states among other absurdities, that the defendant is "in the custody of the marshal of the marshalsea of our lord the now king," when he is, perhaps, seated at his own fire-side, or hunting his harriers, quite unconscious of his imprisonment. This is one of the falsehoods which the creditor has, of necessity, to tell, who goes to purchase justice at the King's Bench. If he deals at the Exchequer, he must call himself "a debtor of our sovereign lord the now king," and complain against the defendant (who, he says, "is present here in court this same day") for not paying him," by reason whereof, he is less able to satisfy our said lord the king the debts he owes his majesty at his said Exchequer." This is the standing lie told by suitors in the Exchequer. The plaintiff is no debtor of the king's, probably does not owe the crown a farthing, and the defendant is as likely to be in Africa or America as in the court: nevertheless, all this must be alleged, or the Declaration would be informal. In actions by bill, the plaintiff is also obliged to give pledges, that he will prosecute his suit with effect. This is, however, no great inconvenience to him, since he can always command the assistance of Messrs. John Doe and Richard Roe, who are ever ready under the guise of befriending the unfortunate, by becoming bail or being pledged for them, to assist in putting money into the pockets of their creators, the lawyers. Nor is our specimen of Declarations remarkable for prolixity any more than for absurdity. Many special pleaders would, in a simple action for the amount of a tradesman's bill, add two more counts, called the quantum valebant and the quantum meruit counts to the Declaration. These two counts differ from those we have quoted, in stating, the one, that the defendant promised to pay for the goods what they were "reasonably worth," at the time of sale, and the other that he promised to pay for the work done, so much as the plaintiff "reasonably deserved" for it. It is further alleged in the one, that the goods were "reasonably worth," and in the other, that the plaintiff "reasonably deserved," other (forty) pounds. Even with this addition the Declaration would not be a long one these eight counts are all short ones; they are all of that kind which from stating the cause of action in general terms, are called common in opposition to special counts; which last profess to specify the particular facts on which the claim is founded; though in reality the facts are always so grossly misstated in them, that the truth cannot be gleaned from the special, any more than from the common counts. If the circumstances of a case differ at all from the usual circumstances of debt on simple contract-as if the action be brought on a policy of insurance, or if payment were to have been made by bills; one or several special counts, each often as long, and sometimes longer than the whole eight counts we have mentioned, are necessarily employed: and in all cases, whatever, special counts may be employed, if the plaintiff or his lawyer pleases; and when they are employed, they are usually, if not always, accompanied with four or five of the common counts. Numbers of Declarations are ten times, and some fifty times as long as our specimen. Mr. Tidd, in page 618 of his work on the Practice of the Court of King's Bench, mentions a Declaration in debt on the stat. 9th Ann. c. 14. which contained 480 counts, most of them probably long ones; and another in assumpsit containing 286 counts, upon as many banker's notes of a guinea each, besides the common counts. We have selected the Declaration in assumpsit as an example, zecause it is one of the kinds, which most frequently occur in practice. Assumpsit is the form of action customarily adopted in most cases which are or can be twisted into cases of debt on simple contract; that is debt, not due by virtue of a deed. In whatever other way a man may have become indebted, the creditor is made, in order to take his chance of recovering the debt, to allege that the defendant "faithfully promised to pay" it; although this, in an overwhelming majority of instances, is well known to be untrue. A man sends for goods, they are sent to him, and as soon as he has them, he declares that he will never pay a farthing for them. Yet the creditor is made to affirm positively, that after he became indebted for the goods, he "faithfully promised" to pay a certain sum for them. It is also the form generally employed in actions, to recover compensation from tradesmen, for loss occasioned by their negligence in pers forming the business intrusted to them. A horse is sent to a farrier to be shod; in shoeing, the animal is accidentally lamed by the farrier's man: here no promise has been made nor was the injury done, intentional; yet the owner would, in an action for compensation, be made to allege, that "in consideration of certain reasonable reward," the farrier undertook and faithfully promised" to shoe the said horse in a skilful, careful, and proper manner," but that "he not regarding his said promise and undertaking, but contriving and fraudently intending, craftily, and subtilly to deceive and defraud the said plaintiff, did not nor would shoe the said horse in a skilful, careful, and proper manner, but wholly neglected so to do," &c.* Again, a person claiming, under a mistaken notion of right, * See the form, 2 Chitty on Pleading, p. 154, a public office, enters upon it, forcibly turns out the rightful proprietor, and receives the ordinary fees of the office. In his action against the intruder to try the right to the office, the proprietor might, and probably would, allege, that the defendant had received the fees, as his agent, "to and for his use," and "had faithfully promised to pay" them to him; while, in truth, so far from having promised to pay him the fees, the very question to be decided by the action would be, whether he had a right to them or not. When lawyers have compelled a plaintiff falsely to allege a promise, their end is gained; to act upon the falsehood would be too gross an absurdity even for them. On the trial he is only required to prove, that he has a right to the sum demanded, and this, according to lawyers, is sufficient to prove, not only that the defendant ought to pay, but that he promised to pay it. So that, although the claim is, in the Declaration, rested altogether on the fact of promise, yet that sole foundation of the demand is never attempted to be substantiated by evidence, but, on the contrary, if the defendant were even