His Honour: Very well, Mr Juteclaw. It must not be bruited abroad that the Irish bench is subject to ‘cold feet’ (Laughter).
Proceeding, Mr Juteclaw said that his client in childhood had lost two fingers during Irish at school. There had been talk of an action against the teacher. This loss had reacted somewhat against his client’s ability as a wage-earner in later life …
His Honour: Re-acted, Mr Juteclaw? Come now. Surely the word we seek here is ‘militated’?
Mr Juteclaw: I accept Your Honour’s correction.
Proceeding, he said the stubs of his client’s missing fingers had never properly healed. His client as a consequence was compelled frequently to have recourse to medical men. In June last year he visited the defendant.
His Honour: Gentlemen, if I may make an observation, the cold up here is fierce.
Proceeding, Mr Juteclaw said that his client’s object in visiting the defendant was to seek treatment for his complaint. He received no treatment whatever and was at no time given even what is commonly known as ‘the lamp’. But after an interval of inaction the defendant cut the plaintiff’s hand off, when the latter was suffering from the effects of some vapour or potent drug, no doubt administered by the defendant. Mr Smoke now found himself crippled for life. He came to court seeking substantial damages.
His Honour: I am perished up here.
Mr Juteclaw repeated that his client was clearly entitled to substantial and heavy damages.
Mr Faix opening the case for the defendant traced the history of professional privilege; the origins of it could be found, he said, in so remote a document as the Hippolytus of Euripides.
His Honour: Now, Mr Faix—jargon! Counsel would do well to eschew rigorously Latinities of doubtful import.
Mr Faix: My reference is rather to the Greek (or Hellenic) era, my lord. I refer to the medico-juridical tenets of the eupatridan or the Eupatridae.
His Honour: Very well, Mr Faix. But I warn you that the case is going very much against you at the moment.
Mr Juteclaw: May I say with respect, your honour, that the plaintiff also relies upon the soothing qualities of the Bacchae of the same deceased Greek.
His Honour: The smoking mixtures favoured by non-nationals are not relevant. My toes are perished. I will adjourn unless this petty matter is hurried on by the parties.
Mr Faix then made several submissions in plain English, and asked that the court should not acquiesce in the villainous attempt to blacken—nay, to denigrate—the character of a selfless servant of the suffering poor.
His Honour, giving judgment, dismissed the action, the parties to pay their own costs. A hand, he said, must have five fingers, otherwise the English language is a ‘mockery, a delusion and a snare’. Plaintiff’s ‘hand’ had only three fingers. Therefore no action for the cutting off of a hand could succeed. If the pleadings were altered to read ‘hand’ rather than hand, the case could be re-entered. If counsel concerned themselves more with English rather than with Latinities primitive and barbarous of sound, of content usually licentious, the work of the court would be facilitated.
Mr Faix, thanking his honour, asked for guidance as to the meaning of the phrase ‘the parties to pay their own costs’.
His Honour: It means what it says.
Mr Faix: In a lifetime at the bar I have never heard the phrase. I have frequently heard the phrase ‘abide their own costs’. I respectfully ask for guidance.
His Honour: I think the tea-pot swarms with nectar in my room. I have received a wink from my tipstaff.
His Honour then left the bench. The Clerk made another entry in his books under the head of ‘Held, by Twinfeet J.’
ONE OF THE cases called the other day at the Cruiskeen Court of Voluntary Jurisdiction concerned (of all things) immoral literature. A shopkeeper was up for ‘exposing’ for sale a book which, while not indecent, was in its general tendency indecent.
Twinfeet J., mounting the bench, asked counsel to remember his implacable hostility to locutions tortuous of syntax, imponderable of meaning and not intelligible save by reference to ‘asiatic philologies’. ‘No jargon, now,’ he added. ‘What’s on the bill to-day?’
Mr Faix: My Lord, I appear for the defendant. Although a member of the Gaelic League, a fluent speaker of Irish and a graduate of Cardinal Newman’s university, he is charged with dealing in immoral literature.
His Honour: Come now, Mr Faix. How could it be literature if it is immoral? Do you mean literary immorality?
Mr Faix: No doubt I do, my Lord.
Mr Lax said he appeared for the authorities ‘in this sordid case’ and proceeded to make several important submissions. He hoped to show, he said, that the work in question sprang from a licentious, gross and diseased mind.
His Honour: Mr Lax, the niceties of our flexible English tongue must not be permitted to lapse by reason of the haste or indifference of learned counsel. A work could not ‘spring’ from such a mind. It could, however, emanate.
Mr Lax: I accept your Lordship’s correction.
