall e'er his pocket reimburse By diving in a lawyer's purse. 50 THE PLEADER'S GUIDE. LECTURE VIII. Memoirs continued — Mr. Surrebutter is called to the Bar — Goes the Circuit — The character of Mr. Joseph Ferret, a country, attorney — Subject resumed — Instruc tions in the art of Special Pleading — Messrs. John Doe and Richard Roe — Conclusion of the first book. Thus in my saddle I was seated, Ere scarce one lustrum was completed, But when my mental powers I weigh' d, My figure and my mien survey' d, A bold causidical appearance, Strong nerves, strong parts, and perseverance, Par nobler views irispir'd my mind, It seem'd that nature had combin'd An eye to threaten and command, And brows no mortal could withstand, With lungs of iEolus and Stentor, For some great purpose, peradventure, There is, I cried, ( and dropt my pen,) A tide in the affairs of men, Which leads, to fame and fortune those Who take it while the current flows, There is, ye Grods, there is a crisis, I'll seize it whatsoe'er the price is : Prozer was dead, and Serjeant Quirkit THE PLEADER'S GUIDE. 51 Grew husky, and had left the circuit, And as for Shark's friend Shovelnose, We long had deem'd him meat for crows ; I scorn'd in this dull scene to tarry, Essay'd at once a loftier quarry, At once ihdulg'd my fav'rite biass And stamp'd my fame at nifi prius : So now I take my brace of nags, My note-book, clerk and saddle-bags, And saunt'ring gently on my journey, Look out for some good rich attorney, One that's a # judge of parts and merit, Such as that choice discerning spirit; My worthy little friend Joe Ferret, That honest, free, good natur'd soul Who stands so high upon the roll, And fills with such eclat and grace, That pretty comfortable place, He gain'd by government connexions, And prudent conduct at elections, By making ministerial bounty Pass for his own throughout the county : A friend to all who are oppress'd, And seek by law to be redress'd, One that abhors all compositions, All mean retraxits and submissions, Scorns arbitrations as a stain To ninth and tenth of William's reign, Acts, which he deems mislead his clients, 52 THE pleader's guide. Cramp genius, and degrade the science ; But when the sparks of discord rise, Should parties wish to compromise, My little friend provokes the flame, Encourages and spreads the same, And with such zeal and judgment blows The coals of strife 'twixt friends and foes, He ne'er can fail at 'ssize or session, Of growing warm by his profession; His garden's neat, the messuage good, The best in all the neighbourhood, "With door Chinese the front is grac'd, His windows are of gothic taste, The which, to me, though all the village Conceive they're got by fraud and pillage, And both th' exciseman and the rector Despise his taste in architecture, To me, whose taste is less refin'd, And more to social joys inclin'd, If chance my penetrating eye His glitt'ring neat buffet descry, A goodly symptom! and behold His well scour'd knocker shine like gold, Look all so pretty and inviting, I make no scruple of alighting ; At said attorney's fix my quarters, Flatter and flirt with all his daughters, With Kitty Ferret dance cotillions — While you, ye worthy rum civilians, THE PLEADER'S GUIDE. 53 Ye sober, persevering stagers, Hammer your * minors and your majors, And lapt in smoke, and vapours dank, Pore over Lindwood and Lanfranc. — But soft awhile, me thinks dear Job, Our brethren of the scarlet robe, Lull'd by the music of my numbers, Seem to resume their wonted slumbers ; Good Mercury, with caution tread, And Morpheus wave thy wand of lead; While they enjoy their meditations, We 'scape their excommunications. Meanwhile do thou the 2 tale declare, Meet weapons of offence prepare, 1 Minors — The major excommunication separates those on whom it is inflicted, not only from the mystical body of the Church, and from spiritual communion, but also from the society of the faithful : the minor, or lesser ex- communication separates only from the passive com- munion or receiving of the sacrament. — These may be inflicted by sentence of the ecclesiastical judge — Vid. Lenwood de Senten. Excom. C. Ult. Gloss. Wesembery and Lanfranc — authorities greatly relied on in matters of spiritual cognizance, and the practice of the Ecclesi- astical Courts. 2 Tale — The tale or narration contains the story of the plaintiff's case, and is more commonly called the declaration. 54 the pleader's guide. Open your budget of resources, Master your powers, collect your forces, The truth, and all the truth, discover, And add such flourishes moreover, Such aggravations, and additions, Embellishments, and repetitions, As youthful fancy oft begets On some young special pleader's wits, Which serve like notes of commentators, •Or speeches of confus'd debaters, To puzzle e'en by explanation, And darken by elucidation, For puzzling oft becomes your duty, And makes obscurity a beauty ; And trust me 'tis of wond'rous use By nonsense to improve abuse, As I, thank Heaven, so oft have done, And worthily my race have run. Then let us pray for writ of s pone, John Doe and Richard Roe his crony, Good men, and true, who never fail The needy and distress'd to bail, 3 Pone — The pone is the writ of attachment before- mentioned, it is so called from the words of the writ, Pone per vadium et salvos plegios, " Put bg gage and safepledges, A. B." THE PLEADER'S GUIDE. 55 Direct unseen the dire dispute, And pledge their names in ev'ry suit — Sure 'tis not all a Tain delusion, Romance, and fable 4 Rosicrusian, That spirits do exist without, Haunt us, and watch our whereabout ; Witness ye visionary pair, Ye floating forms that light as air, Dwell in some special pleader's brain ; Am I deceived ? or are ye twain The restless and perturbed sprites The manes of departed knights, Erst of the post ? whose frauds and lies False pleas, false oath, and alibis Rais'd ye in life above your peers, And launch'd ye tow'rds the starry spheres, Then to those mansions " unanneal'd", Where unrepented sins are seal'd : Say wherefore in your days of flesh Cut off, while yet your sins were fresh, Ye visit thus the realms of day, Shaking with fear our frames of clay, Still doom'd in penal ink to linger, And hover round a pleader's finger Or on a writ impal'd, and wedg'd, 4 Rosicrusian — For an account of the theory of the Rosicrusian system, see Pope's Rape of the Lock. 56 THE pleader's guide. For plaintiff's prosecution pledg'd, Aid and abett the purpos'd ill, And works of enmity fulfil, Sill doom'd to hitch in declaration, And drive your aneient occupation ? While thus to you I raise my voice, Methinks I see the ghosts rejoice Of lawyers erst in fiction bold, Levinz, and Lutwyche, pleaders old, With writs and entries round him spread, See plodding Saunders rears his head, Lo ! Ventris wakes ! before mine eyes Brown, Lilly, and Bohun arise, Each in his parchment shroud appears, Some with their quills behind their ears, Flourish their velvet caps on high, Some wave their grizzel wigs and cry Hail happy pair ! the glory and the boast, The strength and bulwark of the legal host, Like Saul and Jonathan in friendship tried, Pleasant ye lived, and undivided died ! While pillories shall yawn,where erst ye stood, And brav'd the torrent of o'erwhelming mud, While gaming peers, and 6 dames of noble race, • Dames — Mr. Surrebutter in this passage seems to have contemplated the probability of certain characters of both sexes in the fashionable world, exhibiting their perosns in the pillory for keeping public gaming tables. THE PLEADER'S GUIDE. 