THE COGNOVIT.
Perker, it has been shown, was not a very brilliant solicitor, and hisviews on the trial were somewhat cloudy. When he was urging his clientto leave the Fleet he threw out some equally shadowy and ill-informednotions as to what might be done in the way of punishing the nefarioussolicitors, Dodson and Fogg, "those Freeman's Court Sharks."
His great charge was that they had got a _cognovit_, or undertaking topay their costs out of Mrs. Bardell--their own client! Mr. Pickwickrefused to pay them--why should not she? The poor woman had "blabbed" toSam, a careless and natural assurance of theirs, that they would becontent to get them from Mr. Pickwick--a thing many a firm would do. ButPerker here sees a regular conspiracy. "I cannot undertake to saywhether the wording of the cognovit, the nature of the ostensibleconsideration and the proof we can get together about the whole conductof the suit, _will be sufficient to justify an indictment forconspiracy_."
It is impossible to understand this bit of legal jargon. "The wording ofthe cognovit"--one could speculate on _that_ without seeing it. (2) "Thenature of the ostensible consideration" was not far to seek--it beingwork and labour done for the Plaintiff. And again, supposing they hadpromised her to get them solely from Mr. Pickwick--Sam's revelation ofthis, in open court, and its reception with laughter, showed what wasthought of it. So which of the two courses were they to adopt? (3) And"the proof we may get together about the whole conduct of the suit."This "whole conduct" was perfectly regular. So the Judge thought--so didthe jury. The case was proved by Pickwick's own friends. As we know,however, the firm took no steps to obtain satisfaction, but there cannotbe the slightest doubt that they would have "recovered damages." Wedoubt if Mr. Pickwick would have gone to the Fleet for the second timerather than pay.
Perker's suspicions as to the _Cognovit_ obtained by Dodson and Fogg wereshrewd, and certain enough, though he could not have seen the document.The suspicions were well warranted by the state of the Law, which becamean instrument in the hands of grasping attorneys. By it the client wasmade to sign an acknowledgment, and offering no defence to a supposedaction,--say for costs--brought against him, Judgment was then marked.
This offered a great temptation to the unscrupulous. Mrs. Bardell, nodoubt, signed with light heart, not knowing what she was doing, and beingtold that it was merely a matter of form. Various enactments attemptedto protect the client--one being passed some four or five years beforethe trial Bardell v. Pickwick, requiring the _Cognovit_ to be regularlyfiled within twenty-one days; more than ten years later it was required,that the client's signing such a thing should have no force in Law,unless he was represented by another solicitor.
The matter, as we know, was compromised with Dodson and Fogg, so therewas no need to scrutinize the _Cognovit_. No doubt Perker was enabled toput pressure on the firm by hinting at such proceedings.
The damages, 750 pounds, were certainly moderate, and would not have beenreduced by the Court on an application to set them aside as "excessive."The good woman was quite at her ease, being no doubt certain that Mr.Pickwick, at last, must give in. She could even enjoy the society of herfriends and make the celebrated junketting to the "Spaniards." The firmtook another view and grew tired of waiting; or they were sagaciousenough to see that the arrest of their client was about the best methodof putting pressure on Mr. Pickwick. In this connection, it may be notedthat Jackson's over zeal in the transaction might have led to an actionagainst his employers; for he arrested not only Mrs. Bardell, but herfriends, Mrs. Sanders and Mrs. Cluppins. The prison gates were actuallyshut on them. "Safe and sound," said the Bailiff. "Here we are atlast," said Jackson, "all right and tight."
True, Mrs. Bardell put under her hand in her appealing letter to Mr.Pickwick, that "this business was from the very first fomented andencouraged and brought about by these men," but this is not much; for theview only occurs to her when her operations had completely failed andrecoiled on her own head with such disastrous result. The firm'sbusiness was to persuade her that she had a good case, and the Jury'sverdict proved that she had. Had Mr. Pickwick given in and paid, shewould have had no scruples. One cannot, at the same time, but admire theingenuity of the author, in bringing such a Nemesis on her. Dodson andFogg, we are told, "continue in business from which they realise a largeincome, and in which they are universally considered among the sharpestof the sharp."
At the last interview, at Perker's, when the costs were paid, one mighthave expected Mr. Pickwick to behave with a certain disdainful dignity.He was beaten and had paid over the stakes, and could afford to treat hisenemy with contempt. Not so. The partners held out the olive branch byalluding to the way they had passed by his unmannerly attacks on them."I beg to assure you, sir, I bear you no ill will or vindictive feelingfor sentiments you thought proper to express of us in our office," andthe other partner said, "I hope you don't think quite so ill of us, etc."This was rather gentlemanly and becoming. One offered his hand. But Mr.Pickwick broke out in a perfect fury. They had assumed a tone offorgiveness which was "an excess of impudence." He had been "the victimof their plots and conspiracies." They had imprisoned and robbed him.It was "insolent familiarity." At last he said, "_You are a well-matchedpair of mean_, _rascally_, _pettifogging robbers_." This sentence herepeated three times, and the words "Robbers" he shouted after them manytimes over the stairs.
