saying, "You shall hear from my solicitor," and went to see Mr. Perker of Gray's Inn. He being away from town for a week, Pickwick saw Mr. Lowten, his clerk, and left the copy of the writ with him with instructions to defend.

No Special Bail being required, a "common appearance" was entered with merely nominal sureties, "John Den and Richard Fen"; then followed declaration by plaintiff, plea by defendant and replication by plaintiff, issue."

The case was set for trial at Guildhall by a Special Jurynothing so common as a common jury for Dodson and Fogg and their eminent Counsel, Serjeant Buzfuz-"in the settens after Term," February 14, 1831; and Pickwick's friends, Snodgrass, Tupman, and Winkle with his servant, Samuel Weller, were subpœnæd on behalf of the plaintiff in the early part of January. Weller next morning sagely observed that the day set for the trial was a "remarkable coincidence Walentine's day .. reg'lar good day

...

for a breach o' promise trial."

The judge was Mr. Justice Stareleigh," "a most particularly short man and so fat that he seemed all face and waist-coat": Counsel for the plaintiff, Serjeant Buzfuz and Mr. Skimpin; for the defendant, Serjeant Snubbin and Mr. Phunky.

5. Someone's mistake-Mr. Pickwick's or the reporter's. "Solicitors" did not practise in the common law courts; their court was chancery. At"orneys practised in the common law courts; generally an attorney was a solicitor and vice versa. Dickens speaks of Perker again as Pickwick's solicitor in the interview with Mr. Serjeant Snubbin; also after the trial.

6. When our court of King's Bench was established in 1794 by the Act of 34 George III C. 2 (U. C.) with the jurisdiction of the courts at Westminister, it was provided by sec. 5 that "the original and first process shall be by writ of capias ad respondendum," and that no one was to be held to special bail or arrested unless on an affidavit of debt in a sum certain and setting out that the defendant was about to leave the Province with intent to defraud his creditors: Sec. 6. The formality of "original writ" was not provided for and never was in use in Upper Canada even when outlawry was desired.

7. Of course, Mr. Justice Sir Stephen Gaselee, appointed to the court of Common Pleas 1824, resigned in 1837 and died 1839, aged 77, "a painstaking and upright judge and in his private capacity a worthy and benevolent man."

8. The serjeants-at-law still had the valuable monopoly of counsel practice in term time in the court of Common Pleas; but this was not in term but a trial court of nisi prius. The special privilege, Campbell, when Attorney General, attempted to abolish by royal warrant in 1834; it was obeyed for a time, but on argument was held to be ineffective: 10 Bing. 571, 572; 6 Bing. (N. C.) 235-239. During the delivery of the judgment "a furious tempest of wind prevailed which seemed to shake the fabric of Westminister Hall and nearly burst open the windows and doors of the court of Common Pleas." The privilege was abolished in 1846 by the Act 9, 10 Vict. C. 54. The judges addressed serjeants as "brother" as by custom until 1873, everyone before being made a judge was made a serjeant.

The special jury not all turning up, a sensitive greengrocer and a philosophical if pessimistic chemist were sworn in as talesmen.

There is no need to say anything of the trial; neither of the parties did or could give evidence. It is true that in an occasional local court in England and in certain inferior courts in Upper Canada (from 1792) the evidence of plaintiff and defendant was allowed; but it was not till 1851 that the superior courts were allowed to permit parties to give evidence.9

A verdict went for the plaintiff for £750; the elder Weller "know'd what 'ud come of this here mode o' doin' business," and lamented, "Vy worn't there a alleybi ?"

Pickwick vehemently asserts to Dodson and Fogg, "Not one farthing of costs or damages do you ever get from me, if I spend the rest of my existence in a debtor's prison," and is told that he will think better of it before next term.

Two months must elapse before the judgment could be entered up for the amount of damages and costs-final judgments could be entered up only on the postea, i. e., the entry of the verdict of the jury which was endorsed on the back of the record at nisi prius. In the common pleas, where the action was tried in London as this was, an officer of the court, "the associate," kept the record with the postea endorsed on it in his own custody until the fifth day of the following term. This was to allow the losing party to move in term against the verdict for a new trial, etc., etc.

But the inevitable fifth day of Trinity term1o arrived; Dodson and Fogg received the record and entered up judgment on the postea for £750 damages and costs taxed at £133, 6, 4, as Mr. Fogg said some time later when with considerable native humour he was for

9. Our act giving the Courts of Requests with jurisdiction in debt up to 40 shillings Quebec currency (36 shillings sterling) the right to administer an oath to the plaintiff or defendant is (1792) 32 George III C. 6 (U. C.), and is the first statute of which I have any knowledge in any English speaking country giving that power. The English legislation is (1846) 9, 10 Vict. C. 95, for certain courts (1851) 14, 15, Vict. C. 99, the general Act, and (1869) 32, 33 Vict. C. 68. See my judgment in Boyle v. Rothschild (1908) 16 Ont. Law Rep. 424.