57 Shall strive to merit that exalted place ; While righteous scriv'ners, who when Sun- day shines, Pore o'pr their bills, and turn their noughts to nines, (Their unpaid bills, which long have learn'd to grow Faster than poplars on the banks of Po,) Freely shall lend their charitable aid, To young professors of the gambling trade ; While writs shall last, and usury shall thrive, Your name, your honor and your praise shall live: Jailers shall smile, and with bumbailiffs raise Their iron voices to record your praise, Whom law united, nor the grave can sever, "All hail John Doe and Richard Roe for ever.'' Semper honos, nomenque tuum, laudesque manebunt. VlRa. It is written in the true spirit of prophecy, and from a late declaration of a learned and noble Judge, (no less distinguished for his impartial and independent spirit, than for his great zeal aud earnestness for Justice) the Editor very sincerely hopes Mr. Surrebutter's prophecy ■will be shortly fulfilled. END OF THE FIRST BOOK. THE PLEADER'S GUIDE BOOK II. SYLLABUS OF MR. SURREBUTTER'S PROFESSIONAL LECTURES, BOOK II. LECTURE I. Mr. S. having finished the process of a suit at law, opens the present discourse with the pleadings, containing a poetical explanation of the composition and structure of the record, from the process to the postea ; illustrated with professional traits of the character of the late Thomas Tewkesbury, Esq., special pleader, with some account of his death. LECTURE II. On the absurdity of legal Innovations — Of References and Arbitrations — A Justice of Peace — His Judicial Consequence in the eye of the Law — The great ad- vantages resulting from the multiplication of Law Offices, and the Perplexity of legal Proceedings. LECTURE III. On Misprisions in Practice, contrasted with the Profess- ional Exploits, and exemplary Conduct of Messrs. Hawk, Shark and other distinguished characters, f IV SYLLABUS. LECTURE IV. A short Digression, containing a distant Prospect — Mr. S. resumes the plan of his Lectures — His Instruc- tions for forming the complete Orator at the Bar — Making a Motion in Court — Addressing a Jury, &c. LECTURE V* Of Dress and Action in Speaking — Of Ore Tenus Ex- amination, and the best and most approved method of extracting Truth from Evidence. LECTURE VI. Instructions continued and illustrated by the examples of Mr. Counsellor Bother'nm and Mr. Counsellor Bore'um, introductory to the Trial of Trespass in Assault and Battery at a late contested Election. LECTURE VII. The Trial, as taken by an eminent short-hand writer. John-a-Gull, 1 at st. > In Trespass. JOHN-A-GUDGEON. ) For the Plaintiff, Mr. Counsellor Bother'um ; for the Defendant, Mr. Counsellor Bore'um — Mr. Bother'um, opens the Pleadings — His Speech at length. LECTURE VIII. Examination of witnesses for the Plaintiff — Mr. Simon • Trout, dissenting Preacher and Schoolmaster, examin- ed by Mr. Bother'um — Cross-examined by Mr.- Bore'um — Evidence of Dr. Tench, Surgeon and Apothecary. SYLLABUS. V LECTURE IX. Trial continued — Examination of Farmer Chubb, by Mr. Bother'um — Cross-examined by Mr. Bore'um — Conclusion of the evidence for the Plaintiff. LECTURE X. The Defendant's Case — Mr. Bore'um's Speech — Inter- rupted by Mr. Bother'um — His Law Argument — Cites Cases-^- Answered by Mr. Bore'um — Conclusion of Mr. Bore'um's Speech, and of the arguments on both sides — End of the 10th Lecture of the 2nd Book, and the last of the Pleader's 'Guide. THE flea hex's mnibt, BOOK II. LECTURE I. Mr. S. having finished the process of a suit at law, opens the present discourse with the pleadings, containing a poetical explanation of the composition and struct- ure of the Record, from the process to the postea, illustrated with professional traits of the character of the late Thomas Tewkesbury, Esq., Special Pleader, with some account of his death. Then once more, ye Pleaders, and once more Ye plodding clerks, with fingers never weary, I come your pleas and pleadings to explore, And thro' the confines of your cloysters dreary Following the process 'bove th' Aonian steep, . I have presum'd with inky thumbs to sweep The 1 golden lyre ; nor yet the more have a ceas'd To greet 2 St. Michael the Archangel's feast, Nor still sometimes upon 3 St. Martin's morn ■ Thro' Inner and thro' Middle Temple borne, a Yet not the more Cease I to wander where the Muses haunt Clear spring, or shady grove, &c. Thro' inner and thro' middle darkness borne. Milton. THE PLEADER'S GUIDE. (While yet detain'd in that obscure resort) Cease I to roam thro' 4 Elm, or Garden Court, Fig-Tree, or Fountain Side, or learned shade Of King's-Bench Walks, by pleadings vocal made — Thrice hallow'd shades ! where slip-shod benchers muse, 1 Golden lyre Sir John Frotescue observes, " that " the University of the Laws (for he so calls the Inns ot " Court and Chancery) did not only study the laws to "" serve the Courts of Justice, but did further learn to " dance and to sing, and to play on instruments on the Ferial days." Dudg. Orig. Juridic. c. 55. Fortesoue de Laud Leg. Ang. c. 49. Mr. S. seems to have acted up to the spirit of the original institution, see the Me- moirs of his Professional career, Bk. 1 Led. 7. i > • 2 St. Michael the Archangel — The Law Terms respect- ively derive their names from the festivals of the Church, immediately preceding their commencement. Miohael- mas Term originally commenced in eight days after the feast of Saint Michael inclusive, Octabus St. Michaelis; but by the joint operation of two Acts of Parliament, and the alteration of Style, it has in eifect been procras- tinated,so as not to commence before the 6th of November. 3 Saint Martin — Orastino St. Martini, "the morrow of St. Martin," the 12th day of November, formerly the fourth, now the second return day of Michaelmas Term. THE PLEADER S GUIDE. 5 Attorneys haunt, and special pleaders cruise ! — Melodious as Apollo's lute Is the soft language of a suit, The writ, how sweet ! the declaration, The double plea, the replication ! Persuasive as the accents sweet, Which captive held the Grecian fleet, Or his, that vocal Bard of Thrace" Whose music tam'd a savage race : Replete with all the beauties chaste Of Attic and Augustan taste : The which do most in ancient writ Delight to live, videlicet " "George * * * * To the shreive of * * * * greeting, " Whereas, John Doe himself secreting, "Your bailiwick runs up and down, " We do command you thereupon i Elm or Garden Court — " The Inns of Court were " placed out of the City and noise thereof in the suburbs of London. " Seorsumparumperin Oivitatis suburbio." Fortesc. The several courts in the Temple, have been erected at different periods upon the site of the gardens and pleasure grounds, belonging to the hostel or domus mansionalis of the temple. 5 George #e. — The sketch of an alias latitat is here given, e. g. but for the praise of the admirable writ, the the extent of its powers, &c.,&c, see ante,Booh 1, Lect. 5. and notes. THE PLEADEK S GUIDE. "(Sicut alias) that you bring "His body 'fore our Lord the King, "■And have you this writ then and there, " Witness L. K. at Westminster." Now, 'tis not every one can see That beautiful simplicity, Which in this 6 precept meets the ear, 60 forcible, distinct, and clear, And gives beyond the reach of art Such strong emotions to the heart, — These magic forms of writs and entries, Still charm the shades of Coke and Ventris : No harsh, no unharmonious sound Is in the record to be found : Fiction is ours, and fancy too, Imagination ever new, And many a quirk, and many a bout "Of linked sweetness long drawn out." "With wanton heed and giddy cunning," The half-drown'd sense thro' mazes running Of varied counts, whose forms supply Fresh food for jocularity : But what with more substantial charms Our spirits cheers, our genius warms, 8 Precept-^- The "Writs directed to the Sheriff are legally termed precepts, from their operative word prcecipimus, "we do command you THE PLEADER S GUIDE. To aid us in our legal toils, We claim the hero's glittering spoils ; Ours is the meed, which all must pay, Whether they win, or loose the day : "In lively portraiture display'd," And gently on our tables laid, We view the countenances bright Of kings and queens ; a goodly sight ! Which even Jacobins adore, Impress'd upon the golden ore ; may they oft in bright array On me their gracious smiles display ! Oft may their precious forms unite Meet emblems of the sovereign'* right, At once t' inspirit and surprise, To dazzle and enchant mine eyes ; With music charm my ravish'd ears, Harmonious as the vocal spheres, And join like cymbals when they meet In joyful qhinks and numbers sweet! — Inspir'd with images like these Old 7 Tewkesbury perus'd his pleas, Tho' his I deem'd an inspiration, Which savour'd much of fascination, 7 Tewkesbury — The late Thomas Tewkesury, Esq., see episode, containing authentic memoirs of the author's professional career. Booh 1. Led. 7. THE PLEADER S GUIDE . And caus'd such bodily exertion As gave his friends no small diversion : For oft I've mark'd him when he chose Special demurrers to compose, With genuine old black letter fraught, Grow quite transported with the thought, His thumbs he'd mumble to the quick, His shins against the table kick, Then give his rueful wig to fly Athwart the room in ecstasy, Till clients, and the sound of fees Arous'd him from his reveries, And soon as Hawk or Heme appear'd, He'd rub his hands, and stroke his beard, Resume his old colloquial turn, "With how d'ye do good Mr. Heme ? — "Hah ! Mr. Hawk, is't you, I say. "And how does Mrs. Hawk, I pray ? "And all the little Hawks to day ?