MINUTE study of my fellow-creatures has revealed to me that there are many intelligent persons who think that a suit at law commences in court. This is not so. Many suits are fought and decided by the special pleaders, and so never come into court; and, as a stiff encounter of this kind actually took place in Hardie v. Hardie, a word of prefatory explanation may be proper. Suitors come into court only to try an issue: an issue is a mutual lie direct: and towards this both parties are driven upon paper by the laws of pleading, which may be thus summed: 1. Every statement of the adversary must either be contradicted flat, or confessed and avoided: “avoided” means neutralised by fresh matter. 2. Nothing must be advanced by plaintiff which does not disclose a ground of action at law. 3. Nothing advanced by defendant, which, if true, would not be a defence to the action. These rules exclude in a vast degree the pitiable defects and vices that mark all the unprofessional arguments one ever hears; for on a breach of any one of the said rules the other party can demur; the demurrer is argued before the judges in Banco, and, if successfully, the faulty plaint or faulty plea is dismissed, and often of course the cause won or lost thereby, and the country saved the trouble, and the suitors the expense of trying an issue.
So the writ being served by Plt.‘s attorney, and an appearance put in by Deft.‘s, the paper battle began by Alfred Hardie, through his attorney, serving on Deft.‘s attorney “THE DECLARATION.” This was drawn by his junior counsel, Garrow, and ran thus, after specifying the court and the date:
Middlesex to wit Alfred Hardie by John Compton his attorney sues Thomas Hardie For that the Deft, assaulted Plt. gave him into custody to a certain person and caused him to be imprisoned for a long space of time in a certain place to wit a Lunatic Asylum whereby the Plt. was much inconvenienced and suffered much anguish and pain in mind and body and was unable to attend to his affairs and was injured in his credit and circumstances.
And the Plt. claims L. 5000.
Mr. Compton conveyed a copy of this to Alfred, and said it was a sweet “declaration.” “What,” said Alfred, “is that all I have suffered at these miscreants’ hands? Why, it is written with an icicle.”
Mr. Compton explained that this was the outline: “Counsel will lay the colours on in court as thick as you like.”
The defendant replied to the above declaration by three pleas.
By statute 8 & 9 Vic., c. 100, s. 105.
1. The Deft. by Joseph Heathfield his attorney says he is not guilty. 2. And for a further Plea the Deft, says that before and at the time of the alleged imprisonment Plt, was a person of unsound mind and incompetent to take care of himself and a proper person to be taken care of and detained and it was unfit unsafe improper and dangerous that he should be at large thereupon the Deft, being the uncle of the Plt. and a proper person to cause the Plt. to be taken charge of under due care and treatment in that behalf did cause the Plt. to be so taken charge of and detained under due care and treatment, &c. &c.
The third plea was the stinger, but too long to cite verbatim; it went to this tune, that the plaintiff at and before the time &c. had conducted himself like a person of unsound mind &c. and two certificates that he was insane had been given by two persons duly authorised under the statute to sign such certificates, and the defendant had believed and did bona fide believe these certificates to be true, &c. &c.
The first of these pleas was a mere formal plea, under the statute.
The second raised the very issue at common law the plaintiff wished to try.
The third made John Compton knit his brows with perplexity. “This is a very nasty plea,” said he to Alfred: “a regular trap. If we join issue on it we must be defeated; for how can we deny the certificates were in form; and yet the plaguy thing is not loose enough to be demurred to? Colls, who drew these pleas for them?”
“Mr. Colvin, sir.”
“Make a note to employ him in our next stiff pleading.”
Alfred was staggered. He had thought to ride rough-shod over defendant — a common expectation of plaintiffs; but seldom realised. Lawyers fight hard. The pleas were taken to Garrow; he said there was but one course, to demur to No. 3. So the plaintiff “joined issue on all the defendant’s pleas, and as to the last plea the plaintiff said the same was bad in substance.” Defendant rejoined that the same was good in substance, and thus Hardie v. Hardie divided itself into two cases, a question of law for the judges, and an issue for the mixed tribunal loosely called a jury. And I need hardly say that should the defendant win either of them he would gain the cause.
