Ackermann’s Repository of Arts/Series 1/Volume 1/January 1809/Law Reports
Ubi ingenio non erat locus, curæ testimonium promeruisse contentus.
It will be unnecessary to say much upon the utility of reporting important judicial decisions, or the necessity of strict accuracy in the history of judicial proceedings. The courts of justice which administer law in particular cases, are bound to state the principles and construction upon which those decisions may be founded, which are to govern analogous cases in future. The almost infinite modifications of which property is susceptible, and the multiplied combinations which arise out of these in a commercial country, are beyond the reach of positive laws, because they are beyond the powers of human foresight. The wisdom of our constitution has therefore very properly left to the experience of our judges, the task, of deducing from its general propositions such corollaries as come within the range of its intent and meaning: these deductions, in time, become part of the law itself. Notwithstanding its importance, the care of collecting these decisions, and the principles by which they were governed, has been rather accidental than established. The records of the courts are indisputable evidence of the judgments, and at a remote period the reasons of the judgment were set forth in the record, but this practice has been long discontinued. According to modern usage, the most important points of law are brought before the courts in the shape of motions for new trials, or cases reserved. In these cases, which form so considerable a part of the law of England, we depend entirely upon the fidelity and accuracy of reporters, as well for the facts as the arguments and reasoning of the counsel and the court.
The Year Books are the earliest reports we have, altho’ the names of the reporters themselves, or the precise nature of their office, cannot now be ascertained. This office has not been exercised since the early part of Henry the Eighth’s reign, but the industry of voluntary reporters has in some measure supplied the deficiency. Some of the ablest judges of the sixteenth century set the example, and by committing the more important cases and decisions to writing, at the same time dignified themselves, instructed posterity, and improved the science. These gnat luminaries have been followed by other reporters of unequal merit. The office of reporter was again renewed, at the instance of the Lord Chancellor Bacon, in the reign of James I. but does not seem to have been productive of any material advantage, and was soon discontinued.
In the early part of the reign of Charles II. an act passed to prohibit the printing of law books without a licence of the chancellor, the two chief justices, and the chief baron, which was renewed from time to time, but finally expired in the reign of King William. The custom of fixing the imprimatur was continued for many years after the necessity for it had ceased, and till the judges came to a resolution not to grant them any longer. Of late years it has been customary for the proprietors even of diurnal publications, to employ short-hand writers, for the purpose of presenting the public with reports of cases of considerable importance or interest; and it has grown so much into practice, that they arc constantly expected. Thus whatever is said in public, and regards the public, becomes the right of the public to repeat and report; and whether it be the argument of counsel, or the decision of the judge, it is public property. Words have wings, and they are no sooner uttered in public situations, than they are irrevocably passed to all mankind, who are interested in them, and can no longer be confined to place, to age, or to country. We know that the Greeks in general, and the Athenians in particular, delighted in the vehicles of diurnal information; and the Romans, according to Tacitus, were not less partial to them: Diurua populi Romani per provincias, per exercitus, curatius aguntur, quam, ut non noscatur quid Thrasca fectrit.——Tac. Ann. lib. xvi.
If, in spite of our extreme desire to be accurate, we should fail in any part of our reports, it is some consolation, that even such reports may have their use, in as much as it was the opinion of a very great lawyer, that, for the purpose of furnishing an argument, one bad report was worth an hundred good ones. We shall easily obtain credit for the truth of the declaration, that our ambition has an higher object, tho’ an humble one, and we shall have attained our utmost aim if we can merit the praise of useful accuracy.
Before Sir A. Macdonald and a special Jury.
THE KING V. ROBERT MARRIS.
18th September, 1807, an extent issued against the defendant, at the suit of J. S. for £10,022l.
Same day, inquisition taken and debt found.
Sheriff’s return, cepi corpus, and had seized lands, &c.
Plea, Michaelmas Term, 1807.——The said defendant, by his attorney, claimed the property of the several goods, &c. mentioned in the inquisition to the said writ of extent to belong to him; and he prayed oyer of the laid writ and inquisition, which being by him heard and understood, complained that he had been greatly vexed and molested under colour of the premises; because
Protesting that the said writ and inquisition were respectively insufficient in law, where unto he had no occasion, nor was he bound by the law of the land, to answer: nevertheless,
For Plea as to the writ and inquisition, he saith, that before and at the time of issuing the same, the said J. S. was a person carrying on trade and commerce in copartnership, to wit, in copartnership with one T. F.
Protesting, that nothing was due from him, he further says, that if any thing was due from him to the said J. S. the same was due to J. S. and his copartner, and not to J. S. alone; but the said J. S. unjustly and to oppress the said defendant, did wrongfully cause the extent to issue against him; under colour that a large sum was due to J. S. alone, did wrongfully cause the said writ to issue, and the lands, &c. of the said defendant to be seized, and the defendant to be taken and detained in prison; without this, that the said defendant, on the day of issuing the said writ, was justly indebted unto the said J. 8. in 10,022l. or any part thereof, in manner and form in the said inquisition supposed; all which he was ready to verify; wherefore he prayed judgment, and that the hand of our lord the king should be removed from the possession of the said goods, &c. of the defendant.
Replication, 29th Jan. 1808.——And as to the pleas of the said defendant pleaded in bar, Sir V. Gibbs, his majesty’s attorney-general, on behalf of his majesty,
Says, that by reason of anything in the defendant’s plea alleged, the hand of our lord the king should not be removed from the lands, &c. of the defendant, and that the defendant ought not to be restored to the possession thereof; because
Protesting that the plea of the defendant, and the matters therein contained, were wholly insufficient in law to remove the hand of our lord the king from the said lands, &c.; yet, for replication as to the plea of the defendant as to the said writ and inquisition,
Saith, that the said defendant was, on the day of issuing the same, and making the seizure aforesaid, indebted to the said J. S. in the said sum of 10,022l. and he prayed it might be enquired of by the country.