— "What news is stirring in the trade ? "Have all those damages been paid "By Dr Hemlock, for the kick "He gave to Dr. Arsenic ? — "Still quarrelling about their pills, "Pray have their patients made their wills ? "How goes the Gull and Gudgeon cause ? "I see you've got 'em in your claws, "You've pounc'd 'em, Hawk, you'll pluck 'em too, — THE PLEADER S GUIDE. "Pretty good sport for Heme and you ! — Such parley would his writs restore, And Tom became himself once more. Blest sage ! who could his mind unbend, Yet had a soul to comprehend Those subtile mysteries sublime, Snatch' d from the mould'ring hand of time By skilful draftsmen to impart Choice beauties to the pleading art ; He in the twinkling of an eye, Could all the scatter'd charms descry Of 8 horsepleas, traverses, demurrers, Jeofails, imparlances, and errors. Averments, bars, and protestandos, And puis d'arreign continuandos, Of every count and term could tell, And words of uncouth form compel, (Such as could ne'er have had existence, Or met without his kind assistance,) To keep due pace in declaration, With studied grace and variation : 8 Horsepleas — A description of special pleas adapted to the purposes of delay, whimsically so called, and fa- miliar in practice, adopted in particular cases, as a means of gaining time, and jockeying the defendant over the term. 10 THE PLEADER'S GUIDE. While every man of sense beside him Conceiv'd 'twas aliud et idem. — Alas ! poor Tewkesbury ! the smell Of ancient parchment pleas'd thee well ! But thou art gone ! and mays't thou gain That peace thy clients sought in vain : 'Twas hard no dilatory plea, Of power to keep the body free, Thine issuable term could save ; That Clotho no imparlance gave, ^Nor would the fates estop their task, To help thee over 9 Quinderi Pasch ; But seiz'd at once th' abhorred sheers, And cut the red-tape of thy years ; And still the fatal sisters hold The issues of thy life enroll'd, Remov'd forever in the last resort By writ of error into Pluto's Court. What mortal sins he had, Tom died assur'd Would by the statutes of jeo-fail be cur'd, And for "his virtues of the higher class They'd stand recorded in congenial brass : — 9 Quinden Pasch. — The 15th day inclusive after Easter, being the first Return Day of Easter Term. THE PLEADER'S GUIDE . 11 So bow'd obedience to fate's just decrees, But first craved oyer of his book of fees ; Strove to protract each moment as it past, And talked of posteas till he breath'd his last. 12 THE PLEADER'S GUIDE. LECTURE II. On the absurdity of legal innovations — A Justice of the Peace — hisjudicial consequenec in the eye of the law — The great advantages resulting from the multiplica- tion of law offices, and the perplexity of legal pro- ceedings. Wise was the man who first projected The lever, and its use directed, And bold th' adventrous engineer Who swore he would the earth unsphere, And move the firmament to boot, Give him but where to set his foot. — Yet will I hold a lawyer fee'd is Abler by far than Archimedes, Give him a writ, a capias put in, Or latitat by way of footing, And on the credit of a bard He'll move the devil afterward : Yet there are lawyers to be found For learning and for worth renown'd, THE PLEADER'S GUIDE. 13 Who by a summary proceeding Wish to abate all special pleading, Join general issue, and dispense The special facts in evidence, Or bring the parties to accord By arbitration or award; This doctrine too, without demurring, Their clients might perhaps concur in, And since a more compendious way So far exceeds the law's delay, Might beg some justice of the quorum, At once to lay the law before 'em ; And thus all matters of account, Whate'er their nature and amount, All actions on the case, in trover, Detinue, or in debt, make over To some grave magistrate, of sense Of knowledge, weight, and consequence, Who of his dedimus possest As one with inspiration blest, Enjoys the happiest transition From ignorance, to erudition, And with no other stock in trade Than testament on table laid, With acts 'gainst tunneling and snaring, And John the evidence to swear in ; John Groom, who leaves his worship's horse Unfed, to put the laws in force, 14 THE PLEADER'S GUIDE. And three old folios on a shelf, A court of record is himself. — Alas ! how little do they know What blessings from confusion flow ! What a revenue to the state Error and ignorance create, By what we lawyers most abound in, The art of puzzling and confounding ! From ignorance a pleader gains Fresh matter to employ his brains, Errors on errors rise, and thus As doctors say, pus creat pus, One suit another suit succeeds, And damage upon damage breeds ; If law is as a rule of right, And all things must be measured by 't, There must be lawyers to provide it, And some to move and some to guide it ; Item, there must be stock or stone, Or senseless block to work upon, A rule of action, unemploy'd, Had better far be null and void, But law, like Nature, to sustain Her system, never acts in vain, Tho' all that system may comprise, Is dimly seen by vulgar eyes ; Observe the animal creation Each class in due subordination, THE PLEADER'S GUIDE. 15 What nice dependencies * you see in The chain of Universal Being, From elephant ef Bisnagar, "Who hears its armed hosts to war, Down to the noxious worm that feeds On slime, and in corruption breeds. Howe'er imperfect human sight, All knowledge partial and finite, This truth still vibrates on the chain That nature never acts in vain — Fowls of the air, and beasts, like men Prey, and are prey'd upon again; And if the lower class expire, Their loss proves fatal to the higher — Mark thus in Law the nice gradations Of useful posts and occupations, Of all, for money who engage in't, From Buzzard to the meanest agent, 1 Though, less known to fame than his great prede- cessor Pope, our poet seems to have drawn inspiration from the same source. See Essay on Man, Epistle I. The striking likeness, both of thought and expression, can not fail to attract the notice of even the uncritical reader. American Editor. 16 THE PLEADER'S GUIDE. All labour in their just vocation, And each, by kind procrastination, As one good turn deserves another, Multiplies business for his brother. THE PLEADER'S GUIDE . 17 LECTURE III. On Misprisions in practice, contrasted with the pro- fessional exploits and exemplary conduct of Messrs. Hawk, Shark and other distinguished characters. Then woe to him who would devise Pacific schemes of compromise; Perish the man who dares control That generous ardor of the soul, That noble, that ingenuous heat Which prompts the truly brave and great, To seek an adversary's ruin, Tho' purchas'd by his own undoing. May the fat weed of Lethe shed Its dullness o'er his recreant head, Whoe'er has wilfully supprest That passion in his client's breast; May he in self-condemning mood, For lack of more substantial food Eat his own soul; as erst we find Th' ill-fated son of Grlaucus din'd; Give him of hellebore to drink; — Wash him in steep-down gulphs of ink; Immerge him till he cries for quarter, And pound him in a * Turkish mortar. — Oh ! that such false and foolish pride, Should a man's genius so bestride, 18 THE pleader's guide. Arrest his faculties, and mar Their action, like a plea in bar ! Is it not marvellous, dear Job, So many of the learned robe, Should all those thriving arts despise, By which more ardent spirits rise, And court, to their own interest blind, The empty praises of mankind ? Sure there's a lack of sound discretion, In every branch of the profession ; A plague upon all squeamish pleaders, Proud juniors, and fastidious leaders, Humane attorneys, and all those Who seek a quarrel to compose, Which ably manag'd, and well nourish'd, Might soon have taken root and flourish'd, And where old Buzzard would have flung Cart loads of good and rotten dung, They wilfully pluck up the roots. i Turkish mortar — Extraordinary as it may appear, it is a fact not to be doubted, that the lawyers in Turkey when sentenced to capital punsihment, have the privilege of being pounded to death in a mortar. Baron de Tott in his memoirs, records an event that happened during his residence at Constantinople, which accasioned the pestles and mortars to be dug up, by the order of Sultan THE PLEADER'S GUIDE. 19 Young suckers,' and old stumps of suits, Which, forc'd in Chancery or th' Exchequer, To make them vegetate the quicker, Might have produc'd by such circuity, Fruit equal to a good annuity, Choice golden fruit, of taste most rare, In form as palpable and fair, As that which to the trees attach'd Of HesperUs hung dragon-watch'd, Or that fair fruit so sweet of savour, Which Eve complain'd the Serpent gave her, Or fairer still from India brought, And oft with no less evil fraught, Which, fill'd with most delicious juices, The fam'd pagoda-tree produces. — But are such lawyers sound and staunch, Who grub a cause up root and branch, And have the conscience to restrain Law-charges, covin, and chicane ! Nay sacrifice their time and ease, Then wilfully return their fees ! Are these true orthodox attornies ? Are they such men as Hawk or Heme is ? Osman, for the purpose of pounding the refractory law- yers to death. "This order the Baron adds, had the desired effect, and the body of Uleinats were all submis- sion." Bar. de Tott Memoirs, vol 1. 