Postponing the history of the legal question, I shall show how Messrs. Heathfield fought off the issue, and cooled the ardent Alfred and sickened him of law.
In theory every Englishman has a right to be tried by his peers: but in fact there are five gentlemen in every court, each of whom has by precedent the power to refuse him a jury, by simply postponing the trial term after term, until the death of one of the parties, when the action, if a personal one, dies too; and, by a singular anomaly of judicial practice, if a slippery Deft. can’t persuade A. or B., judges of the common law court, to connive at what I venture to call
THE POSTPONEMENT SWINDLE,
he can actually go to C., D., and B., one after another, with his rejected application, and the previous refusal of the other judges to delay and baffle justice goes for little or nothing; so that the postponing swindler has five to one in his favour.
Messrs. Heathfield began this game unluckily. They applied to a judge in chambers for a month to plead. Mr. Compton opposed in person, and showed that this was absurd. The judge allowed them only four days to plead. Issue being joined, Mr. Compton pushed on for trial, and the cause was set down for the November term. Towards the end of the term Messrs. Heathfield applied to one of the puisne judges for a postponement, on the ground that a principal witness could not attend. Application was supported by the attorney’s affidavit, to the effect that Mr. Speers was in Boulogne, and had written to him to say that he had met with a railway accident, and feared he could not possibly come to England in less than a month. A respectable French doctor confirmed this by certificate. Compton opposed, but the judge would hardly hear him, and postponed the trial as a matter of course; this carried it over the sittings into next term. Alfred groaned, but bore it patiently; not so Dr. Sampson: he raged against secret tribunals: “See how men deteriorate the moment they get out of the full light of publeecity. What English judge, sitting in the light of Shorthand, would admit ‘Jack swears that Gill says’ for legal evidence. Speers has sworn to no facks. Heathfield has sworn to no facks but th’ existence of Speer’s hearsay. They are a couple o’ lyres. I’ll bet ye ten pounds t’ a shilling Speers is as well as I’m.”
Mr. Compton quietly reminded him there was a direct statement — the French doctor’s certificate.
“A medical certificut!” shrieked Sampson, amazed. “Mai — dearr — sirr, a medical certificut is just an article o’ commerce like an attorney’s conscience. Gimme a guinea and I’ll get you sworn sick, diseased, disabled, or dead this minute, whichever you like best.”
“Come, doctor, don’t fly off: you said you’d bet ten pounds to a shilling Speers is not an invalid at all. I say done.”
“How will you find out?”
“How? Why set the thief-takers on um, to be sure.”
He wrote off to the prefect of police at Boulogne, and in four days received an answer headed “Information in the interest of families.” The prefect informed him there had been no railway accident: but that the Sieur Speers, English subject, had really hurt his leg getting out of a railway carriage six weeks ago, and had kept his room some days; but he had been cured some weeks, and going about his business, and made an excursion to Paris.
On this Compton offered Sampson the shilling. But he declined to take it. “The lie was self-evident,” said he; “and here’s a judge wouldn’t see’t, and an attorney couldn’t. Been all their lives sifting evidence, too. Oh the darkness of the profissional mind!”
The next term came. Mr. Compton delivered the briefs and fees, subpoenaed the witnesses, &c., and Alfred came up with a good heart to get his stigma removed by twelve honest men in the light of day: but first one case was taken out of its order and put before him, then another, till term wore near an end. Then Messrs. Heathfield applied to another judge of the court for a postponement. Mr. Richard Hardie, plaintiff’s father, a most essential witness, was ill at Clare Court. Medical certificate and letter herewith.
Compton opposed. Now this judge was a keen and honourable lawyer, with a lofty hatred of all professional tricks. He heard the two attorneys, and delivered himself to this effect, only of course in better legal phrase: “I shall make no order. The defendant has been here before on a doubtful affidavit. You know, Mr. Heathfield, juries in these cases go by the plaintiff’s evidence, and his conduct under cross-examination. And I think it would not be just nor humane to keep this plaintiff in suspense, and civiliter mortuum, any longer. You can take out a commission to examine Richard Hardie.”