10. The terms for 1831 were regulated by the act (1830) I Will. IV C. 70 s. 6. Hilary Term began January 11, ended January 31. Easter Term began April 15, ended May 8. Trinity Term began May 22, ended June 12. Michaelmas Term began November 2, ended November 25.

Dickens is therefore astray in his terminology and dates. The trial being held February 14, the postea would be delivered to the plaintiff and judgment entered on the fifth day of Easter Term, not in Trinity Term at all. The Original Terms were: Hilary, January 23 to February 12. Easter, Wednesday after Easter Day to Monday three weeks after. Trinity, Friday after Trinity Sunday to Wednesday fortnight. Michaelmas, November 6 to November 28.

making "Mr. Pickwick pay for peeping." And now Mr. Pickwick must pay up or stand the consequences.

My young Toronto friend found his difficulty just here-he truly said the attorneys (he from habit called them "solicitors," as we have had no attorneys-at-law since 1881) had no ill-will towards Pickwick, they did not wish to punish him, all they wanted was their money. That they had no feeling against Pickwick is certain; Dodson, "a plump, portly, stern-looking man with a loud voice," and Fogg, the man of business, "an elderly, pimply-faced, vegetablediet kind of a man," both on their first interview with Pickwick had "an air of offended virtue" and looked upon his conduct towards their client, Mrs. Bardell, with grave disfavour-they rather welcomed his most slanderous epithets, and did not bring an action of libel against him. After the trial they jested with him; Dodson laughed and Fogg grinned, when Pickwick was speechless with indignation; and when Pickwick became willing to pay up, they were more than glad to let him have his freedom: Nay, they saluted him cordially, solicitously asked as to his health, expressed great happiness on making his acquaintance and great concern on hearing that he had been "persecuted and annoyed by scoundrels of late." Dodson expressly said that he bore no ill-will or vindictive feeling toward Pickwick; and Fogg warmly concurred in a most forgiving manner-all this courtesy, good nature and charity while the payer was flashing forth looks of fierce indignation, restraining his wrath by gigantic efforts, with the blood tingling in his cheeks, refusing to give his hand, charging the attorneys with insolent familiarity and ending up with calling them "a well-matched pair of mean, rascally, pettifogging robbers." They were even willing to let Pickwick assault them—or at least each was willing to let Pickwick assault the other-without returning it.

Men of that forgiving Christian temperament-for it is not necessary to recall Fogg's Christian act toward the rash debtor, Ramsey, to enable one to recognize the character of these men— men of their temperament could have no ill-will toward anyone and it was only their money they wanted.

As the defendant was a man of means, there would nowadays be no difficulty in making the money. If he did not pay up he would be examined as a judgment debtor," the property or means he had for satisfying the judgment would be disclosed, the debts due him, the money he had in banks-he was forever signing cheques-found

11. Ontario Rule 580; English Rule 610; in Ontario without, in England with, an order of the court or judge.

out. Then would follow seizure of stock in companies, attachment of debts, etc. All that was far in the future.

There was no way of finding out what property or means this debtor had. The "Lords' Act" (1758) 32 George II, c. 28, had provided that the creditors of a judgment debtor charged in execution for a debt under £100 might compel the debtor on pain of transportation for seven years to make a discovery and surrender of his effects for their benefit and then obtain his release; and legislation in 1793 extended these regulations to debts of £300; but the judgment in Bardell v. Pickwick was for £750, and these Acts did not apply.12

The common law "coeval with civilized society itself formed from time to time by the wisdom of man" thought to be the perfection of human reason, even if Blackstone did not say so, never so much as thought of anything so simple and sensible for the discovery of assets: it was not until 1854 that such a practice was provided for. The Common Law Procedure Act of 1852, 15, 16 Vict., c. 76, more than deserved its title, "An Act to Amend the Process, Practice and Mode of Pleading in the Superior Courts of Common Law at Westminster . . .;" it was revolutionary, rather than amending, but it was not sufficiently revolutionary to give such relief to a creditor. But Parliament had got going and The Common Law Procedure Act of 1854, 17, 18 Vict. c. 125, by section 60, provided for an examination of a judgment debtor in almost the same language as the present English Rule 610.14

12. The "Lords' Act" was so called because it originated in the Upper House. It was rather intended for the relief of debtors in prison; the Act of (1786) 26 George III C. 44, enlarged the provisions to debts of £200; that of (1793) 33 George III C. 5, s. 3, made perpetual by (1799) 39 George III C. 50, to those of £300.

