Page:The Green Bag (1889–1914), Volume 09.pdf/592



CURRENT TOPICS.

SPECIAL PLEADING. — It is evident that the editor of the "London Law Journal" had a vacation in August. Usually that learned person is too serious and instructive to be quotable in these trifling columns, but in August his Obiter Dicta disclosed a lighter hand. For example, the summer editor thus cheerfully discoursed concerning special pleading: — "An entertaining article might be written on the hu mors of special pleading. How Littledale, a master of the art, in drawing an indictment for murder which had been committed with a double-barreled pistol, spent manyhours in endeavoring to invent some form of words by which to cover the possibility of the fact of Ihe ball having issued from either barrel; how another pleader lost his cause by miscalling ''ifcs arbores; how an indictment for forgery was quashed because it charged the prisoner as Bartw., when he had signed the damning note as Bartholo mew; how Parke (Baron Surrebutter) took a demurrer to the bedside of a sick friend, feeling sure, he said, that the sight of it would restore the invalid, it was so exquisitely drafted. But of all the wire-drawn refinements of that wonderful science, could anything astonish the honest lay man more than the case referred to in ' Rolle's Reports'? In this case, an action for words, the pleading was that ' Sir Thomas Holt hath taken a cleaver and stricken his cook upon the head so that one side of the head fell upon one shoulder, ami the other side upon the other shoulder,' but it omitted to say that the cook was dead, ' il ne averr que le cook fuit mort,' so it was bad — 'pur ceo fuit ad judge nemy hon' — the cook's death after this splitting of his head being matter of inference only. The case in which the above is cited as an authority is itself a charming illustration of the fastidious nicety of the old pleader. ' Thou art a thief,' the defendant had said to the plaintiff; • thou hast stolen me a hundred of slatte.' ' Stolen me '! It puzzled the court where was the felony in stealing the defendant? Judgment for the defendant."

All this reminds us of our salad days when we dared write so irreverently of Charlea O'Conor and the other devotees of that awful science of special pleading. It must be confessed in candor that in Holt's case there was no necessary inference that the cook was dead, for the cleaver might not have been used for its customary office of cleaving, but might have been employed simply as a bat, knocking the culinary mechanic's head to right and left and not seriously injuring him. So in the case last above

mentioned, it is very clear that whatever the speaker's intention, his charge, construed by ordinary gram matical rules, was of stealing for the defendant's benefit. " Rob me the exchequer, Hal," said Sir John. Give the devil his due. As for the Baron's administration of a demurrer to the sick man, it was evidently designed as a healing draught. Demurrers from England do no good nowadays in the case of "the sick man." DELAYS OF THE LAW. — Some fault has been found with the delays of the law. But delay in some cases would seem to be advantageous in eliciting the truth. It is recorded in recent newspapers that in Kansas, in a suit for damages by a woman against a railroad company, a dozen physicians testified that on account of the injuries sustained by the plaintiff, maternity must be to her a thing unknown. The verdict was for the plaintiff, and the company appealed to the Supreme Court, where, after the lapse of a number of years, the decision of the lower court has just been affirmed. Meanwhile the woman has given birth to three children. We dare say that if the decision had been reversed, the plaintiff would have recovered more damages on the new trial. That is the way it always works. The jury would have awarded more damages to the woman on account of her supposed mortification in being convicted of mistake. Л PKOLIX WILL. — In the very agreeable memoir of Chief-Justice Doe, in the June GREEN BAG, is given a copy of his will, from which the writer thinks "not more than three or four words could be omit ted." But the Chief Justice was always prolix. He could not help it, and his will is prolix. Turning to page 252 of our June issue, the reader will see how much that document could have been condensed. For "give, devise and bequeath" read "give." For " all the rest and residue of my estate, real and personal" read " the residue of my estate." In the third clause, for "my said wife, Edith H. Doe," read " my wife," for the virtuous chief could not have had more than one, and he had already stated lier name. Instead of " and direct that she shall be

549