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as one was established, sufficient had not been done to enable the Court to notice the objection to the justification.
Coleridge J., pointed out that the amount of this debt and of that mentioned in the adjudication of the Insolvent Court were alike, and the parties to both were the same; he must look at the case in the same mode in which it should be considered by a jury.
Bail rejected.—Stone's Bail, T. T. 1837. K. B. P. C.
1 R. G. H. T. 2 W. 4, s. "2.—Cognovit.—
Under the provisions of the 1 R. G. H. T. 2 IV. 4, s. 72, it is sufficient for the at/or. ney attending on behalf of a defendant in custodti and giving a cognovit, to declare verbally that he subscribes as his attorney.
A defendant will be entitled to the benefit of the rule when, having represented a person to be his attorney, who was not an attorney, it shall appear he made the misrepresentation without fraud.
Peacock had obtained a rule nisi for setting aside a cognoeit, on the ground that at the time of its execution there was no attorney present to act on behalf of the defendant, who was in custody on mesne process, in pursuance of the rule of Court 1 R. G. H. T. 2 W. 4, s. 72. That rule directed that no warrant of attorney to confess judgment or cognovit actionem given by any person in custody of a sheriff or other officer upon mesne process should be of any force, unless there should be present some attorney on behalf of such person, expressly named by him and attending at his request, to inform him of the nature and effect of such warrant or cognovit before the same was executed, which attorney should subscribe his name as witness to the due execution thereof, and declare himself to be attorney to the defendant, and state that he subscribed as such attorney.
R. V. Richards shewed cause, and pointed out that the mode in which the cognovit was witnessed was " Witness R. P. Gales, attorney for the above defendant in custody, at his request;" and said that it was also sworn that Gales at the time stated verbally that he attested as attorney of the defendant, and although, in the affidavit in support of the rule, it was allaged that Gales was not an attorney, it was sworn in answer that the defendant at the time of giving the cognovit represented him as his attorney. It was contended that the Court would not now permit the defendant to take an objection that this representation was false. The case of J eyes v. Booth, 1 B. & P. 97, was cited, where the defendant having been informed, under similar circumstances to those iu the present case, that the instrument must be executed in the presence of an attorney on his behalf, and he produced a person as such, and executed a warrant of attorney, the Court refused to set aside proceedings thereon, be
cause the person so produced was not an attorney.
Cotfridge, J. said, that that decision proceeded on the ground that the misrepresentation was fraudulent, and he did not think that a similar opinion could be entertained of a case where a defendant innocently misrepresented a person to be his attorney, who was not one. Here the attestation was not witnessed by Gales "as" the attorney of the defendant, although he stated that he was his attorney.
R. V. Richards then urged that the mere question now was, whether the omission of the word "as" made the attestation insufficient; and submitted that it could not, within the spirit of the rules, render the cognovit void.
Peacock, contra, pointed out that Gales might have acted as the defendant's attorney on other occasions, but not on this. The rule required the attestation to be in a particular form, and the Court would direct that form to be pursued, in a case where a man's liberty was concerned. Mr. Baron Bayley, in the case of Fisher v. Nicholas, 2 D. P. C. 251, said in reference to this rule, that the Court should act on its obvious construction, without considering whether what was done was equivalent.
Coleridge, J., remarked that in that case it appeared to have been held that the declaration of the attorney attesting as attorney, should be in writing, but the subsequent case of fTeeson v. Price, 4 D. P. C. 213, decided that a verbal declaration was enough. That case was a decision of the full Court of Exchequer, and he must therefore be bound by it. The attestation therefore on the face of it must be considered sufficient.
Peacock then admitted that if the defendant had stated Gales to be his attorney, knowing that he was not an attorney, he would not be entitled to the protection of the rule, but if on the contrary, he helicved that he was an attorney, and represented him as such bond fide, inasmuch as the rule required that he should lie protected by the knowledge of a person duly admitted as an attorney, the cognovit must be void. In Walker v. Gardiner, 4 B. & Ad. 371, which was a case under the old rule of 4 Geo. 2, the words of which were the same as those of the present, the defendant had acquiesced in the attendance of an attorney to whom he was not known, and for whom he had not sent, and the Court held that this was not a sufficient compliance with the rule, and set aside the warrant of attorney. The words of Lord Kenyon in Hutson v. Hutson, 4 Taun. 797, were there referred to with approbation by Taunton, J., and his Lordship had expressed an opinion that the defendant, while under pressure of an arrest, ought to be considered incapable of waiving the benefit of the rule. The affidavits in the present case clearly shewed that the defendant did not know that Gales was not an attorney, and as the provisions had not been complied with, the* Court would set aside the cognovit.
