Bardell v. Pickwick

Imagine Messrs. Lewis and Lewis sending in such a demand at the end of a trial which it had taken them nearly a year to get ready. In our time it could hardly be done under £1,000. Perker, by the way, told his client that on payment of the costs both of Plaintiff and Defendent, into the hands of “these sharks” he would get his release. With much indulgence – the attornies – allowed him to leave the prison on his bare undertaking to pay. And it is not clear why he should pay his own costs to them, and not to Perker. And they were not paid for sometime. Mr. Pickwick’s own costs must have been small. He had no witnesses. Perker would not have made a hand of him, and I fancy he would have got off for ninety pounds, or a hundred pounds. There was, however, the fees of the Special Jury, so he would have to pay, say, £220.

THE COGNOVIT

Perker, it has been shown, was not a very brilliant solicitor, and his views on the trial were somewhat cloudy. When he was urging his client to leave the Fleet he threw out some equally shadowy and ill-informed notions as to what might be done in the way of punishing the nefarious solicitors, Dodson and Fogg, “those Freeman’s Court Sharks.”

His great charge was that they had got a cognovit, or undertaking to pay their costs out of Mrs. Bardell – their own client! Mr. Pickwick refused to pay them – why should not she? The poor woman had “blabbed” to Sam, a careless and natural assurance of theirs, that they would be content to get them from Mr. Pickwick – a thing many a firm would do. But Perker here sees a regular conspiracy. “I cannot undertake to say whether the wording of the cognovit, the nature of the ostensible consideration and the proof we can get together about the whole conduct of the suit, will be sufficient to justify an indictment for conspiracy.”

It is impossible to understand this bit of legal jargon. “The wording of the cognovit” – one could speculate on that without seeing it. (2) “The nature of the ostensible consideration” was not far to seek – it being work and labour done for the Plaintiff. And again, supposing they had promised her to get them solely from Mr. Pickwick – Sam’s revelation of this, in open court, and its reception with laughter, showed what was thought 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 did the jury. The case was proved by Pickwick’s own friends. As we know, however, the firm took no steps to obtain satisfaction, but there cannot be the slightest doubt that they would have “recovered damages.” We doubt if Mr. Pickwick would have gone to the Fleet for the second time rather than pay.

Perker’s suspicions as to the Cognovit obtained by Dodson and Fogg were shrewd, and certain enough, though he could not have seen the document. The suspicions were well warranted by the state of the Law, which became an instrument in the hands of grasping attorneys. By it the client was made to sign an acknowledgment, and offering no defence to a supposed action, – say for costs – brought against him, Judgment was then marked.

This offered a great temptation to the unscrupulous. Mrs. Bardell, no doubt, signed with light heart, not knowing what she was doing, and being told that it was merely a matter of form. Various enactments attempted to protect the client – one being passed some four or five years before the trial Bardell v. Pickwick, requiring the Cognovit to be regularly filed 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 there was no need to scrutinize the Cognovit. No doubt Perker was enabled to put pressure on the firm by hinting at such proceedings.

The damages, £750, were certainly moderate, and would not have been reduced 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 her friends and make the celebrated junketting to the “Spaniards.” The firm took another view and grew tired of waiting; or they were sagacious enough to see that the arrest of their client was about the best method of putting pressure on Mr. Pickwick. In this connection, it may be noted that Jackson’s over zeal in the transaction might have led to an action against his employers; for he arrested not only Mrs. Bardell, but her friends, Mrs. Sanders and Mrs. Cluppins. The prison gates were actually shut on them. “Safe and sound,” said the Bailiff. “Here we are at last,” 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 and encouraged and brought about by these men,” but this is not much; for the view only occurs to her when her operations had completely failed and recoiled on her own head with such disastrous result. The firm’s business was to persuade her that she had a good case, and the Jury’s verdict proved that she had. Had Mr. Pickwick given in and paid, she would have had no scruples. One cannot, at the same time, but admire the ingenuity of the author, in bringing such a Nemesis on her. Dodson and Fogg, we are told, “continue in business from which they realise a large income, and in which they are universally considered among the sharpest of the sharp.”

At the last interview, at Perker’s, when the costs were paid, one might have expected Mr. Pickwick to behave with a certain disdainful dignity. He was beaten and had paid over the stakes, and could afford to treat his enemy with contempt. Not so. The partners held out the olive branch by alluding 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 feeling for sentiments you thought proper to express of us in our office,” and the 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 of forgiveness which was “an excess of impudence.” He had been “the victim of their plots and conspiracies.” They had imprisoned and robbed him. It was “insolent familiarity.” At last he said, “You are a well-matched pair of mean, rascally, pettifogging robbers.” This sentence he repeated three times, and the words “Robbers” he shouted after them many times over the stairs.

Sharping attornies! Why, a real sharping firm would have forced from their client advances of fee, “cash out of pocket,” have made her give a Bill of Sale on her lease and goods, and have fairly stripped her of everything before the case began. Of the damages – had they got them – she would have seen but little.