to prove that no promise had been made, it would not avail him-he would be told by the judge," that although no doubt existed in his mind of the non-occurrence of the promise, yet a promise must be inferred from the proof of right-because every body promises to do what he ought to do." We shall, perhaps, be told that this false assertion may be avoided, by bringing, in some cases, an action of debt, in others an action on the case instead of assumpsit-that is by proceeding in another form. In many cases this certainly may be done, in others a man is absolutely compelled to tell this falsehood, or pious and moral judges will not assist him in obtaining justice. But even where a plaintiff is permitted to abstain from alleging a promise where none exists, such abstinence frequently lays him under very considerable disadvantages. For instance, if he brings debt-which form of action differs from assumpsit only in omitting the promise and resting the demand on the debt itself, instead of on the promise-the defendant may, by swearing that he does not owe the money and bringing compurgators to swear that they believe him, discharge himself altogether from the debt; which he cannot do if assumpsit be brought-that is, if a false allegation of promise be inserted in the Declaration. Would it be safe to risk this? Would there not be room to fear, that one who was dishonest o put his creditor to the expense of an action to recover would also be dishonest enough to take a false. harge himself from the debt altogether? An instance of the disadvantages to which those are liable who are at all scrupulous about lying, we remarked in the reports of Hilary term 1824. In King v. Williams, (2 Barnwell and Creswell's Reports, 38), which was an action of debt on simple contract, the defendant pleaded nil debet per legem, and prepared to wage his law-that is, to swear as above mentioned. The plaintiff, knowing that he must inevitably lose his money unless he falsely alleged a promise, found himself, therefore, compelled to abandon his action of debt, paying the costs on both sides, probably with the intention of bringing assumpsit, and telling the favoured falsehood. Even if we admit that the false allegation of promise may in all cases be avoided, and that without laying the suitor under any disadvantage, we do not see how that admission tells in favour of the lawyers. If it may be omitted without inconvenience to their clients, why do lawyers ever insert such unnecessary falsehood? and why do judges permit instances of it to pass every day under their notice without one word of reprobation? Will lawyers admit that they insert falsehood unnecessary to their clients, merely in order to charge for it, and judges that they connive at this fraud? If not, neither of them can deny that that law and that system of pleading, which they praise so extravagantly, compels men to lie, under penalty of loss of property. No portion of the blame rests on the clients themselves all of it falls upon the lawyers. For while the system of law-procedure is so artificial as to necessitate men to leave their suits to be conducted by lawyers, they are to all intents and purposes obliged to allege whatever their lawyers please. Now it is well known to every lawyer, that for one action of debt, or on the case, brought where assumpsit is sustainable, ten or twenty actions are brought in assumpsit. The lawyer makes his client, who has a debt of £.15 or £.18 owing him, declare that the debtor being indebted to him £.40 for one thing, £.40 for another, &c., faithfully promised to pay him all these sums, but that being fraudulent and subtle and so forth, he has not paid them. By which non-payment of six or eight times £.40, he has injured the creditor £.20. All this "if well understood," is doubtless founded on "sound sense, and exquisite logic," on still sounder morality and still more exquisite veracity; but we confess ourselves unable to well understand this ingenious document, or to discover in it any thing better than the grossest absurdity. The Declaration in Trover, as it is called, is fully equal in absurdity to that in Assumpsit. Trover lies for the value of any personal property whatever, which a person to whom it does VOL. IV.-W. R. not legally belong, has converted to his own use, or refuses to give up to the owner. In whatever manner the defendant may have become possessed of this property-whether the plaintiff gave it into his custody or he took it by force-the Declaration in trover always states, that the plaintiff casually lost, and the defendant casually found, the goods in question. In an action of this sort for the value of 2 waggons, 10 horses, and 100 head of cattle, the cause of action would be stated in the Declaration as follows.* "For that whereas the said plaintiff, being possessed of certain cattle goods and chattels, to wit, 20 waggons 20 carts 20 carriages, 100 horses 100 mares 100 geldings, 1000 bulls 1000 cows 1000 oxen 1000 heifers, casually lost," as it were out of his pocket, "the said cattle goods and chattels, and the same came into the possession of the said defendant casually by finding."+ The Declarations in assumpsit, and trover, will, we doubt not, appear quite absurd and mendacious enough, yet even they are veracious and simple compared with that in ejectment. In all Declarations, time, place, numbers, nay every fact mentioned is false or mis-stated, but the names of the parties at least are generally true. In the Declaration in ejectment not only every fact stated, but also the names of the parties, and, literally, every word is false. Ejectment is the common, and indeed almost the only action, which occurs in practice, for the recovery of real property. "It commences," says Mr. Stephen, "by delivering to the tenant in possession of the premises, a Declaration * See the form, 2 Chitty on Pleading-p. 370. A correct notion of another sort of Declaration, that in an action for Assault and Battery, may be derived from the following lines, by an enlightened pleader: The pleadings state, that John-a-Gull, With envy wrath, and malice full, With swords, knives, sticks, staves, fist, and bludgeon, Beat, bruised, and wounded, John-a-Gudgeon. First counts. "For that," with divers jugs, "To wit, 12 pots, 12 cups, 12 mugs, Of certain vulgar drink called toddy, Said Gull did sluice said Gudgeon's body, To wit, his gold-laced hat and hair on, And clothes which he had then and there on, To wit, 12 jackets, 12 surtouts, Twelve pantaloons, 12 pairs of boots, Anstey's Pleader's Guide. |