execution" was out of the question-this was a purely common law debt and the common law courts had no power to appoint a receiver. 18

What were Dodson and Fogg to do to get the money to which they and their client were lawfully entitled? Only one thing remained, attachment of the person of the debtor-not at all the same thing as attachment to his person.

The judgment being signed the fifth day of Term, a writ of capias ad satisfaciendum may issue at once (dated indeed the first day of Term): this is an order to the sheriff to take the debtor and him safely keep so as to have his body before the court at a certain day therein named to make the plaintiff satisfaction for his demand. This is given to the sheriff, who places it in the hands of an officer who arrests the recalcitrant. The sheriff in this case intrusted the enforcement of the writ to Mr. Namby of Bell Alley, Coleman Street, who employed Mr. Smouch to assist. The two officers went to the "George and Vulture," the third morning after the expiration of the first week in Term,19 and about 9 a. m. arrested Mr. Pickwick. He was taken to Namby's "Sponging House"-for Namby was "officer to the sheriffs of London," and it was usual for sheriffs' officers or bailiffs to keep a "Sponging House" as a preliminary place of imprisonment for arrested debtors; such places were ostensibly intended in ease of the debtor to give him an opportunity of raising money or security for the debt. (The sheriff and his officers were forbidden by the "Lords' Act" of 32 George II to take anyone arrested on bailable process (capias ad respondendum) to gaol within twenty-four hours of the arrest.)

The officer made money by his "Sponging House" he furnished, for a consideration, rooms and food with any luxury the person could pay for. The prisoner, however, might fail to satisfy the claim in any way; he then must regularly go to the County Gaol

tember, 1732, the Houses, Lands, Negroes, and other Hereditaments and real Estates situate or being within any of the said (British) Plantations (in America) shall be liable" to be sold under execution (negroes were "real estate" like the old English villein). The applicability of this statute to Upper Canada was decided in our first reported case: Gray v. Willcocks (January 1806). The King's Bench by a divided court and the Court of Appeals decided against the plaintiff, but this was reversed in Judicial Committee (February 9, 1809). See 49 Can. Law Journal (1913) 28, 294.

18. The power to appoint a receiver was given in England by the Judicature Act of 1873 to all branches of the court; in Ontario by the Judicature Act of 1881.

19. The reporter says "Trinity Term," Cap. 12, but see note 10 ante.

in Whitecross Street-or he could go to The Fleet on a writ of habeas corpus.

Perker was sent for, and arrived next morning; his confident suggestion that he or Pickwick should write a cheque for debt and costs was spurned; and Pickwick expressed a wish to go to prison at once. Perker said that he could not go to Whitecross Street: "there are sixty beds in a ward, and the bolt's on sixteen hours out of the four and twenty." Accordingly it was determined that the prisoner should go to the Fleet. It was necessary to have a writ of habeas corpus. Perker and Pickwick, accompanied by Samuel Weller, went off in the afternoon to Serjeants' Inn, Chancery Lane, where a judge of the Common Pleas sat at 4 p. m. for such matters. 'Straw bail' was declined, much to the disappointment and disgust of "the slim and rather lame man in rusty black and a white neck cloth" who had expected to turn an honest two-and-six by perjuring himself in the conventional way-"a legal fiction, my dear sir, nothing more," as Mr. Perker put it. These useful men hung about judges' chambers ready to become bail for a debtor arrested on a capias ad respondendum and held to special bail-they "justified," i. e., swore to the ownership of property to the value of any number of pounds required, although everybody, judge included, knew they had not as many ha'pence. This was 'straw bail' by 'men of straw' and it had no place in capias ad satisfaciendum.2

20

The clerk in spectacles took the affidavit, the judge signed the habeas corpus, the body of Mr. Pickwick was confided to the tipstaff who conducted him to the warden of the Fleet, and Pickwick was then to be detained until the amount of the judgment and costs in the action of Bardell v. Pickwick should be paid.21

It was the experience of seeing how incarceration in the Fleet was regularly and normally effected which caused Samuel Weller to insist on a "have-his-carcass" in his own case; for "the have-hiscarcass, next to the perpetual motion, is vun of the blessedest things as wos ever made"; and while "visperin's to the Chancellorship" might be all right for getting into prison he thought "it mayn't be altogether safe vith reference to the gettin' out again."