20 THE pleader's guide. Have they that truly qui tarn spirit Which animates my friend Joe Ferret ? Range they in any competition With men of Mr. Shark's condition ? — All my professional connexion I owe to Mr. Shark's protection, He, (while on special-pleading bent To Tewkesbury's I daily went) Gave me a general invitation . To write for him the long vacation, T'was kind, 'twas handsome, I confess, I took it, I could do no less, And never was there known a tutor In business abler and acuter ; 'Tis not enough, says he, you're willing For ev'ry sheet to take a shilling, There's no small virtue you'll discern in That wholesome branch of useful learning, By which his cash a pleader touches, And gets the cause within his clutches, He wish'd, he said to see me grounded, And as with clients he abounded, I went, I wrote, and without scruple Became his extra-clerk, or pupil ; And pardon me, ye men of pensions, And patents for your rare inventions, If without boasting I declare That during my manoeuvres there, THE PLEADER'S GUIDE. 21 More paper I besmear'd with law, Than ever you can make with straw, Or can by chemic art obtain Its native purity again. Ye G-ods ! what parchment did I soil, Wha,i loads of sheepskins did I spoil ! More, than if fairly put together, And turn'd by contract into leather, In drums and breeches would sustain The labours of a whole campaign. Tho' not a man of much black letter, Shark knew the world, Job, no man better ; 'Twas a surprise to all who knew him, And no small consolation to him, To think how many fools he made, What service he had done the trade ; He set together by the ears Squires, parsons, baronets and peers ; And once he made twa Scottish lairds Quarrel and pull each other's beards, Tho' twa such lairds are seldom found To quarrel much on 'English ground, Still did he fan the vengeful fire, Urge and exasperate their ire ; With writs of error and appeals He goaded these relentless chiels, And made each combatant sustain The conflict like a valiant Thane, 22 THE pleader's guide. Gave each his parchment shield, — "then on, McDuff, And damn'd be he who first cries, Hold, Enough !" * ii » i > THE PLEADER'S GUIDE. 23 LECTURE IV. A short digression, containing a distant prospect — Mr. S. resumes the plan of his lectures — His instructions for forming the complete orator at the bar — Making a motion in court — Justifying bail — Addressing a ju- ry, etc. Alas ! what ills await the students Who seek to thrive by jurisprudence ! How oft the youth, long doom'd to toil, And cultivate that stubborn soil, With no kind hand to lead him forth, And patronize his modest worth, Sees his neglected merits fade, And moulders in the cloister'd shade; Doom'd in obscurity to pine Without such friendly aid as mine ! How many geniuses are crost, Or 'midst a crowd of idlers lost, Are hunting all their lives to find That knowledge they have left behind ! How many rising men he'll view (Whom in their humbler days he knew) Who since my lectures first appear'd, Successfully their course have steer'd; Who've learn'd,dear Job, and practis'd too, 24 THE pleader's guide. Those lessons which I meant for you! — While he, with wind in hypochonder, Ready to burst his ribs asunder, Forlorn in smoky chambers sits, And reads, and sleeps,and spouts by fits, And fancies every dun who knocks Is slipping fees into his box, Yet fondly hopes to reap at last The fruits of all his labours past; Waiting the tedious consummation Of twice ten winters' lucubration, When for his light and summer reading, And for a trifle, he might tread in The flow'ry paths of special pleading ! Alas ! how long his pocket grows ! He cruises oft at Will's 1 or Joe's, And oft, as many a greater man does, Eats, drinks, and falls asleep atNando's, Then dreams he that some point he's mooting i These were famous coffee houses in London at the end of the last century and were much frequented by poets, authors, wits and men about town. Nando's was the favorite resort of lawyers, and Thurlow, then at the bar, owed his retainer in the celebra- ted case of Douglas, v. the Duke of Hamilton to some remarks dropped by him in conversation at this resort. American Editor. THE PLEADER'S GUIDE . 25 And with the learned Hill disputing, And tho' for conquest vainly hoping, When with that vet'ran serjeant coping, The fame of so renown'd a foe Consoles him in his overthrow, E'en by defeat he seems a gainer, Thinks Buzzard brings him a retainer, And briefs and clients without number, Attend him in his golden slumber; Anon he'll dream that he embraces Gold chains, portcullises and maces, Then with a tough beef steak opprest, Fancy the seals are on his breast; He sees the demon o'er him lower, The incubus of state and power, And vainly struggles to get free From all his weight of dignity; Till chance some noisy politician, Some hungry quack, turn'd state-physician, Thersites-like from spleen and hate, Arraigning all who rule the state, With loud harangue effects his cure, And wakes him from peine fort et dure. 2 2 " Peine fort et dure" — The penalty for standing mute in old time. Peine is supposed to be a corruption of Prisone, and so it is called in Stat. 3d Ed. 1, c. 12, which- speaks of this punishment as part of the common 26 THE pleader's guide. For thee, dear Job, the stars design Thy genius at the bar to shine, There in full splendour to appear, And light the western hemisphere, Or in a blaze at once break forth T'illume the region of the North; Already do I see thee there In brightness like the greater bear, The Star of Arcady, that rises And flames at sessions and assizes, Nor will those laurels fail to shed Their verdant honors o'er your head, Which you so late for 3 wrangling famous, law of the land. It seems to have consisted in laying the criminal on his bare back upon the bare floor, and pla- cing a weight of iron upon his body, to be gradually in- creased till he pleaded, or as some say, till he expired. But for the honor of the laws enacted during the gra- cious Reign of his present Majesty, (Act 12, Gr. 3. c.,20.) it is in effect abrogated. By this statute, a criminal wilfully standing mute, or refusing to answer directly to the offence, shall be proceeded against in the same man- ner, as if he had voluntarily confessed, or been duly and regularly convicted. 3 "Wrangling" — It will be unnecessary to remark to the classical reader, that the academical honors, derived to the students, who are candidates for the degrees of Batchelor of Arts in the University of Cambridge, are THE PLEADER'S GUIDE. 27 Transplanted from the banks of Camus; If to the logic of the schools You join a special pleader's rules. And then to Westminster resort, And take a few short notes in court, Sit snug behind some fat attorney And make a friend of Mr. 4 Gurney, You'll gain, in time, your share of praise For arguments on 5 paper days, And much improve your legal notions, By th' art of wrangling upon motions, Lamenting much your client's hardship — " My Lard, I humbly move your Lardship — " Rule to show cause, my Lard, we crave it, " Upon a special affidavit. — " We move to quash, in your discretion, "An order of a special session, '' Sign'd by five aldermen at least, classed, and the several graduates dignified, by the appe lation of senior or junior wranglers, senior optime's and junior optime's, according to the degree of learning and ability they have displayed in disputing or wrangling upon their Examinations in the pubbc schools. * Mr. Ghirney — A very eminent and ingenious short- hand writer. 6 " Paper Days." — Days in each term appropriated to the hearing of arguments on cases reserved, and 28 THE pleader's guide. " Just after an election feast. — " Order in bastardy, my Lard, "' Case not appeal'd, and doubly hard, " Twins — and the aldermen who sat " Exceedingly intaxicate — " Nor on these grounds we rest alone, " My Lard it plainly can be shown " That neither county, place, nor year, " In which the parties liv'd, appear, " Nor the least mention where they met " Said child or children to beget ; " My Lard the order is not dated, " Nor any filiation stated — " No mention of the childrens sex, — " All which are radical defects ; " And as we deem the case aforesaid " So clear that nothing need be more said, " Perhaps, my Lard, you'll aid our suit, " And grant us a rule absolute." Now Job, this manner of addressing Is so polite and prepossessing, issues in Law upon special pleadings. They are prob- ably so called from the paper books containing these issues, which are previously delivered to the judges by the clerk ot the papers, whose office it is to prepare them in the form prescribed by the standing orders of the court. Pasch. 