Bardell v. Pickwick

“You will have noted, Gentlemen, this curious feature of the case. None of the witnesses were in the room when the imputed proposal was made, yet all, Cluppins, Weller, and the Defendant’s three friends, heard what the Defendant said. This suggests that he must have been very pressing, if not agitated. One of the witnesses, Winkle, I think, yes, Winkle, actually deposes to hearing the words, ‘My dear creature! Compose yourself’ and the like. He added he was afraid someone might come in; a very reasonable fear, Gentlemen, and well grounded: for several persons did come in and it would seem with awkward results for the Defendant. But, Gentlemen, I confess that what most of all weighs with me in this case is the remarkable avowal wrung from a reluctant witness, of the Defendant’s being surprised at midnight in a lady’s bed-chamber, and being taken, after a serious riot, before the Magistrates. This came on me, as I saw it did on you all, as a surprise. True, it does not bear on the question of a promise or of the breach. But still it seems a matter which you cannot wholly shut out from your consideration. It startled me as it did you, to find a sort of travelling philanthropist, as the Defendant Pickwick holds himself out to be, on whose mildly benevolent features nature seems to have stamped rectitude and high principle, living a life of hypocrisy, taking part in midnight invasions and daylight riots. It is one of his own friends who tells us this sad story: and it is for you to consider whether the Plaintiff was here also in pursuit of yet another disreputable game, holding out marriage as the bait: I seem to speak strongly, but I feel it would be impossible to withdraw this from your consideration.

“You may reasonably ask yourselves of what Pickwick was afraid – or why did he dread the presence of witnesses? Was he simply beguiling the lady, as he attempted to beguile that lady at Ipswich, without ‘meaning business,’ as the phrase runs. I must say the Plaintiff had rather reasonable grounds for assuming that the Defendant did mean business. But all this is for you, Gentlemen, not for me.

“Then we have the man Weller’s statement – a sort of humorous stage servant, not unamusing – and of course entirely devoted to his master’s interest. I don’t think you need attach any importance to what he said of the solicitors for the Plaintiff. When I was at the Bar, Gentlemen, attornies did much worse things than this.”

The jury consulted for only a few minutes. Perhaps, however, they were only discussing the amount of damages. They were certainly moderate – laid at £1500 – though had Dodson and Fogg’s advice prevailed, it should have been double. This only, by the way, is further proof of the amiable Mrs. Bardell’s moderation and secret tendre for her genial lodger. Considering that Mr. Pickwick was ‘a gentleman,’ and further a gentleman of means, and that Mrs. Bardell was but an humble lodging-house keeper, the sum seems hardly commensurate. Dodson and Fogg no doubt expected £1,000.

An anxious quarter of an hour elapsed; the jury came back; the judge was fetched in. Mr. Pickwick put on his spectacles, and gazed at the foreman with an agitated countenance and a quickly beating heart.

‘Gentlemen,’ said the individual in black, ‘are you all agreed upon your verdict?’

‘We are,’ replied the foreman.

‘Do you find for the plaintiff, gentlemen, or for the defendant?’

‘For the plaintiff.’

‘With what damages, gentlemen?’

‘Seven hundred and fifty pounds.’

Mr. Pickwick took off his spectacles, carefully wiped the glasses, folded them into their case, and put them in his pocket; then having drawn on his gloves with great nicety, and stared at the foreman all the while, he mechanically followed Mr. Perker and the blue bag out of court.

They stopped in a side room while Perker paid the court fees; and here, Mr. Pickwick was joined by his friends. Here, too, he encountered Messrs. Dodson and Fogg, rubbing their hands with every token of outward satisfaction.

‘Well, gentlemen,’ said Mr. Pickwick.

‘Well, sir,’ said Dodson: for self and partner.

‘You imagine you’ll get your costs, don’t you, gentlemen?’ said Mr. Pickwick.

Fogg said they thought it rather probable. Dodson smiled, and said they’d try.

‘You may try, and try, and try again, Messrs. Dodson and Fogg,’ said Mr. Pickwick vehemently, ‘but 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.’

‘Ha, ha!’ laughed Dodson. ‘You will think better of that, before next term, Mr. Pickwick.’

‘He, he, he! We’ll soon see about that Mr. Pickwick,’ grinned Mr. Fogg.

