Maxims of Equity II
Bill Long 11/28/04
The Case of The Highwayman
We learned from the previous essay that the "common wisdom" among Equity treatise writers was that the origin of an important equitable maxim may have been in a shadowy case named "Highwayman." The maxim--'he who comes to equity must come with clean hands'--means that you must be free from the taint which you allege in someone else for the transaction in question.
The Case Itself
For years no one really believed that the case of the Highwayman, where one robber brought suit against another for division of the profits of their joint venture, actually existed. It was "equitable myth" or "equitable lore," told around the 18th and 19th century equivalents of the water cooler, to illustrate how dumb some people can be and how righteous the courts can be.
A 1930 article in the American Bar Association Bulletin, however, tried to get to the bottom of the case and, though not always clearly written, points to the details of the case in Evans' 1808 edition of Pothier on the Law of Obligations and the 5th edition of Lindley on Partnership. Here is what these notes tell us about a case that arose around 1725.
The plaintiff was a John Everet, the defendant was Joseph Williams, and Everet's attorney was William Wreathock (or Wreathcock or Wreathocke--you get the picture). The Bill in Equity alleged as follows:
"the plaintiff was skilled in dealing in several commodoties, such as plate, rings, watches, & c.; that the defendant applied to him to become a partner; and 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, alehouses, markets and fairs [you can tell that a lawyer is drafting this, can't you?]..."
Stop just for a minute. Are you laughing yet? The lawyer is trying to pitch a common scheme of knocking over unsuspecting travelers as a partnership with agreement to divide proceeds of the joint venture equally. Let's continue.
"the plaintiff and the defendant proceeded jointly in the said business with good success on Hounslow Heath, where they dealt with a Gentleman for a gold watch (I am sure they did); and afterwards the defendant told the Plaintiff that Finchley, in the county of Middlesex, was a good and convenient place to deal in, and that commodities were very plenty at Finchley."
You see, it wasn't just in the 1980s that the workplace had to be "flexible" to accommodate the demands of the business. Let's read on to learn how they did at Finchley:
"that they went accordingly, and dealt with several gentleman for divers watches, rings, swords, canes, hats, cloacks, horses, bridles, saddles and other things."
The defendant continued to be helpful in this venture, and they then met a Gentleman at Blackheath. This man:
"had a good horse, saddle, bridle, watch, sword cane, and other things to dispose of, which he (the defendant) believed might be had for little or no money; that they accordingly went and met with the said Gentleman, and after some small discourse they deal for the said horse."
The rest of the Bill was in the typical form for a partnership accounting. The defendant had, apparently, made off with more than his share. The total "take" for the "partnership" was alleged to be 2,000 Pounds Sterling--a very hefty sum. What result? The note in Pothier goes on to say that the court was not convinced for a moment but immediately dismissed the with costs to be paid by the Counsel who signed the pleading; and the Solicitors for the Plaintiff were attached and fined 50 Pounds Sterling. Then this chilling note follows: "The Plaintiff and the Defendant were, it is said, both hanged and one of the Solicitors for the Plaintiff was afterwards transported."
But this reference to "afterwards" is a bit misleading. Actually Wreathock paid the fine and decided he himself would then take up the life of a highwayman. Maybe he perceived that the line between being a lawyer and being a highwayman was fuzzy indeed. Maybe he thought that since he had already drawn up an impressive pleading in another case, he would have it "ready" when he was caught. In any case, he seems to have been caught doing his highwayman thing, and was convicted of robbing a certain Dr. Lancaster in 1735. For this crime he was sentenced to death but the sentence was commuted, and he was "transported."
What does it mean that the Solicitor was "transported?" It doesn't mean that he was driven home. It means, in this case, that he was "transported" to the American colonies, no doubt setting up legal shop in New Jersey or someplace else. Transportation of convicts had begun as early as the late 1590s (39 Elizabeth 4), and was a pretty typical remedy for people that England didn't want around by the early days of George I (1718). Such transportation to America became impossible after 1776; the scene then switched to Australia and other places.
But we are not yet done with our story yet. The next essay will complete the story.
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