20. The expression "straw bail" is sometimes derived from the straw which such men had in their shoes to show their vocation, but if such a practice did prevail, it is much more likely that the straw was symbolical of the character of the bail to be offered. At all events "man of straw" was and is a well known expression. Those of Covenanting descent will remember the "Tulchan" Bishops.

21. A very full and practical account of these proceedings will be found in Sellon "Practice" Vol. II pp. 264, 265. A slightly different course was followed to obtain entry into the King's Bench.

How Pickwick and his faithful Sam got out is a short story-it is confusedly and in some respects inaccurately reported, but there is no difficulty in reconstructing it. The client, Mrs. Bardell, no doubt, thought that she did not owe Dodson and Fogg, her attorneys, anything for costs; it was in evidence at the trial that they had done the "very generous thing" and had "taken up the case on spec" and were "to charge nothin' at all for costs unless they get 'em out of Mr. Pickwick." But the attorneys had to be paid-it is only those who are not and never were attorneys who fail to see the necessity. No doubt, had the matter been tried out—at least if on affidavit-it would be made to appear that their generosity extended only so far as to agree not to charge any costs unless they should succeed-and they had succeeded. However that may be, they made out and rendered their bill of costs22 "between attorney

ness

only

22. Unless Perker was disingenuous or incompetent or has been misreported, this bill of costs must have been at least £300. Perker told Pickwick that the question of Mrs. Bardell remaining in the Fleet "rests solely, wholly, and entirely with you"; that he could "rescue her from this den of wretchedby paying the costs of this suit." By the Act of 1793, 33 George III C. 59, any debtor up to £300 imprisoned could procure his release by surrendering his property to his creditor (unless the creditor insisted on his remaining in custody, in which case the creditor must pay 2s 4d per week; it is not at all likely that Dodson and Fogg would throw good money after bad).

Nor would a bill of £300 be exorbitant. The bill "party and party" was apparently £133, 6, 4; there were many items to be added not taxable "party and party," the splendid Buzfuz had been well fed, witnesses had been interviewed, information sought in many quarters, etc., etc., and an extra bill "attorney and client" of £166, 13, 8 would not shock the conscience of a hardened Common Law practitioner while a "Chancery man" would scoff at it.

I have no sympathy with the current notion that Serjeant Snubbin was hopelessly outclassed by Buzfuz, great counsel as Buzfuz was. I have carried too many briefs for the defendant not to appreciate Snubbin's position; he had to sit and watch for holes in the plaintiff's case, to admit what he knew could be proved thereby diminishing the effect on the jury, to avoid pitfalls, let well enough and ill enough alone. See what happened to his junior, the unhappy Phunky-of course, he was "a very young man ..only called the other day not been at the bar eight years yet"-after he did not sit down when Serjeant Snubbin winked at him, but continued to crossexamine the too-willing Winkle. It had been determined in advance not to call witnesses for the defense, and it is hard to see what the serjeant could have done that he did not do. 'Crede experto,' the lot of defendant's counsel in such cases is not a happy one.

I venture to add what I have said in another place, concerning Serjeant Buzfuz.

It is incomprehensible to me how barristers at least (whatever may be said of laymen) can look upon Serjeant Buzfuz as a burlesque. His name is no doubt intended as humour-perhaps Serjeant John Bernard Bosanguet, who was made a judge just before the trial of Bardwell v. Pickwick, is hinted at as Mr. Justice Gaselee is in Mr. Justice Stareleigh.

But his address, his marshalling of evidence, his examination of witnesses and his general conduct of the case for the plaintiff are just such as was to be expected from an able and experienced counsel: and nothing could be less farcical. Of course, in the public mind, a suit for "breach" is always amus

and client," issued a writ of capias and had the unsuspecting client sign a "cognovit actionem, relicta verificatione."23 This enabled the attorneys to sign judgment when they chose, and they did so in July.

re

They issued a capias ad satisfaciendum, arrested Mrs. Bardell and carried her to the Fleet within a week of the close of the month of July, after Pickwick had "for three long months mained shut up all day; only stealing out at night to breathe the air." These excellent and thoughtful men saved Mrs. Bardell all trouble in the way of getting a writ of habeas corpus, etc.; everything was prepared for her immediate entry into the Fleet-did not their very efficient clerk, Mr. Jackson, say, "They were anxious to spare your feelings as much as they could"?