18 Car. 2. 2 Litt. Abridg. 268. THE PLEADER'S GUIDE. 29 So wonderfully well connected, Plain, elegant, and unaffected, I recommend the same to you, For making a genteel debut. Nor less the passions you will move, In justifyng bail above, Whene'er you work the swindling crew, Or catechise the hireling Jew, Him to bamboozle with success, With smiles accost, and soft address, And e'er with questions you confound him, With irony come gently round him, His fashionable whiskers note, His rings of paste, and tarnished coat ; And compliment, with due derision, All members of the circumcision, Then strain each nerve, use all your might, To stultify the Israelite ; But if too wise to be o'ertaken, Well knowing how to save his bacon, In vain old Smouch you have turmqil'd, And find yourself completely foil'd, Then take the ground you went before, And strive to be jocose once more, Not overbearing, loud, and coarse, Like Bore'um, bawling till he's hoarse, Who like abirritated bison, The roughness of his tounge relies on, But more in Mr. Both'rum's style 30 THE pleader's guide. Of poignant and facetious bile, Who, tho' long-winded, in the main Exhibits oft a comic vein, And when his adversary presses In motions circular progresses, Resembling much the wise Stinkvinzen, Who perseveres until he ends in The very point that he begins in; The Carolina skunk, who pushes His head into the briers and bushes, And when he can no further go, Scatters his perfume on the foe ; Such genuine wit will oft prevail, When serious disputations fail, Will make e'en special juries smile, Will oft convince, sometimes beguile, And force to ludicrous grimaces Twelve men of grave judicial faces, Whom counsel, greatly to their praise, Lead thro' the law's bewild'ring maze, Perplex'd in classical confusion Of flow'r, trope, figure and allusion; Till in a fog they gaping stand, Like mariners in Newfoundland, Or pigs, who're wont, in hazy weather, To grunt and lay their heads together; Distrust and doubt, and wild surmise Alternate in each bosom rise, And even o'er the Foreman's brains THE pleader's guide. 31 Cimmerian night, and 6 chaos reigns. 6 " Ohaos reigns " Chaos umpire sits, And by decision more embroils the fray By which he reigns ; next him, high arbiter Chance governs all. — Milt. Par. Lost, Booh 2, 907. 32 THE pleader's guide. LECTURE V. Of dress and action in speaking — Of ore tenus examin- ation, and the best and most approved method of extracting truth from evidence. "lis strange, Dear Job, among the rules Of tutors, in the ancient schools For rhetoric renown'd, nor less For judgment in their pupils dress, Tho' some have learnedly laid down The pattern of a pleader's gown, No common lawyer or civilian, Not even Tully, or Quintilian, One single syllable have said Touching the dressing of his head. — A science, tho' in former ages Unknown to orators and sages, In these politer days we find One great employment of mankind, And since, while fashion bears the sway, Your head its dictates must obey, Must run thro' scratches, crops and queues, Of questionable shapes and hues, And after all its changes past, In grizzle-wig must end at last ; THE pleader's guide. 33 I think, dear Job, upon the whole, 'Twere best at once to shave your poll, Lest while the wordy war is raging, And you the foe with warmth engaging, That grizzle we may chance to see Revolting from a black toupee, And when too forward 'tis inclin'd, A pig-tail sticking out behind : Be you in other guise array'd, Tour tie-wig decently display' d, And when before the bench you stand, Words apt, fit weapons at command, Altho' the gods, as well you know, On you such wond'rous gifts bestow ! A face so fortified with brass, I trust it would my own surpass, And voice which envy must admire, And own that you excel the crier! At first, with accent mild and meek, And looks that diffidence bespeak, With modest air and timid hand Hold up your brief, and stroke your band, For modesty, whose gentle mien, If haply at the bar she's seen y The court with that respect will treat Which strangers may expect to meet, 'But when grown warm in. your narration, Proceed to loud vociferation, Strong phrase, and bold gesticulation ; 84 the pleader's guide. Then like a prisoner from the bilboes, Stretch out your legs, your arms and elbows, Till you manoeuvre them at length, With all the spirit, ease and strength, Of some young hero, first essaying The noble art of cudgel-playing, Or fugelman, an active part Performing in the tactic art; Flourish your brief, look boldly round, And stamp your foot against the ground, Then smack your forehead, and your thighs, Like one that's bit by gnats or flies, And so go thro' your exercise : For when a counsel tells his story, As Tully says, de oratore, Arms, legs, and thighs, must play their part, And aid the rhetorician's art ; Action must all his words enforce, And make his body hold discourse. As nothing props a rotten case Like strength of lungs, save pow'r of face, I ask no wart so near my nose, Or scraggy neck like Cicero's, Or some provincial's face I've seen, Gaunt, oblong, ossified and lean ; Grant me, ye. Gods, for pleading causes, Some breadth of cheek, some depth of fauces, A strength and dignity of feature, THE PLEADER'S GUIDE. 35 Something I can't express in met*e, That cheerful confidence of visage Which gives of wit and sense a presage : Whene'er a counsel's pinch'd and prest, Much will depend on width of chest, The strength and tone of th' epiglottis, And state in which his learned throat is ; For if 'tis true, as I conjecture, (And hinted in a former lecture,) That process is a lever, pleading Is some mechanical proceeding, Combining somewhat of the screw, The pulley, and the lever too, By which great advocates compel Truth from the bottom of her well,. And drag her by her dripping locks, Disguis'd into the jury box : While judges yawn, and patient sit To hear th' encounters of their wit ; For wit, although the lot of few, All counsel think their lawful due, And when it fails, as wit is wont, When too much labour's us'd upon't ; A witness ever and anon Serves like a hone to whet it on, Or like a but is fix'd and shot at, That truth the better may be got at, Who baffled in the first attack, 36 TIIB pleader's guide. Stares like the man in th' almanac, Perplex'd with problems multifarious, And pierc'd with darts thro' members various, Quite down from Aries to Aquarius. THE PLEADER'S GUIDE. 37 'LECTURE VI. Instructions continued, and illustrated by the examples of Mr. Counsellor Bother'um, and Mr. Counsellor Bore'um, introductory to the trial of trespass in assault and battery at the late contested election. Job, of all powers that wind, or draw, ' And work that great machine the law, Do thou, my friend, keep most in view That greatest of all pow'rs, the screw; The power of screwing and distressing, By worming^ winding and compressing, Facilitates the extrication Of truth by cross-examination ; But no one engine or invention, Forg'd by the daemon of contention, Gives such a purchase in a cause, Beyond the vigour of the laws, So governs and upholds unseen The movements of this vast machine, As pride, resentment, and ill-blood, Which from the ule or the wood, Create the matter and foundation, And subject of all litigation : 38 THE pleader's guide. What robs of ease and independence, So many plaintiffs and defendants, And leaves their purse at our devotion, To grease and set the wheels in motion ? — Vengeance ; that fills th' historic page, The scourge of ev'ry clime and age, 'Twas wrath, destructive wrath alone, Steel'd the proud hearfof Peleus' son, Brought to the Greeks a thousand woes, And sent them to the dogs and crows ; The same fell cause wrought equal dudgeon 'Twixt John-a-Gull and John-a-Gudgeon, And left them with the like contrition, Precisely in the same condition : 'Twas wrath and hatred's raging fires, The breasts of these two harmless squires To deeds of desperation drove, And perfected the will of Jove. Ah ! John-a-Gull, thou wretch ill-judging ! And thou, relentless John-a-Gudgeon ! How oft I've heard you in distress, And bitterness of wrath, confess, That better far than litigation Had been the prudent arbitration, Of one so noted for his candor And sage advice as Sir John Gander ! An honest prosing knight, who ne'er Of damages and costs could hear, THE PLEADER'S GUIDE. 