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defendant pleaded that he had long loved the said plaintiff, whereof she had notice; but that not regarding him, she had wholly neglected and refused to entertain his said suit. And he farther said, that he had at length so much prevailed upon her the said plaintiff, that she undertook and faithfully promised the said defendant to give him the said kiss; yet that, not regarding her said promise and undertaking, she the said plaintiff had always, up to the time of the said supposed grievance, excused herself from so doing, sometimes alledging to the said defendant that she had been prevented therefrom, and at other times asserting that it was not a proper opportunity in that behalf.And the said defendant affirmed that he had been for the space of three months in pursuit of the said kiss, which was a great pity.
And he further said, that on a certain day, when Danger was absent, he prayed the said plaintiff to perform and fulfil her said promise and undertaking; but perceiving that the said plaintiff was not willing so to do, he then and there took the said kiss, as it was lawful for him so to do. -And he prayed his costs.
“ And the said plaintiff for replication said, that she did not undertake or promise in manner and form as the said defendant had above alledged, for that the said promise was a conditional promise only, to wit, at the will and pleasure of the said plaintiff, when and where it should please her the said plaintiff to fulfil the same.
“ And the said defendant for rejoinder said, that the said plaintiff did undertake and promise, in manner and form aforesaid, without this, that* the said promise was conditional. And he further said, that though there had been neither gift nor promise, that he reasonably deserved to have for his care, diligence, and attendance given and bestowed by him the said defendant in the service of the said plaintiff, at least the reward of the said kiss, and that it was therefore lawful for him the said defendant to take out execution for the same, and to possess himself thereof as of his own proper goods and chattels, which had come to his possession by finding. And he concluded as before.
“ And now the parties having been heard, and mature deliberation being thereupon had, the Court gave judgement for the defendant, and decreed the plaintiff to pay costs. And the Court further directed the said plaintiff specifically to perform her said promise, at the instance and request of the said defendant, no account being taken of the said former salute."
The great utility of these institutions is very conspicuous in the following case. From that it appears, that the jurisdiction of the Courts of Love extended even to the regulating the minutest points of decorum in the intercourse of polished society.
be necessary to inform our lay readers, that this is the form of a denial or traverse. The strict technical words are, without this, that, &c. absque hoc, quod; sans cei que. 1 Saund. 22. But equivalent words are sufficient, and therefore a traverse, by the words et non, will have the same effect. 1 Lev. 192.
The grievance complained of in the case we are about to cite, is one of considerable magnitude (we speak from experience) even at the present day. Nor is there, as we apprehend, any mode of redress upon such occasions. To expostulate with the lady is impossible. The only method of relief now acknowledged, (and a most pregnant proof it is of the barbarity and degeneracy of the age), is to call out the brother of the offending lady. But how much more preferable is a civil proceeding before such a tribunal as the Court of Love.
“ This was an action brought by the plaintiff, a lover, against the defendant, to whom he was attached, for refusing to dance with him*. The declaration stated, that on, &c. at, &c. the plaintiff had requested the said defendant to dance, which she, without any reasonable cause in that behalf, refused to do, alleging a certain frivolous excuse. That afterwards the said plaintiff did again, with great earnestness, humbly request the said defendant to dance a few steps with him, to save him, the said plaintiff, from being laughed at, by certain persons then and there present, which she also refused to do. And he averred that he had on divers occasions moved to the said defendant, and taken off his hat whenever he, the said plaintiff, met her. Yet, although the said defendant well knew that he was stricken with, and loved her, she nevertheless wholly disdained and refused to speak to him the said plaintiff; or if at any time the said defendant said · How d’ye do’ to the said plaintiff, it was with a toss of the head of her the said defendant. The declaration concluded in the usual manner.”
* The art of dancing has seldom come judicially before our courts of law. The only case in the books, which we remember, connected with this subject, is reported in Littleton's Rep. 268. It is thus cited by Chief Baron Gilbert, in his Treatise on Tenures, 228. ". There is the case of Caslon and Uthert, where a widow had copyhold lands, and divers persons came for the rent, whom she put off with delays; at last comes a young gentleman, and demands it; she answered that she did not know him, but if he would dance before her, if she liked his dancing, she would pay him. This denial was adjudged no forfeiture, not being wilful.
Out of Court, however, it is well known that dancing was one of the favourite amusements, and, indeed, stated exercises of our old lawyers. Upon certain solemn occasions the ceremony of dancing round the coal fire was performed by the greatest dignitaries of the law. But that lapse of time which encrusted the shield of Scriblerus with its invaluable rust, has deprived us of many of our most ancient and excellent customs. The last time this ceremony took place was in the year 1733, when M. Talbot took leave of the Inner Temple, on having the Great Seal delivered to him. We shall take the liberty of giving the account of these judicial gambols, as we believe it is not to be found in any other place than the notes to Wynn's Eunomus. After
VOL. V. PART I,
“ The defendant suffered judgement to go by default, and now on this day the Court pronounced sentence.
“ The Court decrees the defendant to dance with the plaintiff, whether she wishes it or not; or, at all events, to dance a few steps with him. The Court permits the plaintiff, when the defendant and another are seeking for a third to form a pas de trois, to step in, without asking permission, and to form the third; and the Court being informed that the defendant has spoken contemptuous words of its process, and said that the plaintiff would lose his labour in suing her, permits the plaintiff to pass her without moving to her, or saying how d'ye do,' and declares him exempt from courtesying to her during the dance, as others are used to do. And the plaintiff is to have his costs.”
We have given the preceding cases at length, in order to afford some idea of the proceedings in these courts; we shall now abridge a few of the most curious reports.