Coleridge 3., said that it was laid down in
Mr. Tidd's last work, as having; been decided, that when the attorney had not taken out his certificate, the case was within the rule. Here the defendant represented Gales as his attorney, and appeared to be ignorant of the circumstance of his not being one, and if he thought he was one, and there was no wilful misrepresentation or fraud, he was entitled to the benefit of the rule.
The present rule therefore must be absolute.
Rule absolute.—Wallace v. Brockley, T. T. 1837. K. B. P. C.
1 R. G. H. T. 2 W. 4, s. 72.—Final
Cases where defendants are in custody on final process do not come within the rule 1 R. G. H. T. 2 W. 4, *. 72 j and where a defenilant therefore gave a cognovit while in custody on a ca. sa. issued in an action brought on a judgment, there being no attorney present on his behulf, the Court refused to allow Itim the benefit nf the rule, although u writ of summons had been issued on the same claim.
R. V. Lee had obtained a rule nisi for setting aside the cognovit in this case, on the ground that at the time it was executed the defendant had not the assistance of an attorney, pursuant to the Rule of Court, I R. G. H. T. 2 W. 4, s. 72. The action was brought on a judgment, and a writ of ca. sa. had been issued, on which the defendant was arrested. A writ of summons had also been issued on the same judgment. While the defendant was in execution under the ca. sa., the cognovit was given.
Humfrey shewed cause, and contended that the Rule of Court applied only to cases where the defendant was in custody on mesne process. The defendant here being in custody on final process, the rule must be discharged.
R. V. Lee submitted that as the plaintiff had also sued out a writ of summons on the judgment, and was thus taking two remedies for the same matter, the Court would not assist him in his proceedings.
Coleridge J., said that the words of the rule of Court, shewed clearly enough that persons in custody on mesne process alone were referred to. The circumstances of the writ of summons having been sued out made no difference.
Rule discharged with costs.— France v. Clarhson, T. T. 1837. K. B. P. C.
SCI. FA.—PLEADING RULES.—1 R. G. H. T. 4
The rules of Court 1 R. G. H. T. 4 W. 4, have reference to proceedings in scire facias on a judgment, and they must therefore be intitled of a day certain, and not of a term.
Mansel had obtained a rule nisi on behalf of the plaintiff, for signing judgment for want of a plea, on two grounds: first, that the demurrer to the replication was not in conformity with the terms of an order made in this case by Mr. Justice Palteson; and secondly, that it was frivolous.
Humfrey shewed cause. It appeared that the defendant was placed bv the order in question under terms to plead issuably, to rejoin gratis, and take short notice of trial. It was an action of set. fa. ; and the defendant demurred to the replication on the ground of the plaintiff's having adopted in its title the form directed by the new rules of pleading, 1 R. G. H. T 4 W. 4, by entitling it of a particular day, instead of a term, in lieu of the old form; it being said that proceedings in a sci. fa. on a judgmeut, were not within the new rules. It was now contended that proceedings in sci. fa. could not be considered as coming within the meaning of the new rules, any more than ejectment or real actions. The demurrer therefore, could not on this ground be considered frivolous.
Mansel, contra, urged that the new rules must be considered to apply to proceedings in sci. fa. on judgment. They were only in furtherance of the judgment, and therefore came within the scope of them. This question, however, could not arise here, for the defendant had intitled his pleading in the demurrer to the replication, in pursuance of the directions of the new rules, and had therefore treated the proceedings as under them. The demurrer was therefore frivolous.
Coleridge, J., thought the rule must be made absolute on the point as to whether proceedings in sci. fa. were within the new pleading rules. He was of opinion that they were, and they had been so treated by the parties throughout the proceedings. Ejectment could not be said to come within the rules, for it depended on a fiction, and was the creature of the Court; and real actions were in the same position, for the Courts had not concurrent jurisdiction over them. Proceedings of the present nature, when employed merely to enforce a judgment between the same parties might be treated as a continuation of the original action. The rule must therefore be absolute, the defendant having liberty to amend.
Rule accordingly.—Collins v. Beaumont, T. T. 1837. K. B.'P. C.
Miscellanea.—The Editor's Letter Box.
ANCIENT READINGS AND MOOTINGS.
The following is extracted from Stowe:
"The manner of the Readings —The benchers appoint the utter lurristers to read among them openly in the hall; of which he has notice half a year before. The first day he makes choice of some act or statute, whereupon he grounds his whole reading for that vacation. He reciteth certain doubts and questions which he hath devised upon the said' statute, and declares his judgment thereon: after which one of the utter barristers repeateth one question propounded by the reader who did put the case, and endeavours to confute the objections laid against him; the senior barristers and reader one after another do declare their opinions and judgments in the same; and then the reader who did put the case endeavours to confute the objections laid against him, and to confirm his own opinion: afttr which the judges and serjeants, if any be there, declare their opinions. Then the youngest utter barrister again rehearseth another case, which is prosecuted as the former was. And this exercise continueth daily three or four hours.