39 (Since first he chanc'd to be cornuted, His action brought and was nonsuited,) But with a shrewdness, seldom seen In one of Sir John Gander's mien, Join'd with a confidence and phlegm, 1 Which no sound lawyer will condemn, The same good story he'd relate Of that wise prince and potentate, Pe.ter the Czar, 1 surnam'd the Great, " Who, when he came to Albion's shore, " Her arts and manners to explore, " That dome survey'd with curious eyes, " Where Rufus caus'd his courts to rise, " There, when in well-comb'd wigs he saw " A group of heads, all learn'd in law, " What are those grizzly forms (he cried) ? — " Lawyers, th' interpreters replied — 1 Allusion is here made to the celebrated visit of Peter the First, Czar of Muscovy to England in 1698, where he spent three months in studying English man- ners and customs, devoting himself especially to naval affairs. His stately form and singular character, as ■well as his eccentric personal habits which were little better than barbarian, excited much curiosity and attracted crowds of people to gaze upon him whenever he made his appearance in public. American Editor. 40 THE PLEADER'S GUIDE. " Lawyers, ! that never can be true — " In all my realms I have but two, " And to those realms, should Heav'n once more /. " Vouchsafe their monarch to restore, " One I shall soon" — — but what the Czar meant, Whether to rise him to perferment, Or sus. per col. was 1 his intention, This worthy knight forbore to mention, Save what by gestures he exprest, And left his friends to guess the rest. For you, whose heads by fate accurst, Some friend infatuated first, Long are you destin'd to repent That hour into those courts you went, Alas ! full often have your spouses Foretold the ruin of your houses, With sighs, and tears, and empty purses, Wail'd your successes and reverses ; Nor spar'd some pretty keen reproaches, Riding in gigs instead of coaches ; " This plaguy lawsuit on our backs, " Is heavier than the income tax ; " Sure law was made to be th' undoer " Of just such nincompoops as you are ! " For one must needs to Ferret go, " T'other to Cormorant, and Crow," " All of the true rapacious breed, THE PLEADER'S GUIDE. 41 " As ever a poor client flay'd, " Who never yet deserv'd a curse " For sparing a rich client's purse, " But make his case so much their own, " They'll pluck and pick him to the bone, " And see him thoroughly dissected, " Rather than have his plea rejected, '' Or cause for want of cash neglected. Dear Job, this legendary strain Saves authors much fatigue of brain, In hunting o'er Parnassian ground For phrases better miss'd than found, I ne'er in epic or in ode The muse's fiery courser rode, Was ne'er ambitious to be seen Near that same horsepond Hippocrene ; I ask no forked hill to dream on, No aid from Deity or Daemon, Instead of Hsemus or Sperchius, " Give me a brief at nisi-prius" — The only aid that I require, is The aid of juries, and venires, Unless 'twere possible to choose Some iron-tongu'd, long-winded muse ; If such there be, whose 'lungs would reach The length of Mr. Bore'um's speech, And lift my numbers to th' extent And height of Both'rum's argument, Oh ! had you heard the Gudgeon cause, 42 THE pleader's guide. And number' d all the hems and haws, With all those arguments that I did, Which left the conflict undecided, You ne'er had thought 'twas Mr. Bore'um, Or Both'rum, who drove all before 'em, But two great orators had come Express from ancient Greece or Rome, Or Laertiades had stood With Ajax near Scamander's flood, To plead for Homer, and dispute Troy's bounds in an ejectment suit, 'Gainst worth and learning's favorite client, The venerable Jacob Bryant : That Nemesis herself had breath'd Thro' Both'rum's windpipe copper sheath'd, Or Wildman's bees had reappear'd, And settled upon Bore'um's beard, And left upon his mouth of leather Their honey and their stings together ; For thus, quick rising on the plaintiff's side, The deep-ton'd Both'rum spoke, and Bore'um slow replied. THE PLEADER'S GUIDE. 43 LECTURE VII. The trial, as taken by an eminent short-hand writer. John-a-Gull 1 at st. > In Trespass. JOHN-A-GlJDGEON. j For the plaintiff, Mr. Counsellor Bother'um. — For the defendant, Mr. Counsellor Bore' urn. — Mr. Bother'um opens the pleadings — His speech at length. I rise with pleasure, I assure ye, With transport to accost a jury, Of your known conscientious feeling, Candor, and honorable dealing, From 1 Middlesex discreetly chosen, A worthy and an upright dozen. (aside.) This action, Gentlemen, is brought By John-a-Grudgeon for a tort, The pleadings state, " that John-a-G-ull With envy, wrath and malice full, 1 "Middlesex" — This being an election affray, the venue is supposed to have been changed upon the usual affidavit, for the sake of a more fair and impartial trial before a Middlesex jury. 44 THE pleader's guide. With swords, knives, sticks, staves, fist and bludgeon, Beat, bruis'd and wounded John-a-Gudgeon, First count's "for that" with divers jugs, To wit, twelve pots, twelve cups, twelve mugs, Of certain vulgar drinks called toddy, Said Gull did sluice said Gudgeon's body; The/ second count's, for other toddy, Cast, flung or hurl'd on Gudgeon's body ; To wit, his gold-lac' d hat and hair on, And clothes which he had there and then on; To wit, twelve jackets, twelve surtouts, Twelve pantaloons, twelve pairs of boots, Which did thereby much discompose Said Gudgeon's mouth, eyes, ears and nose, Back, belly, neck, thighs, feet and toes, By which, and other wrongs unheard of, His clothes were spoil'd, and life despair'd of,' To all these counts the plea I find, Is son assault, and issue's join'd — Such, Gentlemen, is word for word The story told on this record. — This fray was at a feast or revel, At Toadland, on the Bedford Level, Giv'n, as was usual at elections, By Gudgeon to his fen-connections ; They'd had a meeting at the Swan The day before the poll began, And thence adjoun'd it to make merry THE PLEADER S GUIDE. 45 With Mr. Coot, who keeps the ferry. Now Gull, who always thrusts his nose, Wherever John-a-Gudgeon goes, To this same feast without suspicion, Unask'd, it seems, had gain'd admission ; Coot had just finish'd an oration, And Gudgeon, with much approbation, Was singing a-ri election ballad, Penn'd by th' ingenious Dr. Mallard, (That orthodox and learned writer, Who bids so fairly for a mitre ;) When Gull, who heard this song or sonnet,, With Mr. Gudgeon's comments on it, This Gull, (whose very name denoted The character for whom he voted) Flourish' d his knuckles in derision, And with much promptness of decision, Began to pummel and belabor The short ribs of his peaceful neighbor, But .first with tweaks assail'd his nose, And interspers'd said tweaks with blows ; Gudgeon explain'd, and Gull recourse had To other tweak like tweak aforesaid — G-d knows, a milder, gentler creature Never was seen in human nature, Than the forbearing and well-judging, Discreet, and gentle John-a-Gudgeon; And Gentlemen, there's no man's face is Better received at all your races, 46 the pleader's guide. Wells, mouths, and water-drinking places ; "Was Alderman, and Mayor elect; Once had the honor to be prick'd For Sheriff, which important station He gain'd without solicitation, — No doubt his Lordship recognizes The coat he had on at assizes, A velveret, genteel and neat. With tabby lin'd, and frogs complete, Made for Squire Gudgeon's wedding ball, When first he came to Webfoot Hall, An ancient seat in th' Isle of Ely, Where all the Gudgeons live genteely, — . Which coat so trimm'd, said Gull Did spoil, besmear, and disannul, With the most villainous libations Of the most vile of vile potations ; For proof, we'll call Gull's worthy friend, Who keeps a School at Toadland's End, One Simon Trout, a pious pastor, And Dr. Tench, who spread the plaster, And Farmer Chubb, an honest yeoman, Who speaks the truth and cares for no man, » But above all, to prove our case, We'll show you Mr. Gudgeon's face, Where ev'ry injur'd feature pleads 'Gainst John-a-Gull's atrocious deeds , What facts, what species of excuse, My Brother Bore'um will produce, THE PLEADER'S GUIDE. 