To this Mr. Compton nailed him, but the commission took time; and while it was pending, Mr. Heathfield went to another judge with another disabled witness: Peggy Black. That naive personage was nursing her deceased sister’s children — in an affidavit: and they had scarlatina — surgeon’s certificate to that effect. Compton opposed, and pointed out the blot. “You don’t want the children in the witness-box,” said he: “and we are not to be robbed of our trial because one of your witnesses prefer nursing other people’s children to facing the witness-box.”
The judge nodded assent. “I make no order,” said he.
Mr. Heathfield went out from his presence and sent a message by telegraph to Peggy Black. “You must have Scar. yourself, and telegraph the same at once: certificate by post.”
The accommodating maiden telegraphed back that she had unfortunately taken scarlatina of the children: medical certificate to follow by post. Four judges out of the five were now awake to the move. But Mr. Heathfield tinkered the hole in his late affidavit with Peggy’s telegram, and slipped down to Westminster to the chief judge of the court, who had had no opportunity of watching the growth and dissemination of disease among Deft.‘s, witnesses. Compton fought this time by counsel and with a powerful affidavit. But luck was against him. The judge had risen to go home: he listened standing; Compton’s counsel was feeble; did not feel the wrong. How could he? Lawyers fatten by delays of justice, as physicians do by tardy cure. The postponement was granted.
Alfred cursed them all, and his own folly in believing that an alleged lunatic would be allowed fair play at Westminster, or anywhere else. Compton took snuff, and Sampson appealed to the press again. He wrote a long letter exposing with fearless irony the postponement swindle as it had been worked in Hardie v. Hardie: and wound up with this fiery peroration:
“This Englishman sues not merely for damages, but to recover lost rights dearer far than money, of which he says he has been unjustly robbed: his right to walk in daylight on the soil of his native land without being seized and tied up for life like a nigger or a dog; his footing in society; a chance to earn his bread; and a place among mankind: ay, among mankind; for a lunatic is an animal in the law’s eye and society’s, and an alleged lunatic is a lunatic till a jury clears him.
I appeal to you, gentlemen, is not such a suitor sacred in all wise and good men’s minds? Is he not defendant as well as plaintiff? Why, his stake is enormous compared with the nominal defendant’s; and, if I know right from wrong, to postpone his trial a fourth time would be to insult Divine justice, and trifle with human misery, and shock the common sense of nations.”
The doctor’s pen neither clipped the words nor minced the matter, you see. Reading this the water came into Alfred’s eyes. “Ah, staunch friend,” he said, “how few are like you! To the intellectual dwarfs who conspire with my oppressors, Hardie v. Hardie is but a family squabble. Parvis omnia parva.” Mr. Compton read it too; and said from the bottom of his heart, “Heaven defend us from our friends! This is enough to make the courts decline to try the case at all.”
And, indeed, it did not cure the evil: for next term another malade affidavitaire was set up. Speers to wit. This gentleman deposed to having come over on purpose to attend the trial; but having inadvertently stepped aside as far as Wales, he lay there stricken with a mysterious malady, and had just strength to forward medical certificate. On this the judge in spite of remonstrance, adjourned Hardie v. Hardie to the summer term. Summer came, the evil day drew nigh: Mr. Heathfield got the venue changed from Westminster to London, which was the fifth postponement. At last the cause came on: the parties and witnesses were all in court, with two whole days before them to try it in.
Dr. Sampson rushed in furious. “There is some deviltry afloat,” said he. “I was in the House of Commons last night, and there I saw the defendant’s counsel earwigging the judge.”
“Nonsense,” said Mr. Compton, “such suspicions are ridiculous. Do you think they can talk of nothing but Hardie v. Hardie?”
“Mai — dearr sirr — my son met one of Heathfield’s clerks at dinner, and he let out that the trile was not to come off. Put this and that together now.”
“It will come off,” said Mr. Compton, “and in five minutes at farthest.”
In less than that time the learned judge came in, and before taking his seat made this extraordinary speech:
“I hear this cause will take three days to try; and we have only two days before us. It would be inconvenient to leave it unfinished; and I must proceed on circuit the day after tomorrow. It must be a remanet: no man can do more than time allows.”