"The manner of reading, both in Lent and summer vacations, is performed after the same manner; and usually out of these readers the serjeants are chosen.
"The manner of Mooting in the Inns of Court.—In these vacations after supper in the hall, the reader, with one or two of the benchers, comes in, to whom one of the utter barristers propounds some doubtful case; which being argued by the benchers, and lastly by him that moved the case, the benchers sit down on the bench at the upper end of the hall; and upon the form in the middle of the hall sit (wo utter barristers; and on both sides of of them, on the same form sits one inner barrister, who in law French doth declare to the benchers some kind of action; the one being, as it were, retained for the plaintiff, and the other for the defendant; which ended, the two utter barristers argue such questions as are disputable within the said case. After which the benchers do likewise declare their opinions as how they take the law to be in these questions.
"The manner of mooting in the Inns of Chancery.—In the learning vacations each utter barrister, that is a reader in the inns of Chancery, goes with two students of the same inn of court to the inn of Chancery, where he is appointed to read ; and there meet him commonly two of each of the inns of court, who sitting as the bencheis do in the inns of
court at their moots, they argue and here the
"In the term-time the only exercises of learning are arguing and debating cases after dinner, and mooting after supper, in the same manner as in the vacations.
"The time between the learning vacations and terms is called the mean vacation; during which time, every day after dinner, cases are argued as at other times; and after supper mootes arc brought in, and pleaded by the inner barristers, in presence of the utter barristers, which sit there in the room of the benchers, and argue by them as the benchers do in term time and learning vacations.
"During the time of reading, which heretofore continued three weeks and three days, the reader keeps a constant and splended table; feasting the nobility, judges, bishops, principal officers of state, the chief gentry, and sometimes the king himself; insomuch that it hath cost a reader above 1000/.
"Afterwards he that hath been reader wears a long robe, differing from other barristers, and is then in a capacity to be made a serjeant at law.
"Now all these Inns of Court and Chancery are not far distant from one another, and do make the roost famous profession of the law that is in the world : there being so many eminent persons of such sound judgment in the knowledge of the law, and a considerable number of them the sons of gentlemen and persons of quality."
THE EDITOR'S LETTER BOX.
We do not consider it to be properly within our province to give opinions upon cases such as " A Lawyer's Clerk" bas stated. We recommend him to apply to a Common Law Barrister or Special Pleader.
We shall take care to include the names of the Perpetual Commissioners under the Fines and Recovery Act, which have been sent us for the Legal Almanac. Any further information should be forwarded soon.
The letter of G. M., on the debts of Married Women, will appear next week.
In the first Number of our next Volume, commencing in November, we shall probablt make an alteration regarding the Arfverliitments, which we trust will be approved both by Advertisers and Readers.
SATURDAY, OCTOBER 14, 1837.
- Quod maris ad Nos
Pcrtinet, et nescire malum est, agitainus.
HINTS FOR ADDRESSING JURIES AND OTHERS.
Lawyers, of all kinds and classes, are, or are expected to be, talkers—learned in the art of addressing all bodies of men, but especially juries, a bench of magistrates, a single judge, &c. I need therefore make no apology for throwing a few hints together on this subject.
Many have contended that the great end of the orator should be to carry his point, whatever that may be, and that he who can do this the most easily and successfully has achieved the triumph of his art. I think this true as respects all branches of oratory—although this has been denied; but assuredly, so far as the lawyer is concerned, it may be taken to be the only true rule. The lawyer must render the cause of his client successful—he must carry the verdict or decision in his favour, or his talents or eloquence avail nothing. However pleasing or varied his accomplishments as a speaker may be—however much he may delight his audience—however much admiration he may gain for himself, if he does not carry his point, he loses everything. It is to this end, as a wise and honest man, that all his efforts must be directed. He must learn to sink all thoughts of self; he must teach himself to be quite careless of what is thought about his manner or his matter: his business is not to win admiration, to lay down great principles, or establish grand truths, but simply to deal with the matter in hand, and convince the particular tribunal he addresses of the justice of his case. This is the rock on which many clever men split, and completely fail. They are ora
Vol xiv.—No. 424.
tors by rule, they are thinking of themselves, and not of the audience; how they may win general admiration, how they may astonish, how they may delight,—not how they satisfy and convince the men or man whom they address, and thus gain the cause for their client. They may thus gain great applause, be thought extremely clever, &c. but they will soon find that they have grasped the shadow, and allowed their opponent to run away with the substance. It is not the clever man that is employed, but the man who can do the work. The client must be satisfied. If his advocate does not succeed, it matters very little to him how his failure is gilded over. It is therefore the interest, as well as the duty of the lawyer, to learn—not the art of speaking, but the way to win the cause; and this should be the end of all his exertions.