Perker told Pickwick that the only way for her to get out was by him, Pickwick, "paying the costs of the suit these sharks,"24 for thus unkindly did he speak of his brother prac

to

ing, and counsel for the defendant plays on that popular idea, but counsel for the plaintiff combats it and never exhibits the slightest levity-he is more than usually stern and ceremonious.

Dickens' report is admirable, and no barrister can fail to appreciate the faithfulness of his description or the skill and acumen of counsel portrayed.

23. Which nobody knows anything about since the Judicature Act, but which was once not very uncommon: I saw more than one, when a studentat-law, 'Consule Planco.' We are told and Mrs. Bardell admits the fact that the attorneys "got a cognovit out of her for the amount of 'em right after the trial." It would be irregular to obtain a cognovit before the issue of the writ, although one case in 1820 seems to say that under certain circumstances that would be sustained if a writ was subsequently issued: Wade v. Swift (1820) 8 Price 513; the better opinion is that a cognovit required a writ to support it, but this the writ need not have been served: Kerbey v. Jenkins (1832) 2 Tyrwhitt 499; Shanley v. Colwell (1840) 6 Meeson & Welsby 543. Perker seems to have suspected some defect in the cognovit, but it is not likely that the attorneys did not take care to be perfectly regular.

24. There is some confusion here. The capias ad satisfaciendum on which Mrs. Bardell was held was for the amount of the judgment and costs in the action, Dodson et al. v. Bardell, not the costs taxed in Bardell v. Pickwick. Mrs. Bardell could procure her release only by paying the amount in the action in which she was a defendant. Perker is reported as saying to his client: "You can rescue her . . only by paying the costs of this suit both of plaintiff and defendant into the hands of these Freemon's court sharks." This is unintelligible; if "this suit" meant Bardell v. Pickwick, the "sharks" had nothing to do with the "costs of defendant": Perker was entitled to them after he and his client had "dived into some very complicated accounts and vouchers duly displayed and gone through"; and it is not at all likely that these attorneys or any attorneys, sharks or otherwise, would be satisfied with the amount of costs taxed to the plaintiff. They had their attorney's lien on the judgment, and they could prevent Mrs. Bardell discharging it until their "attorney and client" costs were paid.

Perker could not be speaking of the action Dodson et al. v. Bardell. The costs of this action were but a small part of the claim. No doubt what he did say was "the attorney and client costs in this suit," i. e. Bardell v. Pickwick.

There is another difficulty: how did Fogg come to speak of the "taxed one hundred and thirty-three, six, four" at all? And why should there be "a great comparing of papers and turning over of leaves by

costs

titioners. Perker arranged that Mrs. Bardell should give a release of the judgment of £750 damages, and Pickwick agreed to pay. Upon Perker's sending his undertaking to pay, the magnanimous attorneys sent down a discharge for Pickwick (and of course Mrs. Bardell). As soon as Pickwick agreed to pay, the defendant in Weller v. Weller sent to the illustrious Mr. Pell for the formal discharge which the plaintiff, "red-faced Nixon," "unnat'ral wagabone," "old image," "cruel pa," "unremorseful enemy," "unnat❜ral creditor," but "prudent parent" withal, “had had the foresight to leave in the hands of that learned gentleman." The elder Weller would have "nobody but Pell as a legal adviser," the Lord Chancellor, with friendly envy sighing, called him a wonder and he certainly well deserved the little retaining fee of five pounds he afterwards received from the "leg-at-ease"; therefore he was an eminently proper custodian of this important document.

All the three prisoners were thus set free; all lived happy ever after; and Mrs. Bardell "never brought any more actions for breach of promise of marriage"-more's the pity.

Dodson and Fogg?" The whole thing was perfectly simple, and the amount for which Mrs. Bardell was held in plain words in the capias. What is meant by "this statement of profit and loss"? There was no such statement, no need of or use for one. There is no suggestion that the attorneys were compromising their claim, nothing to indicate fear of indictment for conspiracy and, indeed, Mr. Perker had expressed his opinion that they were too clever for that; Perker never even suggests trying to cut down the claim of the "couple of rascals"; and it is inconceivable that they would not get all they were legally entitled to.

Most of the difficulty disappears if we read 'untaxed costs'-this is the reading in the Peterson edition (Philadelphia).