47 What case he'll make, and how maintain His plea of son assault demesne, Wise as he looks, you may relie on't, He knows no more than his own client ; Tis'for you, Gentlemen, to say What damage John-aGull shall pay ; "lis in your wisdom, Gentlemen, to pull So wide the purse-strings of this factious Gull, That he no more may triumph and parade The streets of Cambridge in a blue cockade, Singing the praises of a British jury, From the pig-market to the petty-cury ; But back to Toadland as he bends his way, Whoe'er beholds him to his friend may say, Mark, how the jury have rever'd the laws, Giv'n the just judgment in the Gudgeon cause, Taught the proud Gull to sing an humbler strain, And sent him waddling to his bogs again. 48 THE PLEADER S GUIDE. LECTURE VIII. Bother, whispers his Atty. Atty. Bother. Crier. Trout. Examination of Witnesses for the Plaintiff — Mr. Simon Trout, dissenting Preacher, and Schoolmaster, ex- amined by Mr. Bother'um — Cross-examined by Mr. Bore'um — Evidence of Dr. Tench, Surgeon and Apothecary. Pray are our witnesses all here, Our scaly friends from Toadland Mere ? Here's Dr. Tench, and Preacher Trout, And Farmer Chubb will come, no doubt, Call Simon Trout— We'll first begin With Mr. Trout, — Come swear him in. Here, Simon, you shall — {silence there) The truth, and all the truth declare, And nothing but the truth be willing, To speak, so help you G-d, — (a shilling,) Trout's sworn. — (Bother.) Pray Sir, did you attend Th' election feast at Toadland's End ? The feast I mean before the poll-day ? Yes Sir, I tarried there the whole day, Albeit I never go to dinners, To feast with publicans and sinners, And even it hath been my rule • . THE pleader's guide. 49 On no account to quit my school, As in my absence, I'm aware Satan will not be idle there ! I own, Sir, I for once transgress'd it, The inward light so strongly press'd it, A call I never could withstand ! But touching the affair in hand, As it regards the late election, I've but a feeble recollection ; Bore. ) (Your inward light 'must fail you greatly, aside, j If you've forgot what pass'd so lately. — ) Trout. There was a squabble, and some oaths, A.nd liquor spilt on plaintiff's clothes, Squire Gudgeon's face was bruis'd, I've heard, His Sunday raiment much besmear'd, And Dr. Tench inform'd me (Bore.) Pooh ! — Dont tell us, Sir, what Tench told you — Bother. Stop, Mr. Bore'um, by your leave, — Bore. My Lord, I humbly do conceive — Bother. These interruptions, I declare, Would almost make a parson swear — Bore. Do Mr. Bother'um let me speak — Bother Now he's begun he'll talk this week — Bore. Well Mr. Trout, so all you know then, Is what you've heard of plaintiff's clothing ? All hear-say is it ? — (Trout) No, Sir, no,— [ lifted up my eyes, and lo ! 50 THE PLEADER'S GUIDE. I did behold, in wrath, Squire Gull Smite Mr. Gudgeon on the skull ; And Dr. Tench, a wise and wary, And learned Fen-Apothecary, Doubted he said {Bore.) Do stop my friend, Can not I make you comprehend ? — Bother. Come, Sir, we wont detain you — Gull You're sure smote Gudgeon on the skull, Trout. He did. Cross-examined by Mr. Bore'um. ( Bore.) Stay, Mr. what-d'ye-call him, Tou say you saw Gull bruise and maul him, Trout Yes. (Bore.) And you never go to dinners, To feast with publicans and sinners ? — What, was the bludgeon pretty thick? Trout. I can n °t sa y I saw ^e stick. — Bore. Stay, Sir, I think that you're a teacher, A spiritual pastor, and a preacher, Now recollect you're on your oath, Sir, Mind you do justice to them both, Sir, Was there no boxing match ? — speak out — Nothing like fighting, Master Trout? _ Why verily much strife arose, Divers and sundry kinds of blows, Much provocation too, albeit, THE PLEADER'S GUIDE. 51 I was not there at first to see it ; A song was humm'd, which caus'd dissension, And seem'd of heathenish invention, Which, tho' it lack'd both wit and keeness, Savour'd of malice and uncleanness, And, sung with loud vociferation, Rous'd the defendant's indignation, Who seem'd to think it cast reflections On him and all the Gull-connections : . This song, tho' spiritless, and dull, Bid sorely trouble Mr. Gull ; And oft repeated in his ear, Did cause him to blaspheme and swear, 'Till, God forgive him for't, he rose, And seizing on Squire Gudgeon's nose, He squeez'd it 'twixt his thumb and finger, Stampt on the song, and d — d the singer ; Now when much strife and wrath ensued, Both which I always have eschew'd, I fled — but soonreturn'd to pray That Heaven would stop this sinful fray, And we like brethren might agree, And live in peace and unity — Bother Swear Dr. Tench — {Crier.) Here, Doctor, look — Take off your glove, and kiss the book — The Doctor's sworn. {Bother.) Good Dr. Tench, Pray tell the Jury and the Bench, 52 the pleader's guide. All that you saw and heard that day — Tmch. Sir, I know nothing of the fray, — I was call'd in at the conclusion, T' inspect a vertical contusion, Gudgeon was then without his shirt,' His body much besmear'd with dirt ; There was an ugly awkward cut Ran quite athwart the occiput, He'd have been comatose, I'm sure, And far beyond my skill to cure, Had I been call'd ten minutes later — I trembled for the dura mater : The cuticle, or outward skin, Portended something wrong within — The fauces in a sad condition ! Betwixt the nares no partition ! — But both so forc'd into conjunction, Th' olfactories declin'd their function, Some teeth were broke, and some were lost ; The incisores suffer' d most, Much mischief done to the molares — And, what a very strange affair is, Not the least symptom could I see Of denies sapientice. In all my pugilistic cases, At feasts, elections, fairs, and races, A worse than this I never met, Nor ever saw an instance yet, In all that branch of my profession, THE PLEADER'S GUIDE. 53 Where blows have made so much impression ! Optics, my Lord, a perfect jelly ! One large contusion on the belly, Two on the costce, and as I guess A kick upon the os coccygis, Had caus'd a tuber, or a bump Around the region of the rump. Bother. You took some blood, Sir, from him ? — {Tench) Plenty— Phlebotomiz'd him ounces twenty ; Order'd in lieu, one ounce, good weight, Magnesice vitriolat : Subinde gave when faint or sick, sir, My renovating fen-elixir, Then clapp'd my patent plaster on, My genuine ichthupharmacon. Bother. Sir of your practice we've no doubt, — Bore. So much for Tench, — come hand him out. 54 the pleader's guide. LECTURE IX. Trial continued — Examination of Farmer Chubb, by Mr. Bother'um — Cross-Examined by Mr. Bore'um — Conclusion of the Evidence for the Plaintiff. Well, who's your next ? {Bother.) Set Farmer Chubb up, Chubb's recollection I must rub up. So, Mr. Chubb, I see 'tis you; You live at Toadland's End ? {Chull,) I do. BotTier. You din'd at the election meeting ? ChvM. Yes, sure I did, I loves good eating. Bore. Was there a bickering where you sat ? Chubb. No, we had no such dish as that. Sore. No broil, no bickering, no fracas? Chubb. No, no such dishes as I saw, • ' There might be broils for ought I knew, To please such gentlemen as you. Why Chubb, you must have seen at least These parties at the Toadland feast, Was any thing by plaintiff said, Which to such lengths defendant led, And caus'd an act so indecorous As that which now appears before us ? Bore. THE PLEADER'S GUIDE. 55 Vhubb. Anan ? (Bother.) Why surely you must know Whether these men had words or no ? Chabb. Words ! aye, they'd words enough, God knows, Besides some pretty tightish blows. Court. Hark ye, my friend, was Gull d'ye think Disguis'd, or much inflam'd with drink ? Chubb. Neither — as sober as a judge, Th'of to be sure he seem'd to grudge, Being as how his coat was shabby, Squire Gudgeon's velvet, lin'd with tabby, But as for drink, my Lord, he chose To fling all that o'er plaintiff's clothes; My Lord, I wish to be going, For 'tis a charming time for sowing. — Bother. Stay, Mr. Chubb, speak out, Sir, do, Did Gull beat Gudgeon ? is that true ? Chubb. Beat him ! he beat him black and blue ! I never see'd a prettier fight, So full of malice like, and spite. Bore. A fight ! Ho, ho ! the truth's come out, A fair set-to, a boxing bout? — Bother. And this you positively swear ? Chubb. Aye sure, why Simon Trout was there ; Simon, for all he seems so shy, Please you my Lord, knows more than I. Bother. How say you ? did not Trout advise 'Gainst such unchristian exercise ? Chubb. Yes, after praying and beseeching, 56 THE pleader's guide. Simon stood up, and fell a preaching, And like the picture of St. Paul, Began to sermonize us all, Bade us hold fast of what was good — And well that doctrine understood, For with the tankard he made bold, And seem'd main loth to quit his hold. Bother. What, did he preach, d'ye say, and stand With this same tankard in his hand ? Chubb. Aye sure, he first threw back his wig, And took a pretty handsome swig, Then held the tankard up to view, All one as you your brief may do, Saying, that wicked stuff within Did cause a multitude of sin. Bother. Why Chubb, now, on your oath, man, say, Did not this preaching stop the fray ? After this speech of Simon Trout, Had you, or not, a boxing-bout? Chabb Why yes — I scorns to tell a lie, Trout says to me, as I stood by, Can'st keep a secret ? yes, says I, Why then says he ; Chubb, 'tis not right, That we should lose so sweet a fight, Chubb, since so good a man you're reckon'd, I wish that you'd be Gudgeon's second, If you just clap him on the shoulder, And say you'll be his bottle-holder, 'Twill cheer his heart, and stir his blood, THE PLEADER'S GUIDE. 