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In that reckless mania for innovation (as some of our contemporaries wisely designate the mis-called spirit of improvement) which characterizes the present age, we regret to say that many of these time-honored relics of the past have been swept away by recent acts of parliament, and those fatal new rules—
“Which surely were invented for our sins,”
and have produced that mass of decisions, or let us rather say in-decisions, with which Mr. Dowling periodically favors the profession—these new rules, we say, have made sad havoc with the pleasing allegories that used to charm us of old. Our interest is no longer excited on behalf of the defendant in an action in Q. B. pining as a prisoner “in the custody of the marshal of the marshalsea.” We no longer meet with that romantic picture of distress and destitution, reminding one of the calamities of Charles the second, or the pretender, which was presented in the writ of Latitat; wherein the king politely informed the sheriff of Berkshire—or as the case might be—that he had lately commanded the sheriff of Middlesex,−in which county every good subject seems to have been supposed to reside,to take the defendant and Richard Roe, who was always getting into some scrape or other, and keep them safely so that he should have their bodies—alive or dead, ut semble, —before himself (the king) at Westminster, to answer the plaintiff in a plea of trespass—what a picture of parental government was here exhibited—and that the sheriff of Middlesex had returned that the defendant and Roe were not in his bailiwick; whereupon, it being sufficiently attested in the king's court, before him, that the aforesaid defendant and Richard did “run up and down and secrete themselves,” in Berk's, the sheriff was commanded to take and keep and produce them in the same way as the sheriff of Middlesex had been previously commanded.
We honestly confess, that before our feelings were hardened by practice, though we always felt a becoming anger at the malpractices of the defendant and his friend Roe, we could not help entertaining a sneaking wish that the poor fellows might escape the vigilance of the sheriff, and perhaps have even gone so far (may the lord chief justice forgive us!) as to wish that they might catch the sheriff, and turn the tables upon him, as Robin Hood did of yore in the green glades of merry Sherwood.
But all this is over. A defendant is no longer in danger of having his body taken by the sheriff, and he is called to answer a plaintiff's complaint by a writ of summons, as dry and matter-of-fact a piece of business as Jeremy Bentham himself could have desired.
Still, however, thanks to the fifteen judges, there remains much to solace and divert us. We have still the action of trover—(not that fanciful one of sir T. Ridley's)—as pretty a fable as ever was invented; where the plaintiff tells his story in the most artless manner, declaring that he was lawfully possessed, as of his own property, of certain goods and chattels—say 200 bales of cotton, or some such trifle— or of certain cattle—such as ten horses, ten mares, and ten geldings—thus giving one a favorable impression of his wealth and importance—and that by some extraordinary and unexplained mischance he casually lost them—rather a careless trick, by the way,+and then in a manner equally extraordinary and unexplained, the defendant stumbles upon them, and they come to his possession by finding ;whereat you are apt to wonder at your own bad luck in never finding such things. But then, mark the defendant's dishonesty—observe the consequences of the temptation to which he was exposed, and be thankful you have escaped similar trials—whether of actions of trover or otherwise. For the defendant, well knowing that the goods are the property of the plaintiff, and of right belong and appertain to him—no loophole left for a pretence of ignorance to creep out at, but contriving and intending to deceive and defraud the plaintiff—the villain l—has not yet delivered them to the plaintiff, or any or either of them, or any part thereof-not one out of the thirty horses, mares and geldings that he found so “promiscuously ’’-not even so much as would serve for a sample of the cotton—though the plaintiff, with the most exemplary forbearance, has over and over again requested him to do so; but no—the defendant has wholly refused to give up to the plaintiff his goods, and not content with that, has absolutely converted and disposed of them to his own use—this is too much even for the plaintiff’s patience, “and thereupon he brings suit.” We can imagine that a simple man, being in possession of property such as ten bales of cotton or one horse, which he believes he has a legal right to, but which is claimed by another party, would be a good deal astonished upon being served with such a declaration, and not know very well how to make head or tail of it; but that does not lessen its real merits: he will go to his attorney, who will soon unravel the mystery, and make it all as plain as a pike-staff, and we should have no mercy for the man, who, upon such an explanation, did not at once enter fully into the beauties of the system. The action of ejectment still also remains to us. That is indeed a blessing; it throws, in the superabundance of its invention, even trover far into the shade; there not being a single tittle of truth in any one of the facts that are put upon the record. Suppose this simple case. A tenant has broken some of the covenants of his lease, whereby his landlord has a right to re-enter—we will call the landlord A, and the tenant B. In order to exercise this right, as it might be inconvenient bodily to oust B from the possession, he has recourse to the law—not to its strong arm—but to its persuasive powers—
and who can deny that it does its spiriting gently: see what a little epic the special pleader produces on the subject. He says, or sings, how Richard Roe—our old acquaintance—was attached to answer John Doe—whom we know aliunde to have been on other occasions an intimate associate of Roe, and are therefore astounded when we come to hear of the way in which he has been ill-treated by him"—and then it appears that A had let a messuage,
* In reference to the amicable relations existing between these two worthies, we may cite the following lines from “The Pleader's Guide:”
“Then let us pray for writ of pone,
or a manor, or possibly an Irish mountain,' to this Doe for a term of years; who had entered upon the premises, and was snugly and peaceably in possession : when that rapparee, Roe—for he is really no better—comes with an armed
Aid and abet the purpos'd ill,
* Ejectment lies for mountain in Ireland. Lord Kildare v. Fisher, 1 Stra. 71.