Joinder, 3d Feb. 1808.——And the said defendant, as to the said plea of the said attorney-general, pleaded in reply to the plea of the defendant by him pleaded in bar, and whereof the said attorney-general prayed might be enquired of by the country, &c. saith,
That the said defendant doth the like.
From the evidence produced, the court was of opinion, that the fact of the debt being due to J. S. was clearly established: upon which the counsel for the defendant called upon the crown to prove the quantum of the debt; but it was contended, that it was not incumbent upon the crown in this case to do so; because,
1. The quantum of debt was admitted by the protestation.
2. The inducement to the traverse, asserting a partnership, and stating the debt, if due at all, was due to the firm of S. and Co. and not to S. alone, narrowed the traverse, and confined it to the single question, to whom the defendant was indebted?
In answer to these objections, the defendant’s counsel said,
1. That protesting nothing was due, was a strange way of admitting the whole was due.
2. That it is not averred in the traverse, that the debt was due to S. alone, and that the words, "or any part thereof,” in the traverse, which alone was to be looked to, were wholly inconsistent with the supposed admission.
3. That the issue, if double, should have been demurred to: no objection of duplicity can be taken now; it must be tried as it is.——To this it was replied,
1. That this was the constant form of a protestation, to keep the issue to a single point: it must be considered as an admission in the cause; though, in order to prevent the party from being concluded afterwards, it necessarily takes the form of a denial of the fact.
2. That the traverse, or rather the issue, is not to be taken alone, but as it is narrowed and pointed by inducement.
The defendant had it in his power to deny either the quantum of the debt, or that he owed any thing to the person named in the inquisition, but that he could not do both. He had here chosen to do the latter, and for that purpose admitted the quantum by his protestation; and had further stated such fact in the inducement, as restrained the generality of the words used in the traverse, and confined them to a single point, namely, “the person to whom the money was due,” as much as if the word “alone” had been in the traverse.
That no argument was to be drawn from the words, "or any part thereof,” which had been artfully introduced; but their effect had been foreseen, that they were dropped in the replication, and therefore formed no part of the issue.
That the issue, and not the traverse, was the matter to be tried.
The common form of replication was, "indebted modo et forma;" but here the precise sum is mentioned, because it had been admitted in the pleadings; and for the same reason the words, “or any part thereof,” had been left out.
3. That it is begging the question to say, “that the traverse was demurrable.” If restricted (as contended for on the part of the crown), it is good; but at all events the replication confines it.
The court determined, that it was not incumbent on the crown in this case to prove the quantum of the debt.
For the crown the Solicitor-General, Dampier, & Dauncey.
For the defendant, Holroyd and Abbott.
Before Lord Ellenborough and a special Jury.
THE WET DOCKS.
Chesnaut v. Baynes, Knt.
This was an action against the Wet Dock Company, charging them with having taken into their docks 275 puncheons of brandy belonging to the plaintiff, and with having kept it so negligently that the plaintiff sustained a loss of 509 gallons, there being that deficiency in the quantity between the period when the brandies were gauged by the precise gaugers and the delivery from the docks. The plaintiff insisted that this deficiency was occasioned by pillage, and that the Dock Company being bound to keep all merchandise secure and safe, were liable to make reparation for the loss.——The Dock Company, in their defence, endeavoured to shew that the deficiency arose from natural causes: first, that the brandies were landed on their quays in hot weather, and consequently liable to evaporate from the rays of the sun; and secondly, that the puncheons being made of soft Hamburgh timber, open and full of veins, the liquor had exuded through the pores and a great loss was sustained by leakage. This last point was replied to by stating, that it’ the puncheons were in the condition stated, it was the duty of the Dock Company to have given notice of the fact to the plaintiff, and to have seen that they were properly coopered. The plaintiff, however, was convinced that the imperfect state of the puncheons was an after-thought, and it would be monstrous, it was said, if it were otherwise, as the Dock Company had charged the plaintiff between 2 and 300l. for warehousing, coopering, and keeping safe the brandies in question. Another proof of its being an after-thought was, that the deficiency in some of the puncheons was 10, 12, and 13 gallons, and in others only one: however, as there might be some loss by leakage, the plaintiff was inclined to make an allowance of one gallon in every puncheon, and take a verdict for the remaining loss. This was considered to be a fair proposal by his lordship, who said, he wished the Wet Dock Companies to understand, that they were bound to give notice to the merchants of the imperfect state of their puncheons and packages; to cooper and preserve them, if necessary; and, in short, to give every requisite care and attention the merchandise in their custody should require. The jury found for the plaintiff for a deficiency of 275 gallons, and the duty, amounting to 220l.
A motion was made in the Court of Chancery, Dublin, for an attachment against an attorney, for publishing in the newspapers the proceedings of that court in reversing the decree of another, as it cast reflections on some of the parties, and introduced matter which was hurtful to their feelings.
His lordship said, he was proud to find the proceedings of courts published, and he wished to see a great deal more of them, as they answered most salutary purposes. It shewed the people how to guide themselves when similar cases would occur: and, if judges acted wrong, the proceedings ought to be published. He, for his part, wished every decree he had, or would make, was in every newspaper in the kingdom: if the press were to be gagged, God knows where it would end.
Such language does honour to the head and the heart of the noble and learned lord.