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.