57 And make him fight, and do him good ; I long to see him doff his wig, And clench his fists like Ben the Big ; And if you'll make the champions strip, And lend my drunken clerk your whip, D-m-me, if he sha'nt round the ring go, While I hold stakes, and guard the stingo. Bother. This is our case, my Lord, we've done- — So Both'rum spoke, and Bore'um thus begun. 68 THE pleader's guide. LECTURE X. The Defendant's Case — Mr. Bore'um's Speech — Inter- rupted by Mr. Bother'iim — His Law Argument — Cites Cases — Answered by Mr. Bore'um — Conclu- sion of Mr. Bore'um's Speech, and of the Arguments on both sides — End of the 10th Lecture of the 2d Book, and the last of the Pleader's Guide. Bore. g muc h f or facts — the proud array Of facts, display 'd in proof this day — I say, if ever there existed, A cause wherein the facts were twisted, Distorted, warp'd, I say distorted, And every witness pack'd and sorted, And tutor' d, Gentlemen, t' outface The truth, and patch a rotten case 'Tis this — that skilful Fen-physician So fully prov'd his erudition, The dire effects of the disaster, Th' elixir, and the patent plaster, I thought my learned friend, for one, Would try this ichthupharmacon ; I waited as his case was lame, 1 To hear how he'd apply the same, THE PLEADER'S GUIDE. 59 And put in proof that famous drench, Prescrib'd by learned Dr. Tench — Tench, I must own, took blood enough, And show'd his learning quantum suff. ; But, as for that same Simon Trout, At once so thirsty and devout, ' There was some method and connection In that same preacher's recollection ; He ne'er with publicans had fed, By inward light alone was led ; \ He never from his school would venture, Lest Satan at the door should enter, Defeat at once the spiritual pastor, And get the whip-hand of the master ; Trout's story was a string of fictions, Self-praises, and self-contradictions ; But, not to waste your precious moments, With idle and superfluous comments, Chubb swore, on cross-examination, Gudgeon gave Gull great provocation, And both agreed to strip in buff, And fight it out at frsti-cuff. Now fighting's in itself an action That gives both parties satisfaction, A secret joy. the bruiser knows In giving and receiving blows ; An inward transport, only tasted By those who've thoroughly been basted ; I'll prove it to my learned brother 60 THE PLEADER'S GUIDE. These Gentlemen oblig'd each other, And each exerted his endeavors To prove no nigg.,rd of his favors ; For whose'er Gull's face peruses, Will fairly own, that nobler bruises, More scientific, more severe, No fighting baronet, or peer, Tho' pupils of th' illustrious Johnson, E'er laid his adversary's sconce on. In war, as well as peace, we see A kind of reciprocity, A sort of mutual requiting, Which both the parties take delight in. If both are drubb'd, why both are quiet; Volenti non injuria fit ; It is a dammum, as we say, A dammum ubsq . injuria. Now, for a man, my Lord, to come, A vile election song to hum, And, lor a man, my Lord, to go For to gesticulate; and so As I was saying, for to go Bother. My Lord, I feel no small remorse In - checking Mr. Bore'um's course, But as 'twill cut this matter short, And save your Lordship's time in court, Be it for argument admitted That both the combatants were pitted, Parker Chief Baron held, that bruising, THE PLEADER'S GUIDE. 61 Deem'd so delightful and amusing, Was an illegal dang'rous science, And practis'd in the law's defiance, But, as my friend is in the dark It may be proper to remark, The case is Boulter versus Clark — The cases in the books are plenty — I'll just beg leave to quote you twenty, Some special verdicts, and demurrers From Durnford, Bosanquet, and Burrows ; Some late decisions of the courts, In point, my Lord, from Term Reports ; All books for solid information, Held in the highest estimation. But, stay, perhaps it may suffice, if I cite one case, and that's decisive — A case he little dreams upon, Mathew, my Lord, and Ollerton — Where one a beating underwent By his own licence and consent, I mean, My Lord,that famous beating, In Comberbach, 218, (two hundred eighteen) Court held, and 'twas understood, The licence void, the beating good — • Court. Associate, hand me the record — Well, Mr. Bore'um— ? {Bore.) Hem — my Lord ? Court What say you to the cases quoted? — 2ore. My Lord, these cases I have noted ; 62 THE pleader's guide. Mere nisiprius cases, loose, Loose law, my Lord, quite out of use — My learned friend is fond of citing Old cases, which he's seldom right in ? Settling the law as some great men do, On points reported arguendo, That Case in Coinberbach, my Lord, Arose in debt upon awards And such a case as that, no doubt, Is what I little dream'd about — What we rely on, is a saying Of Dalton's touching cudgel-playing; Two play at cudgels for the nonce, For pastime, and a broken sconce : A breaks B's head, B makes assault on A's nose, " No battery, quoth Dalton" — Now, if the law of bloody noses, And broken heads, as he supposes, And states in chapter twenty-second, Good law at single-stick is reckon'd, I see no reason for refusing Same law to boxing and to bruising — Besides, my Lord, our special plea Is son assault demesne, d'ye see, Chubb swore to threat'nings, provocations, Loud oaths, and fierce gesticulations, Such oaths — (these spectacles, gods rot'em, Havegall'd my nose from top to bottom) Such oaths — it shocks me to rehearse 'em, THE PLEADER'S GUIDE. 63 ( Why now they're tumbled down, gods curse' em) In short, what Chubb both heard and saw Amounted to assault in law, Gudgeon assaulted, and attach'd My friend, in law, if not in fact, And this is law his Lordship knows. But now for instance, we'll suppose The simple Case of A and B, A is my finger, do ye see, My adversary's button, B ; Now, if my finger A I put on My learned adversary's button, It may be trespass, or a plea Of son assault demesne for B ; And if a little I should shake it, And pull the button off, I take it It would be batt'ry, and we say That B was beat and bruis'd by A ; That A said B did strike and wound, And in the pleadings 'twould be found A knock'd B down upon the ground. And is not this a sound defence ? Is it not law, and common sense ? 'Tis for you, Gentlemen, to say , l Which of these two began the fray ; But a more scandalous transaction, Paltry, vexatious cause of action, Or a more lame, more flat, more stale, 64 THE pleader's guide. Dull and unprofitable tale, I never met in all my reading, In the whole course of law-proceeding, In study, practice, or in pleading, Than this same woful trumpt-up story, My learned brother has just laid before ye. — And now, my Lord, I say no more, My Lord — than what I said before — But thus much I'll make bold- to say, If all that I've advanc'd this day, Be not good law, my Lord, and sound As e'er was broach'd on legal ground, Soon as to chambers I return, All my black-letter'd books I'll burn. " Hold, hold," quoth Both'rum, 'twould be cruel To turn your fixtures into fuel, Those precious tomes, with cobwebs spread, Which sleep so peaceful o'er your head ! E'er yet that sentence is decreed 'em, Do read 'em, Mr. Bore'um, read 'em." — Thus they, as when attun'd to sprightly strain, Bass-viols grumble, and bassoons complain, Or humble bees their drowzy notes prolong, With drones contending in alternate song, Incontinently held their vain contest In taunting mirth, and spleen-provoking jest ; 'Till tir'd at length, when each had rack'd his brain, THE PLEADER'S GUIDE. 65 Oft rose and hem'd, and hem'd, and rose again, As those fam'd heroes on the Phrygian shore, Ajax, and bold Priamides of yore, Turn'd peaceful friends, when they could fight no more, These gen'rous chiefs, resolv'd awhile to end The doubtful conflict, and the suit suspend, Both lovingly agreed at once to draw A special case, and save the point in law, That so the battle, neither lost nor won, Continued, ended, and again begun Might still survive, and other suits succeed, For future heroes of the gown to lead, And future bards in loftier verse to plead.. FINIS. Wm JSKBS