Page:The Green Bag (1889–1914), Volume 06.pdf/490

 Scenes in Court from the Year Books. to render this account, we tell you that he has assets in T.," &c. Hengham J. "Stop your noise (Lessez vostre noyse) and deliver yourself from this account, and afterwards go to the Chancery and purchase a writ of Deceit, and consider this henceforth as a general rule." (30 & 31 Ed. I. Br. Chr. 31, v. 6.) Let us hope this last statement was lucid to the practi tioner of the day. The words at the begin ning certainly seem rude, but perhaps they are only what a counsel of that day calls "curial words" (paroles de la Court). "Every word," he says, " spoken in Court is not to be taken literally. They are only curial words " (20 & 21 Ed. I. Br. Chr. 31, iii.) — a remarkable anticipation of a certain celebrated occasion when the Pickwickian sense of the word " humbug" was explained. However, counsel were able to take care of themselves then as now. "Sir" (this was the mode of addressing the Court). "Sir," says Toudeby, "we do not think that this deed ought to bind us, inasmuch as it was executed out of Eng land " (at Ghent). Howard J. "Answer to the deed." Toudeby (counsel). " We are not bound to do so for the reason aforesaid." Hengham J. "You must answer to the deed, and if you deny it then is it for the Court to see if it can try," &c. Toudeby. " Not so did we learn plead ing" (30 & 31 Ed. I.Br. Chr. 30, ii. 72.) This probably in an audible aside. The independence of the Bar is emulated by the Reporters. One Robert was charged with harboring an outlaw. The outlaw pro cured a charter of pardon from the King, and Robert contended that this purged his offence. Berriwick J. was like Dr. Johnson; his pistol having missed fire he knocks down his opponent with the butt end of it. "Robert, pay your fine to the King, for you cannot deny you harboured him, and that was a great trespass against the King," &c, &c.

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"Note, the Justice did this rather for the King's profit than in accordance with the law, for they gave this decision in terrorem." (30 & 31 Ed. I. Br. Chr. 30, i. 506.) Brave reporter! This is better than surreptitiously keeping a drawer like Campbell for Ellenborough's bad law. Later on a reporter — was it the same? — mentions a ruling with approbation as " correct." The proper construction of the Statute of Westminster came in question. Hengham J. " Do not gloss the statute. We understand it better than you, for we made it, and it is often seen that one statute extinguishes another." Often! we should think so. Counsel of course collapsed. Still, the learned judge failed to appreciate the distinction of intention and intendment The dictum contrasts unfavorably with the modesty of the late Lord Justice James in referring to a previous decision of his own, "which," he would say, " is an authority, though I joined in it." Technicality in these early cases is ram pant. The rule is " Find a flaw, however microscopic, in the writ, and pray for judg ment." In a " Petit Cape," Agnys was written instead of Agnes. Asserby (for Agnes) thought thereby to upset the whole process, and he said, " Sir, he sued the Petit Cape against Agnys, whereas he ought to have sued it against Agnes. Judgment of the bad writ." Metingham J. " It is not the fault of the party, but it is the fault of our clerk, and that fault wiU be amended by us, and so we tell you that the process is sufficiently good, and you are not courteous in speaking in that fashion." We find Hengham J. obliged, on another occasion, to observe, " That is a sophistry, and this place is designed for truth." (30 & 31 Ed. I. Br. Chr. 31, v. 20.) No ap plause is recorded however as following this excellent sentiment. Brumpton J. has even to admonish counsel, " See that there is no deceit in your pleadings." (30 & 31 Ed. I.