Of course, a bank account is in law nothing but a debt owed by the bank to the depositor; once money is deposited, the money itself is the money of the bank, and a debt is established from bank to depositor: Foley v. Hill (1848) 2 H. L. Cas. 28.

13. Lord Kenyon in Rex. v. Busby (1801) Peake 193.

14. Upper Canada did not lag behind. "The Common Law Procedure Act" (1856) 19 Vict. C. 43 (Can.) followed closely the English Acts of 1852 and 1854; then followed the amending Act of 1857, 20 Vict. C. 57 (Can.), consolidated in 1859, C. S. U. C. C. 22.

There were subsequent English Acts, e. g. (1860) 23, 24 Vict. C. 126 (Imp.), and Canadian Acts; but I do not pursue the inquiry further.

The practice in Upper Canada (now Ontario) under these acts is fully, minutely, and accurately described in Harrison "Common Law Procedure Act" Toronto, 1858, by Robert A. Harrison, afterwards Chief Justice of Upper Canada, whose judgments always "collected all the authorities." In England, perhaps Finlason "Common Law Procedure Act" (eds. 1855 and 1860) gives as good an account as any; Quain and Holroyd (1852) does not cover the Act of 1854; Markham "Common Law Procedure Acts" (3rd ed. London 1864) is a useful manual.

Even if there had been any way of finding out Pickwick's assets, there was no way of making them available to pay the judgment--there was no such thing as attachment of debts at the common law that also came into existence in England by The Common Law Procedure Act of 1854, closely followed in this as in other respects by the Canadian Act of 1856.

Nor could debts be seized under a writ of execution against goods a writ of fieri facias (or Fi. Fa., as it is generally called). This was a common law writ directed to the sheriff to cause to be made of the goods and chattels of the debtor the amount of the judgment and costs. The delightful pages of Tidd's Practice"Oh, what a writer Mr. Tidd is!"15-will tell us what could be seized under a fi. fa. at that time. No money (except money in the possession of the defendant), no bank notes, nothing but goods and corporeal chattels capable of sale. It was not until 1838 that the law was changed: in that year by the Statute 1, 2 Vict., c. 110, s. 12 (Imp.), the sheriff was enabled to seize under a fi. fa., money, bank notes, promissory notes, and other securities for money, and sue on the securities: in 1840 by the Statute, 3, 4 Vict., c. 82, stock or shares in companies could be charged with the payment of the debt -but an ordinary debt from a third person could not be reached in that way.16

Pickwick had apparently no land and so the writ of Elegit, or that of Levari Facias was of no avail1 in his case. "Equitable

15. Teste Uriah Heep. "I am improving my legal knowledge, Master Copperfield," said Uriah, "I am going through Tidd's Practice. Oh what a writer, Mr. Tidd is, Master Copperfield."

Lord Brougham in Earl of Glasgow v. Hurlet (1856) 3 H. L. Cas. 25 (at p. 40) spoke of his "learned friend the late Mr. Tidd, the author of one of the very best books in the profession, most logically contrived and arranged the most perfect mode of clear and logical arrangement . one of the very few books in which you never look for what you want without finding it." I paid my humble tribute to this excellent book in Re Erb (No. 2) (1908) 16 Ont. Law Rep. 597: "a thoroughly reliable compendium of the law as it then stood": p. 599. The only work at all approaching Tidd and that 'longo intervallo,' was Serjeant Sellon's "Practice," London, 1798.

16. Upper Canada obtained similar legislation by the Act 20 Vict. C. 57 (Can.) as to which see McDowell v. McDowell (1863) 1 Ch. 140; McNaughton v. Webster (1860) 6 U. C. L. J. 17. The present legislation is R. S. O. (1914) C. 80 ss. 12, 18, 19, 20, 25.

17. There was no such writ at the Common Law as a fi. fa. lands. The rather ineffective writ of elegit was given by the Statute of Westminster 2, 13 Edward I C. 18; by this the goods are appraised and (except oxen and beasts of the plough) delivered to the plaintiff at an appraisement in part satisfaction of his debt; also half his land to use until the debt is paid. There was a common law writ of levari facias under which the sheriff seized the goods and received the rents and profits of the lands till the debt was paid. Our fi, fa. lands depends for its origin upon the statute of (1732) 5 George II C. 7, which enacted by sec. 4 "that from and after the 29th Sep