An action was brought by the heirs of a lover to compel a lady to shew them the same politeness which their ancestor had always experienced from her. They alleged that they had discovered, amongst the papers of the defunct, an agreement, by which the defendant had bound herself to wish the deceased good-day whenever she met him, and to make him a courtesy, and they said that, as heirs at law, they were entitled to the benefit of this agreement.
describing the dinner, and the play which was afterwards acted in the Inner Temple Hall, the narrative thus proceeds.
“ After the play, the Lord Chancellor, Master of the Temple, Judges and Benchers, retired into their Parliament Chamber, and in about half an hour afterwards came into the hall again, and a large ring was formed round the fire-place (but no fire nor embers were in it). Then the Master of the Revells, who went first, took the Lord Chancellor by the right hand, and he, with his left, took Mr. Justice Page, who, joined to the other judges, serjeants and benchers present, danced, or rather walked, round about the coal-fire, according to the old ceremony, three times, during which time they were aided in the figure of the dance by Mr. George Cooke, the Prothonotary then of sixty; and all the time of the dance the ancient song, accompanied by music, was sung by one Toby Aston, dressed in a bar gown, whose father had formerly been master of the Plea Office in the King's Bench.”
How amiable and how engaging must this spectacle have been! No doubt the custom was founded in the wisest purposes. Thus to mingle in all the festive amenities of life was well calculated to soften that ruggedness of character, and that harshness of feeling, which the pursuits of a lawyer are but too apt to superinduce. However, if tradition speaks true, these effects were not perceived in the case of Mr. Justice Page.
The defendant insisted that the contract was merely personal, and that it could not descend to the representatives of her lover, after his death.
The plaintiffs contended that if any thing had been due from their ancestor to the defendant, they would have been answerable to her.
To this the defendant replied, that there was a great distinction between debts or goods and chattels, and the personal property of Love; and she insisted that if judgement were given for the plaintiffs, she should be burthened with making two courtesies instead of one.
Judgement was given for the defendant*.
An action was brought by a young married lady against her husband, for not allowing her to wear a gown and a bonnet made in the newest fashion. The pleadings ran to a considerable length, and the Court declared that the matter should be referred to two milliners, who should report thereon, and if any thing objectionable were found in the fashion of the gown and bonnet, the Court directed that the referees should call in the assistance of two ladies, on the part of the plaintiff, and two on the part of the defendant, to assist them in their judgementt.
An action was brought by the plaintiff against the defendant, for having pricked him with a pin whilst she was giving him a kiss. The defendant denied ever having given the plaintiff a kiss, but, on the contrary, said that the plaintiff had taken it; and she said that the wound, if any, had happened only by mischance and accident.
* This decision is exactly conformable to our law, the rule of which is, that actio personalis moritur cum persona. Thus, if A. commits an assault and battery on B., and B. dies, his representatives will have no right of action against A. Or, to put a stronger case, if A. by negligence drives his gig against the wife of B., whereby both her arms are broken, B. may maintain an action against A. for that damage; but if A. runs over the wife of B. and kills her on the spot, B. has then no remedy against A.
It is not without cause that our law is said to be the perfection of human reason.
+ The Benchers of our inns of court formerly exercised a jurisdiction similar to that of the Court of Love, in the principal case. Thus, we find they made an order, prohibiting the students at law in the Temple from employing too great an extravagance and splendour in their dress, and commanding them to array themselves in garments of a sad colour. The reader will immediately perceive the resemblance between the case cited, and the petticoat case reported by the Tatler, we believe No. 416.
Certificates from several surgeons were produced of the nature and extent of the wound, and the Court sentenced the defendant to kiss the wound at all reasonable times, until it was healed, and to find linen for plaisters.
We shall conclude our extracts with two cases; the one, from André the Chaplain, the other from a Tenson, or poetical report given by Mr. Raynouard.
A lady imposed on her lover an express condition never to praise her in public. The knight in a large company heard some observations made in disparagement of his lady. Unable to contain himself, he repelled the accusations, and launched forth in her praise. The lady contended that he had broken the condition, and therefore forfeited all claims to her favour. The Countess of Champagne, however, before whom the cause was tried, decreed that the condition was illegal*, and that the knight was justified in defending the character of his lady.
Nor will the English law lend its aid to enforce a condition, which is either impossible or illegal. An instance of the first is given in Co. Litt. 206: “ If a man be bound in an obligation, &c. with condition that if the obligor do go from the church of St. Peter, in Westminster, to the church of St. Peter in Rome, within three hours, that then the obligation shall be voyde—the condition is voyde and impossible, and the obligation standeth good.” With regard to conditions, &c. which are illegal, the law will never suffer them to be carried into effect by any contrivance. The following case is a strong proof of this doctrine. It was a bill in the Exchequer, brought by an highwayman of the name of Everett, against his companion Williams, to compel him to account for a moiety of the partnership effects. It did not state the unlawful employment in direct terms, but notwithstanding that, the court would not entertain the application. The bill stated that the plaintiff was skilled in dealing in several commodities, such as plate, rings, watches, &c.—that the defendant applied to him to become a partner; that they entered into partnership, and it was agreed that they should equally provide all sorts of necessaries, such as horses, saddles, bridles, and equally bear all expenses on the roads, and at inns, taverns, or ale-houses, or at markets or fairs. your orator and the said Joseph Williams, proceeded jointly with good success in the said business, on Hounslow Heath, where they dealt with a gentleman for a gold watch, and afterwards the said Joseph Williams told your orator, that Finchley, in the county of Middlesex, was a good and convenient place to deal in, and that commodities were very plenty at Finchley aforesaid, and it would be almost all clear gain to them ; that they went accordingly and dealt with several gentlemen for divers watches, rings, swords, canes, hats, cloaks, horses, bridles, saddles, and other things; that about a month afterwards the said Joseph Williams informed your orator, that there was a gentle