Sharping attornies! Why, a real sharping firm would have forced fromtheir client advances of fee, "cash out of pocket," have made her give aBill of Sale on her lease and goods, and have fairly stripped her ofeverything before the case began. Of the damages--had they got them--shewould have seen but little.
The _Cognovit_ that was extracted from Mrs. Bardell was anacknowledgement, as we have seen, which entitled them to enter upjudgment just as if a trial had taken place. In the Oxford greatDictionary, it reads quaintly to find Mrs. Bardell's cognovit quoted asan illustration of the legal meaning.
The Turnkey, on her arrest, had told Sam that she had been brought to theFleet, "on a Cognovit for costs," Sam imparted this news to Job Trotter,and sent him off, hot foot, to Perker in Montague Place. This outcast,was able to tell him, "it seems they got a _Cognovit_ out of her for theamount of the costs, directly after the trial!"
Boz, on this occasion, gives us a happy glimpse of Solicitor life.
Mr. Perker had a dinner party that day, which was certified by the lights in the drawing-room windows, the sound of an improved grand piano, and an improveable cabinet voice issuing therefrom; and a rather overpowering smell of meat which prevaded the steps and entry. In fact, a couple of very good country agencies happening to come up to town at the same time, an agreeable little party had been got together to meet them, comprising Mr. Snicks the Life Office Secretary, Mr. Prosee the eminent counsel, three solicitors, one commissioner of bankrupts, a special pleader from the Temple, a small-eyed peremptory young gentleman, his pupil, who had written a lively book about the law of demises, with a vast quantity of marginal notes and references; and several other eminent and distinguished personages. From this society little Mr. Perker detached himself on his clerk being announced in a whisper; and repairing to the dining-room, there found Mr. Lowten and Job Trotter looking very dim and shadowy by the light of a kitchen candle, which the gentleman who condescended to appear in plush shorts and cottons for a quarterly stipend, had, with a becoming contempt for the clerk and all things appertaining to 'the office,' placed upon the table.
'Now Lowten,' said little Mr. Perker, shutting the door, 'what's the matter? No important letter come in a parcel, is there?'
Do we not seem to be present? We can never pass by Russell Squarewithout calling up the scene. Note, too, the components of that legaldinner. Poor Sir F. Lockwood used to declare that he relished "Mr.Prosee, the eminent counsel," more than any one of Boz's legal circle.Yet these five words are all we know of him. But Sir Frank hadimagination, and like some of us co
uld read between the lines, or rather,between the words. Here was a prominent member of the Bar--was he K.C.?a triton among the minnows--therefore heading the table, listened to withreverence as he told of the judges, possibly of "old Stareleigh's" lastexhibition of petulance--"with it's high time for him to go, etc." Butif he had not silk, why did not Perker retain him instead of theincapable Phunky, whom he did _not_ ask on this occasion. "I gave thechap a good chance, but he destroyed my whole case!" "Catch me lettinghim put his legs under my mahogany." Among the guests was that"small-eyed, peremptory young gentleman"--the special pleader's pupil.What a capital sketch has Boz given of him. "He had written a _lively_book about the law of demises, with a vast quantity of marginal notes andreferences." He had come with his teacher, who was no doubt highlydeferental to Mr. Prosee, but enough, the peremptory young gentleman mayhave partly "tackled" the great man on some point of practice. The goodcountry agencies must have gone home delighted with their evening.
But Mr. Prosee may be brought into somewhat closer communication with thecase. At Perker's dinner the gentlemen had gone up to the drawing room,when Perker was called down to hear the news of Mrs. Bardell's arrest.Mr. Prosee was left expatiating to the circle on some beautiful "point,"and when Perker returned how likely that he should tell of hisextraordinary client who had preferred to go to prison rather than paythe costs of a suit, "and here," he would go on, "is the drollest sequelyou ever heard, &c."
"An odd unusual thing," Mr. Prosee would say. "Plaintiff and Defendant,both in jail together! I never heard the like." There would be muchlaughter at the novel situation. Thus the _cognovit_ would come up andMr. Prosee gravely say, "nothing will be done till an Act of Parliamentis passed. The client should be protected by a fresh solicitor." Onwhich the young author of the treatise on Demises would have something tosay in his best fashion; for the _cognovit_ might be taken to be a sortof demise. "I doubt Mr. Prosee, if your suggestion would work. As Itake it, sir, etc."
RELEASE FROM THE FLEET.
But the circumstances connected with Mr. Pickwick's release from theFleet, show the adroitness and ability of Dodson in a high degree. Itwill be recollected that when Job rushed with the news to Perker, thatgentleman and his clerk broke out into raptuous admiration.