Plaintiff’s counsel made a feeble remonstrance; then yielded. And the crier with sonorous voice called on the case of Bread v. Cheese, in which there were pounds at stake, but no principle. Oh, with what zest they all went into it; being small men escaping from a great thing to a small one. Never hopped frogs into a ditch with more alacrity. Alfred left the court and hid himself, and the scalding tears forced their way down his cheeks at this heartless proceeding: to let all the witnesses come into court at a vast expense to the parties: and raise the cup of justice to the lips of the oppressed, and then pretend he knew a trial would last more than two days, and so shirk it. “I’d have made that a reason for sitting till midnight” said poor Alfred, “not for prolonging a poor injured man’s agony four mortal months.” He then prayed God earnestly for this great postponer’s death as the only event that could give him back an Englishman’s right of being tried by his peers, and so went down to Oxford broken-hearted.
As for Sampson he was most indignant, and said a public man had no business with a private ear: and wanted to appeal to the press again: but the doughty doctor had a gentle but powerful ruler at home, as fiery houses are best ruled by a gentle hand. Mrs. Sampson requested him to write no more, but look round for an M. P. to draw these repeated defeats of justice to the notice of the House. Now there was a Mr. Bite, who had taken a prominent and honourable part in lunacy questions; headed committees and so on: this seemed the man. Dr. Sampson sent him a letter saying there was a flagrant case of a sane man falsely imprisoned, who had now been near a year applying for a jury, and juggled out of this constitutional right by arbitrary and unreasonable postponements: would Mr. Bite give him (Dr. Sampson) ten minutes and no more, when he would explain the case and leave documentary evidence behind him for Mr. Bite to test his statement. The philanthropical M. P. replied promptly in these exact words:
“Mr. Bite presents his compliments to Dr. Sampson to state that it is impossible for him to go into his case, nor to give him the time he requests to do so.”
Sampson was a little indignant at the man’s insolence; but far more at having been duped by his public assumption of philanthropy. “The little pragmatical impostor!” he roared. “With what a sense o’ relief th’ animal flings off the mask of humanity when there is no easy eclat to be gained by putting’t on.” He sent the philanthropical Bite’s revelation of his private self to Alfred, who returned it with this single remark: “Homunculi quanti sunt!”
Dishonest suitors all try to postpone; but they do not gain unmixed good thereby. These delays give time for more evidence to come in; and this slow coming and chance evidence is singularly adverse to the unjust suitor. Of this came a notable example in October next, and made Richard Hardie determined to precipitate the trial, and even regret he had not fought it out long ago.
He had just returned from consulting Messrs. Heathfield, and sat down to a nice little dinner in his apartments (Sackville Street), when a visitor was announced; and in came the slouching little figure of Mr. Barkington, alias Noah Skinner.
DIAMOND CUT DIAMOND.
Mr. Hardie suppressed a start, and said nothing. Skinner bowed low with a mixture of his old cringing way, and a certain sly triumphant leer, so that his body seemed to say one thing, and his face the opposite. Mr. Hardie eyed him, and saw that his coat was rusty, and his hat napless: then Mr. Hardie smelt a beggar, and prepared to parry all attempts upon his purse.
“I hope I see my old master well,” said Skinner coaxingly.
“Pretty well in body, Skinner; thank you.”
“I had a deal of trouble to find you, sir. But I heard of the great lawsuit between Mr. Alfred and you, and I knew Mr. Heathfield was your solicitor; so I watched at his place day after day: and at last you came. Oh, I was so pleased when I saw your noble figure; but I wouldn’t speak to you in the street for fear of disgracing you. I’m such a poor little guy to be addressing a gentleman like you.”
Now this sounded well on the surface, but below there was a subtle something Mr. Hardie did not like at all: but he took the cue, and said, “My poor Skinner, do you think I would turn up my nose at a faithful old servant like you? Have a glass of wine with me, and tell me how you have been getting on.” He went behind a screen and opened a door, and soon returned with a decanter, leaving the door open. Now in the next room sat, unbeknown to Skinner, a young woman with white eyelashes, sewing buttons on Mr. Hardie’s shirts. That astute gentleman gave her instructions, and important ones too, with a silent gesture; then reappeared and filled the bumper high to his faithful servant. They drank one another’s healths with great cordiality, real or apparent. Mr. Hardie then asked Skinner carelessly, if he could do anything for him. Skinner said, “Well, sir, I am very poor.”