The Cognovit that was extracted from Mrs. Bardell was an acknowledgement, as we have seen, which entitled them to enter up judgment just as if a trial had taken place. In the Oxford great Dictionary, it reads quaintly to find Mrs. Bardell’s cognovit quoted as an illustration of the legal meaning.

The Turnkey, on her arrest, had told Sam that she had been brought to the Fleet, “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 the amount 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 Square without calling up the scene. Note, too, the components of that legal dinner. 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 had imagination, and like some of us could 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 with reverence as he told of the judges, possibly of “old Stareleigh’s” last exhibition of petulance – “with it’s high time for him to go, etc.” But if he had not silk, why did not Perker retain him instead of the incapable Phunky, whom he did not ask on this occasion. “I gave the chap a good chance, but he destroyed my whole case!” “Catch me letting him 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 and references.” He had come with his teacher, who was no doubt highly deferental to Mr. Prosee, but enough, the peremptory young gentleman may have partly “tackled” the great man on some point of practice. The good country agencies must have gone home delighted with their evening.

But Mr. Prosee may be brought into somewhat closer communication with the case. 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 his extraordinary client who had preferred to go to prison rather than pay the costs of a suit, “and here,” he would go on, “is the drollest sequel you 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 much laughter at the novel situation. Thus the cognovit would come up and Mr. Prosee gravely say, “nothing will be done till an Act of Parliament is passed. The client should be protected by a fresh solicitor.” On which the young author of the treatise on Demises would have something to say in his best fashion; for the cognovit might be taken to be a sort of demise. “I doubt Mr. Prosee, if your suggestion would work. As I take it, sir, etc.”

RELEASE FROM THE FLEET

But the circumstances connected with Mr. Pickwick’s release from the Fleet, show the adroitness and ability of Dodson in a high degree. It will be recollected that when Job rushed with the news to Perker, that gentleman 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, vulgar stroke – which anyone could have done. Their policy went far deeper, and this Perker was acute enough to recognize. There was no object in putting Mrs. Bardell into the Fleet.

They could no more get their costs out of her, than they could get them out of Mr. Pickwick. She had nothing but her few “sticks” of furniture, worth say £50. But the astute fellows saw what pressure could be put on the benevolent nature of Mr. Pickwick, who could not endure that a respectable woman should be exposed to the contamination of a debtor’s prison. And their sagacity was to be justified, and on the very next day, too.

It is curious, however, that no mention is made of Mrs. Bardell’s release. It, of course, took place before Mr. Pickwick’s. Here again Dodson and Fogg behaved very fairly, for they allowed both her and Mr. Pickwick to be released, without receiving payment, but simply on “an understanding” by Perker. As it turned out, indeed, they were not paid for some weeks.

The processes by which Mr. Pickwick was got into the Fleet were complicated enough, Habeas Corpus, appearing before functionaries, etc. But it is odd that in cases of persons of lower degree these seemed not to 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, she was not even formally arrested by the Bailiff, though he was in attendance. He sat afar off at Hampstead, taking his drink – and on the box during the drive. She might be said to have been arbitrarily taken to the prison by Jackson – without a legal warrant. Had not the business been compromised, some other astute firm of attorneys might have found subject for an action against Dodson and Fogg.

Another of the humorous incidents connected with the case is old Weller’s firm persuasion that Mr. Pickwick was to “stand his trial,” as though he were indicted for some criminal offence. We find him always astray as to when he was to be “tried,” etc. This is a most natural impression among the lower classes, who are not very clear as to the distinction between civil and criminal process, being most familiar with the latter. In the same spirit is his humorous suggestion of securing an alibi, as the best method of getting Mr. Pickwick off. “O Sammy, Sammy, vy worn’t there a alleybi!”

* * * * *

Such is “The Trial in Pickwick.”

Is there any writer, now living, I may be asked, who could furnish such a picture as this, one so full of reality and true humour, of one of our modern Courts of Justice? The answer must be that it would be idle to look for such a person. There are thousands who could supply minute drawings in which not a single detail would be omitted. But the piercing to the essence, the happy generalization, the knowledge of the true points of character, these would be sought in vain.

notes

1

So confused is the chronology of Pickwick, that it is difficult to fix the exact date of the Trial. Boz, writing some ten years after the event, seems to have got a little confused and uncertain as to the exact year of the Trial. He first fixed the opening of the story in 1817: but on coming to the compromising incident in Goswell Street, which occurred only a few weeks later, he changed the year to 1827. Then Jingle’s anachronism of the French Revolution of July suggested that the new date would not do. So 1830 was next adopted. But this did not end the matter, for in the “errata” we are directed to change this date back again to 1827. And so it now stands. The Trial therefore really took place on April 1, 1828.

2

Seven years after the Trial this monopoly was taken away from the Serjeants – namely in 1834: then capriciously given back to them, and finally abolished in 1840.

3

I have heard from the daughter of Mr. Chapman, the original publisher 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 put it right.