Speechless with indignation, Mr. Pickwick allowed himself to be led by his solicitor and friends to the door, and there assisted into a hackney-coach, which had been fetched for the purpose, by the ever watchful Sam Weller.

Sam had put up the steps; and was preparing to jump upon the box, when he felt himself gently touched on the shoulder; and looking round, his father stood before him. The old gentleman’s countenance wore a mournful expression, as he shook his head gravely, and said, in warning accents:

‘I know’d what ’ud come ’o this here mode ’o doin’ bisness. Oh Sammy, Sammy, vy worn’t there a alleybi!’

We may wonder that the laborious Chamber Counsel Serjeant Snubbin did not advise “moving for a new trial.” The verdict was clearly a wrong one – no sufficient evidence had been furnished either of a promise, or a breach. The full court would no doubt have granted the motion, and this would have led to Mr. Pickwick’s release, for the astute Dodson and Fogg must have recognised their poor chances, and perhaps have required “security for costs,” which their client could not have given. However, the idea did not occur to anybody.

Since the law was changed both plaintiff and defendant may be examined in such cases as these. What a different complexion this would have put on the suit. The whole case would have tumbled to pieces like a pack of cards. For Mr. Pickwick “put into the box” would have clearly shown that all that had been thus misconstrued, was his proposal for engaging a valet, which was to have been that very morning. He would have related the words of the dialogue, and the Jury would have seen at once how the mistake arose. On the other hand, he would have been exposed to a severe rating cross examination by the learned Serjeant – fortified by Winkle’s most damaging slip about the White Horse incident – who would have forced out of him all the incidents. We can almost hear the Serjeant subject the Defendant to the torture.

“This fellow of yours, Sir, was he recommended to you by a friend?”

“No – not at all.”

“By a Registry Office?”

“Certainly not – nothing of the kind.”

“Nothing of the kind? I suppose too low a class of place for you, eh? Come Sir!”

“I never said such a thing.”

“Nor thought it, I suppose? Come, Sir, no beating about the bush. In plain terms, did you get him from a low Public House in the Boro’?”

Mr. Pickwick started up.

“Never!”

“Do you deny it?”

“I never knew that the White Hart was a low Public-House,” said the witness indignantly.

“Never mind what you know, Sir. Did you or did you not get him from there?” thundered the Serjeant.

“Of course I did.”

“Of course you did. Then what’s the use of all this juggling. It does you no good with My Lord and the Jury. I tell you plainly, Mr. Pickwick, we mean to have all out of you. Now Sir, was this man of yours an experienced valet?”

“Certainly not.”

“He had, of course, some training in his profession in other families?”

“Not that I know of.”

“Not that you know of. Do you dare to persist in that, Sir?”

“Why not?”

“Don’t ask me questions, Sir, I’m asking you. Do you deny, Sir, that the man was neither more nor less than a common Boots in the yard of a Public House, wearing an old tattered hat and jacket – very different from the suit in which you have rigged him up here to-day?”

Mr. Pickwick was astonished and silent. He was suffering. He had never dreamed of this view.

“Why,” he said, “I suppose – ”

“We want none of your supposes, Sir, answer yes or no.”

“Well he certainly was such as you describe.”

A flutter ran round the court.

“And this creature of yours, you would impose on the Jury as a trained man servant. You may go down Sir.”

PLEA FOR “DODSON AND FOGG.”

This famous firm of city attornies has become a bye-word in legal history – being considered the most notorious of practitioners for sharp, underhand, scheming practices. Boz was always vehement against the abuses of the law, but his generous ardour sometimes led him to exaggerated and wholesale statements that were scarcely well founded. This is found in some degree even in the sweeping attacks in Bleak House. But he was so vivid, so persuasive, in his pictures, that there was no appeal.

The unreasoning fury of Mr. Pickwick is specially shown in the case of Jingle, whom he pursued with an animosity that was almost frantic. One would think it was some public enemy he was hunting down for the public good. Poor Jingle had really done nothing so monstrous, after all. He had “chaffed” Dr. Slammer, “run off” with the spinster aunt – nothing so uncommon in those days – had been consigned to the Fleet for non-payment of his debts, and there showed penitence and other signs of a good heart. His one serious offence was passing himself off as a naval officer, and under an assumed name. But he had crossed Mr. Pickwick – had ridiculed him – had contemptuously sent a message to “Tuppy.” When he dared to play a practical joke on his persecutor, his infamy passed beyond bounds. Here was the key to Mr. Pickwick’s nature – any lack of homage or respect was an offence against morality. So with Dodson and Fogg. He had settled in his mind that a condescending visit to these gentlemen, with a little explanation and remonstrance would completely disarm them. His fury on his advances being rejected was extraordinary.