“So am I, between you and me,” said Mr. Hardie confidentially; “I don’t mind telling you; those confounded Commissioners of Lunacy wrote to Alfred’s trustees, and I have been forced to replace a loan of five thousand pounds. That Board always sides with the insane. That crippled me, and drove me to the Exchange: and now what I had left is all invested in time-bargains. A month settles my fate: a little fortune, or absolute beggary.”
“You’ll be lucky, sir, you’ll be lucky,” said Skinner cheerfully; “you have such a long head; not like poor little me; the Exchange soon burnt my wings. Not a shilling left of the thousand pounds, sir, you were so good as to give me for my faithful services. But you will give me another chance, sir, I know; I’ll take better care this time.” Mr. Hardie shook his head sorrowfully, and said it was impossible. Skinner eyed him askant, and remarked quietly, and half aside, “Of course, I could go to the other party: but I shouldn’t like to do that. They would come down handsome.”
“What other party?”
“La, sir, what other party? Why Mrs. Dodd’s, or Mr. Alfred’s; here’s the trial coming on, you know, and of course if they could get me to go on the box and tell all I know, or half what I know, why the judge and jury would say locking Mr. Alfred up for mad was a conspiracy.”
Mr. Hardie quaked internally: but he hid it grandly, and once more was a Spartan gnawed beneath his robe by this little fox. “What,” said he sternly, “after all I and mine have done for you and yours, would you be so base as to go and sell yourself to my enemies?”
“Never, sir,” shouted Skinner zealously: then in a whisper, “Not if you’ll make a bid for me.”
“How much do you demand?”
“Only another thousand, sir?”
“A thousand pounds!”
“Why, what is that to you, sir? you are rich enough to buy the eighth commandment out of the tables of ten per cent.: and then the lawsuit, Hardies versus Hardies!”
“You have spoken plainly at last,” said Mr. Hardie grimly. “This is extorting money by threats. Do you know that nothing is more criminal, nor more easy to punish? I can take you before a magistrate, and imprison you on the instant for this attempt. I will, too.”
“Try it,” said Skinner coolly. “Where’s your witness?”
“Behind that screen.”
Peggy came forward directly with a pen in her hand. Skinner was manifestly startled and disconcerted. “I have taken all your words down, Mr. Skinner,” said Peggy softly; then to her master, “Shall I go for a policeman, sir?”
Mr. Hardie reflected. “Yes,” said he sternly: “there’s no other course with such a lump of treachery and ingratitude as this.”
Peggy whipped on her bonnet.
“What a hurry you are in,” whined Skinner: “a policeman ought to be the last argument for old friends to run to.” Then, fawning spitefully, “Don’t talk of indicting me, sir,” said he; “it makes me shiver: why how will you look when I up and tell them all how Captain Dodd was took with apoplexy in our office, and how you nailed fourteen thousand pounds off his senseless body, and forgot to put them down in your balance-sheet, so they are not whitewashed off like the rest.”
“Any witnesses to all this, Skinner?”
“Well; your own conscience for one,” said Skinner.
“He is mad, Peggy,” said Mr. Hardie, shrugging his shoulders. He then looked Skinner full in the face, and said, “Nobody was ever seized with apoplexy in my office. Nobody ever gave me L. 14,000. And if this is the probable tale with which you come here to break the law and extort money, leave my house this instant: and if ever you dare to utter this absurd and malicious slander, you shall lie within four stone walls, and learn what it is for a shabby vagabond to come without a witness to his back, and libel a man of property and honour.”
Skinner let him run on in this loud triumphant strain till he had quite done; then put out a brown skinny finger, and poked him lightly in the ribs, and said quite quietly, and oh, so drily, with a knowing wink —
“I’ve — got — The Receipt.”
Last updated Sunday, March 27, 2016 at 11:59