'Now, Lowten,' said little Mr. Perker, shutting the door, 'what's the matter? No important letter come in a parcel, is there?'
'No, sir,' replied Lowten. 'This is a messenger from Mr. Pickwick, sir.'
'From Pickwick, eh?' said the little man, turning quickly to Job. 'Well; what is it?'
'Dodson and Fogg have taken Mrs. Bardell in execution for her costs, sir,' said Job.
'No!' exclaimed Perker, putting his hands in his pockets, and reclining against the sideboard.
'Yes,' said Job. 'It seems they got a cognovit out of her for the amount of 'em, directly after the trial.'
'By Jove!' said Perker, taking both hands out of his pockets and striking the knuckles of his right against the palm of his left, emphatically, 'those are the cleverest scamps I ever had anything to do with!'
'The sharpest practitioners _I_ ever knew, sir,' observed Lowten.
'Sharp!' echoed Perker. 'There's no knowing where to have them.'
'Very true, sir, there is not,' replied Lowten; and then both master and man pondered for a few seconds, with animated countenances, as if they were reflecting upon one of the most beautiful and ingenious discoveries that the intellect of man had ever made. When they had in some measure recovered from their trance of admiration, Job Trotter discharged himself of the rest of his commission. Perker nodded his head thoughtfully, and pulled out his watch.
Now to the superficial this seemed to be evaded by the art of the firm in"getting the cognovit out of her." But this was an ordinary, vulgarstroke--which anyone could have done. Their policy went far deeper, andthis Perker was acute enough to recognize. There was no object inputting Mrs. Bardell into the Fleet.
They could no more get their costs out of her, than they could get themout of Mr. Pickwick. She had nothing but her few "sticks" of furniture,worth say 50 pounds. But the astute fellows saw what pressure could beput on the benevolent nature of Mr. Pickwick, who could not endure that arespectable woman should be exposed to the contamination of a debtor'sprison. And their sagacity was to be justified, and on the very nextday, too.
It is curious, however, that no mention is made of Mrs. Bardell'srelease. It, of course, took place before Mr. Pickwick's. Here againDodson and Fogg behaved very fairly, for they allowed both her and Mr.Pickwick to be released, without receiving payment, but simply on "anunderstanding" by Perker. As it turned out, indeed, they were not paidfor some weeks.
The processes by which Mr. Pickwick was got into the Fleet werecomplicated enough, _Habeas Corpus_, appearing before functionaries, etc.But it is odd that in cases of persons of lower degree these seemed notto be necessary. We do not hear of them in Sam's instance. While Mrs.Bardell, was taken straight from "the Spaniards," to the prison door, shewas not even formally arrested by the Bailiff, though he was inattendance. He sat afar off at Hampstead, taking his drink--and on thebox during the drive. She might be said to have been arbitrarily takento the prison by Jackson--without a legal warrant. Had not the businessbeen compromised, some other astute firm of attorneys might have foundsubject for an action against Dodson and Fogg.
Another of the humorous incidents connected with the case is old Weller'sfirm persuasion that Mr. Pickwick was to "stand his trial," as though hewere indicted for some criminal offence. We find him always astray as towhen he was to be "tried," etc. This is a most natural impression amongthe lower classes, who are not very clear as to the distinction betweencivil and criminal process, being most familiar with the latter. In thesame spirit is his humorous suggestion of securing an _alibi_, as thebest method of getting Mr. Pickwick off. "O Sammy, Sammy, vy worn'tthere a alleybi!"
* * * * *
Such is "The Trial in Pickwick."
Is there any writer, now living, I may be asked, who could furnish such apicture as this, one so full of reality and true humour, of one of ourmodern Courts of Justice? The answer must be that it would be idle tolook for such a person. There are thousands who could supply minutedrawings in which not a single detail would be omitted. But the piercingto the essence, the happy generalization, the knowledge of the truepoints of character, these would be sought in vain.
Footnotes:
{26} So confused is the chronology of _Pickwick_, that it is difficultto fix the exact date of the Trial. Boz, writing some ten years afterthe event, seems to have got a little confused and uncertain as to theexact year of the Trial. He first fixed the opening of the story in1817: but on coming to the compromising incident in Goswell Street, whichoccurred only a few weeks later, he changed the year to 1827. ThenJingle's anachronism of the French Revolution of July suggested that thenew date would not do. So 1830 was next adopted. But this did not endthe matter, for in the "errata" we are directed to change this date backagain to 1827. And so it now stands. The Trial therefore really tookplace on April 1, 1828.
{84} Seven years after the Trial this monopoly was taken away from theSerjeants--namely in 1834: then capriciously given back to them, andfinally abolished in 1840.
{85} I have heard from the daughter of Mr. Chapman, the originalpublisher of _Pickwick_, that Talfourd revised and directed the "Trial."On one occasion Boz was dining with him when the proof was brought in,with some legal mistakes noted by Talfourd. Boz left the table and putit right.
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