Here Boz shows, as he ever does, his profound and most logical treatment of human character. He never goes astray, being guided by a happy and true instinct. Mr. Pickwick had grown to be the most inflated of men. Flattered and followed – submitted to with the greatest deference – ordering people about – doing what he pleased – he could not stand the slightest opposition. No one was to contradict – no one to question even his stockings – speckled or others. Even when he was clearly wrong, it was an affront to hint at it. He had much in common with that great man, Mr. Gladstone, who was the political Pickwick of his time. He was overbearing and arrogant and unrestrained, and I am afraid vindictive. Dodson and Fogg were associated with the great mortification of his life. He could not forgive them – the very sight of them roused his hatred, and the having to pay them ransom stung him to fury. All which is most natural and yet unexpected.

The popular and genial Sir Frank Lockwood was almost the first to put forward a plea in abatement of prejudice for the firm. He showed that they were not much below the usual type of middle-class solicitors. What they did was in the ordinary course. With Mr. Pickwick they were most forbearing, and even indulgent. There was one rather doubtful passage, but even here he offers extenuation. This was their treatment of poor Ramsey, which, at first sight, seems very bad indeed.

‘There was such a game with Fogg here, this mornin’,’ said the man in the brown coat, ‘while Jack was upstairs sorting the papers, and you two were gone to the stamp-office. Fogg was down here opening the letters, when that chap we issued the writ against at Camberwell, you know, came in – what’s his name again?’

‘Ramsey,’ said the clerk who had spoken to Mr. Pickwick.

‘Ah, Ramsey – a precious seedy-looking customer. ‘Well, sir,’ says old Fogg, looking at him very fierce – you know his way – ‘well, Sir, have you come to settle?’ ‘Yes, I have, Sir,’ said Ramsey, putting his hand in his pocket, and bringing out the money, ‘the debt two-pound ten, and the costs three pound five, and here it is, sir;’ and he sighed like bricks, as he lugged out the money, done up in a bit of blotting paper. Old Fogg looked first at the money, and then at him, and then he coughed in his rum way, so that I knew something was coming. ‘You don’t know there’s a declaration filed, which increases the costs materially, I suppose?’ said Fogg. ‘You don’t say that Sir,’ said Ramsey, starting back; ‘the time was only out last night, Sir.’ ‘I do say it, though,’ said Fogg, ‘my clerk’s just gone to file it. Hasn’t Mr. Jackson gone to file that declaration in Bullman and Ramsey, Mr. Wicks?’ Of course I said yes, and then Fogg coughed again, and looked at Ramsey. ‘My God!’ said Ramsey; ‘and here have I nearly driven myself mad, scraping this money together, and all to no purpose.’ ‘None at all,’ said Fogg, coolly; ‘so you had better go back and scrape some more together, and bring it here in time.’ ‘I can’t get it, by God,’ said Ramsey, striking the desk with his fist. ‘Don’t bully me, Sir,’ said Fogg, getting into a passion on purpose. ‘I am not bullying you, Sir,’ said Ramsey. ‘You are,’ said Fogg; ‘get out, Sir, get out of this office, Sir, and come back, Sir, when you know how to behave yourself.’ Well, Ramsey tried to speak, but Fogg wouldn’t let him, so he put the money in his pocket, and sneaked out. The door was scarcely shut, when old Fogg turned round to me, with a sweet smile on his face, and drew the declaration out of his coat pocket. ‘Here, Wicks,’ says Fogg, ‘take a cab, and go down to the Temple as quick as you can, and file that. The costs are quite safe, for he’s a steady man with a large family, at a salary of five-and-twenty shillings a week, and if he gives us a warrant of attorney, as he must in the end, I know his employers will see it paid; so we may as well get all we can out of him, Mr. Wicks; it’s a Christian act to do it, Mr. Wicks, for with his large family and small income, he’ll be all the better for a good lesson against getting into debt, – won’t he, Mr. Wicks, won’t he?’ – and he smiled so goodnaturedly as he went away, that it was delightful to see him. ‘He is a capital man of business,’ said Wicks, in a tone of the deepest admiration, ‘capital, isn’t he?’