The great rule then that I would lay down for him is, that he should be perfectly natural. He should quite forget that he is going to make a speech. He should divest himself of all affectation, all intonation of voice, all mannerism and mouthing. It is his business to gain credit; to have what he says, not only attended to, but believed. He should not wish to be thought a great orator, but simply to be narrating the real state of the case, and arguing upon it. Would a witness be endured if he were to venture into declamation in giving his evidence? The advocate should endeavour to convey the impression of being one better acquainted with the facts of the case than the jury, and speaking out of the fulness of his knowledge. The moment the advocate appears in his own character, he is distrusted. His great art should be to conceal his real character. This, of course, he cannot do completely, but nothing so effectually sets the jury on their 2 F
442 Hints for addressing Juries and
others.—The Property Lawyer.
guard a* any unnatural manner or oratorical display. Let the manner therefore be as natural as possible.
This general principle being conceded, the speaker should consider whom he addresses, and endeavour to suit himself to them in particular; and this is one great difficulty which the lawyer has to encounter. He has not an unvarying audience, but must suit his arguments, and even his words, to the divers persons whom he addresses. His guides here must be his own good sense and knowledge of human nature. Yet he will soon learn something. He looks upon the faces of those whom he addresses: he is to win their approval, to soften them, to gain them over. He must first be sure he is attended to, and at any rate understood. In addressing a jury box in particular, he has great difficulties in this way. Some of the jury will understand more readily than others, but he must be understood by all. He must therefore tire some of them by repeating over and over again the same facts or arguments until all understand. It is better however to be tiresome than unintelligible. He should therefore be sure that all comprehend the drift of his argument; the great points of his case. He must take the greatest pains not to be in a hurry, or to leave any one of the jury dissatisfied. The slow man, when once convinced, is often the surest. If the idea is once hammered into him, he will hold it fast, and perhaps carry the day. A man quick of perception catches it more readily, but is not so tenacious. The speaker must not mind, therefore, a little weariness on a part of the jury—he must not be frightened if several of them begin to yawn; as long as he finds that one or two have evidently not fully understood his meaning, he should go on until they do. He may indeed vary his language,— he may present the point in a different way; but if it is important to his case, let him drive the nail well home.
It often happens, however, that a particular argument is evidently distasteful to the persons addressed, and this more frequently happens when the tribunal is composed of a very limited number. When this is the case it should never be pressed. The speaker should abandon it at once. If insisted on, it may invalidate all his other arguments. If a judge once upsets one of your points and you oppose him, he will be tempted to try and upset them all; whereas if you abandon it, apparently leaning to his superior acuteness, you often please him, •
and strengthen the other points of your argument by your seeming candour.
In addressing any body, also, reasonable prejudices must be considered, and dealt tenderly with. I do not say they should be flattered; but you may often, by proper management, enlist them on your side. If you run counter to them you will assuredly lose your cause. It is worth while considering, therefore, whether from local causes or otherwise anything is to be gained or lost in this way.
The youthful orator has to steer between two great evils. He will at first be either too concise, or he will amplify too much, and become tedious. Nothing but practice can teach him the happy medium. Of the two I think too much conciseness is the greater fault, as it often leaves the hearer dissatisfied and unconvinced. It may be laid down as a rule, that at any rate the closing sentences cannot be too full. They should generally reiterate the great points of the argument, or rapidly review the principal facts of the case. Never be in a hurry to end, and never end in a hurry. Never close abruptly, and always leave off as if much remained behind to say. A bad beginning is much better than a slovenly or hasty close. A disagreeable impression is left in the mind by the one, whereas the other may be entirely smoothed away. The great art. of the orator is to get his hearers to think with him, and carry on his arguments in their own minds. He need not try to exhaust his subject. If he can only carry his hearers with him, they will supply his deficiencies, and identify themselves with him.
I shall mention some other points in another article. B.
THE PROPERTY LAWYER.
REVOCATION OF WILL.
In the case of Parsons v. Freeman, 3 Atk. 741, Lord Hardwicke laid it down that wherever a will has been made, and the estate is modified in a manner different from that in which it stood at the time of making the will, there is a revocation. A question has been recently raised whether, under this rule, if a will were made and the devisor took a conveyance of the estate devised to himself and his heirs, to the usual uses to bar dower, this would be a revocation. In Rawlins v. Burgis, 2 Ves. & B. 382, and Ward v. Moore, 4 Mad, 368,