The other three cordially subscribed to this opinion, and the anecdote afforded the most unlimited satisfaction.

‘Nice men these here, Sir,’ whispered Mr. Weller to his master; ‘wery nice notion of fun they has, Sir.’

Sir F. Lockwood, by the way, offers one of the most amusing proofs conceivable, of the convincing power of “Pickwick,” which is constantly taking us out of the world of fiction, into that of the daily living life. He speaks of the cruel trick played upon the unfortunate Ramsey, who came to pay his bill of costs, and was told that these were out of date, had been swelled by subsequent proceedings. An affidavit had been sworn – which, after he left the house, Wicks, the clerk, was sent off to swear – Then, Sir Frank, adds: “After all, this is merely given as the statement of Wicks—on whose testimony not much reliance can be placed.” As though Wicks were some living witness, “erect upon two legs,” whom he had been examining in Court!

It must, however, be recollected that this was an exparte story. Wicks, as Sir F. Lockwood hints, may have coloured it up, to amuse his brethren. The truth is these poor helpless debtors, who fall into the hands of legal “sharks” and money-lenders, have their tricks also. They will often “do” those they employ if they can. And further, let this be considered. Before Ramsey paid his visit the affidavit had been prepared, and was actually in Fogg’s pocket. Such affidavit would not be allowed for in the costs unless necessary to the case, so that Fogg’s statement that it had been filed was very near the truth. Perker himself was playing the same game of hide and seek with another unfortunate – one Watty – who was trying to see him, and learn something about his case, but was always put off with the excuse or falsehood, that Perker was out, though he was within. But then, “Perker was an honourable man.”

Boz lets us know, through Sam, how the case reached Dodson and Fogg. He speaks of “the kind generous people o’ the perfession ’as sets their clerks to work to find out little disputes among their neighbours and acquaintances as wants settlin’ by means of law suits.” This system, however, cannot be checked, and “the speculative attorney” even in our time still flourishes.

It was really not a question whether Mr. Pickwick would “indict them for a conspiracy,” because they acted as solicitors against him, but whether they would bring an action against him on their own account. All through, Mr. Pickwick’s behaviour to them had been outrageous. He chose to assume, quite gratuitously that it was they – not Mrs. Bardell – who got up the case; that they had worked on her for their own nefarious ends. Nothing could be more absurd. The landlady was eager enough to protect her own interests – her female friends worked on her, and the loss of so valuable a lodger, which the incident must have entailed, inflamed her more. We can see from Sam’s interview with her that she was at last, though at first reluctant, determined to have her rights. But Mr. Pickwick acting on this assumption addressed the firm, from the first to the last in the most scurrilous language. He called them “robbers, swindlers, – a brace of pettifogging scoundrels!” Shocking and ungentlemanly terms, and what is worse, actionable. Yet the pair received this abuse with infinite good temper and restraint, merely securing a witness who should listen, and threatening the speaker with legal penalties.

And why did they not take this course? Well, they had to suspend proceedings until Mrs. Bardell’s action was settled, when on receiving their costs they were desirous to part in good humour. But Mr. Pickwick was so furious at being invited to shake hands with them, that he again broke out with coarse abuse, “Robbers!” “Robbers!” calling it after them down the stairs. Why did they not take action on this? Perhaps they were afraid; as Mr. Pickwick had shewn himself such a doughty and unyielding fighter – going to prison rather than pay. Perhaps they thought he might get the better of them again.

We have very little evidence as to what was the scale of fees in use in these days. They were of course far lower than they are now, after allowances even for the lower cost of living. To-day, the fees to Counsel alone would have absorbed considerably more than Dodson and Fogg’s whole bill of costs. A nice point is, could Mr. Pickwick’s irregular interview with Serjeant Snubbin be considered something in the way of a consultation? Here were Counsel, Solicitor and Client: the Serjeant gave up a portion of his valuable time and, further, the junior counsel was summoned specially from his chambers to supply his “advice and opinion.” Mr. Pickwick ought surely to have to pay for his whim. And the bill of costs that these “sharks” of attornies sent in! It was astonishingly moderate. For writ, service of subpœnas, hunting up evidence, consultation, fees to counsel, fees for the day, retainers, etc., – the sum of £120 was all that was asked.

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.”