Mr Faix: As to subtleties of expression (if I may say so with respect, my Lord)—De minimis non curat Lax.
His Honour: One could refer, Mr Lax, to the depravity of the author’s concepts ‘emanating as they do, from a diseased mind’.
Mr Lax: Thank you, my Lord, I again accept your correction and guidance.
His Honour: It is as well that we should take care, for indecencies are also possible in the sphere of Saxon grammar. One must not mate our gentle tongue with negroid importations from regions barbarous of character, of situation transalpine. Counsel jeopardise their advocacy, not to say their client’s guinea, by such conduct.
Mr Faix: I humbly beg your Lordship’s pardon.
After Mr Lax had made several further submissions, his Honour remarked that the punctilio of judicial processes should occasionally be cast aside in order to afford the bench some small clue as to the nature of the issue it was called upon to determine. ‘Gentlemen,’ he added, ‘is this book you have there any good? I mean, is it … very bad? Is it disgusting, I mean?’
Mr Lax: It is filthy, my Lord.
His Honour: Have you read it, Mr Lax?
Mr Lax: Certainly not, my Lord. I would not soil my eyes with such nefarious trash, my Lord.
His Honour: Mr Lax, I have reason to suppose that in the privacy of my room Sir Tipstaff is far from idle. He has settled a certain pot upon the hob. A potion golden of hue distends that humble vessel. Hand me that book. The court is adjourned for one hour. I will proceed with the trial solus and in chambers.
On resumption, His Honour delivered judgment.
According to the cover which clothes the work in question, he said, the title of it is Madame Bovary and is the work of one Frenchman, by name Flaubert. In addition to this explanatory printed matter, the cover also bears the likeness of a lady, executed by the lithograph process and in that pink hue which is generally held to be agreeable to the senses. The lady, while not dressed for the street, is withal attired. Her costume would appear to belong to a by-gone age, when frugality in all things was apparently the custom of the day. The picture, while tending to immodesty according to the severer standards of the present age, could not reasonably be held to be indecent, or so tending in general tendency. The work itself I have submitted to what I may claim to be a fair examination. My pronouncement upon it must be accepted as verified within the limits of human prudence. The tone throughout is elevated, urbane, even technical. It appears to be ‘An Outline of Irish Grammar’ and is the work of the Irish Christian Brothers. The work bears no obvious relation to the illustration I have mentioned. The case must be dismissed with costs.
THE OTHER DAY in the Court of Voluntary Jurisdiction this man Smoke again sued a well-known Dublin surgeon for malicious damage to an attache case. It will be recalled that Smoke failed in a suit against the same man for cutting the hand off him.
Twinfeet J., mounting the bench, remarked that ‘that was a hardy one�
�.
Mr Faix, speaking on behalf of the Dublin Bar, agreed that the day was cold.
His Lordship: How did ye all get over the Christmas.
Mr Faix: Er—suitably, my Lord.
His Lordship: Do you know what it is, there is a lot of bad stuff going around. If ever one of the criminals responsible is brought before me, I warrant you that I will make an appalling example of him. But pray let us to business. Where is the fire, Mr Faix?
Mr Faix: The fire, my Lord?
His Lordship: I observe this man Smoke in court. You cannot have Smoke without fire. (Laughter.)
Mr Juteclaw: I recall appearing for a man called Feier, a German gentleman, about ten years ago. (Laughter.)
His Lordship: Very well, Mr Juteclaw. Now, Mr Faix, Feier away with your case. (Laughter.)
Mr Faix, opening the case on behalf of the plaintiff, said he did so because the plaintiff was unable to open the case himself, owing to the fact that he was crippled.
His Lordship: Which case?
Mr Faix: The attaché case.
His Lordship: I think you’d better call it the bag.
Mr Juteclaw: Possibly your lordship might agree that it would be more appropriate to call it the casus belli.
His Lordship: Philologo-juridical obscurantism sits ill upon the mantle of Dame Justice and will not be permitted to besmirch the fair name of this court. (Laughter.)
Mr Juteclaw: To express your lordship’s meaning in another way, one dissociates the Latin lex from the Greek he lexis, speech.
His Lordship: I do not care a rap who likes his speech, Mr Juteclaw. Mr Faix, kindly continue with your learned submissions. Come now—action! I’m perished here.
Mr Faix, re-opening the case for the plaintiff, showed the court the interior of it. The leather was extensively stained with blood. Continuing, Mr Faix said that he was instructed that this was the blood of the plaintiff. From a previous hearing he was familiar with the melancholy fate to which the plaintiff had been subjected by the defendant. On that occasion the defendant, working under cover of noxious fumes administered to the plaintiff, had cut off the latter’s hand, crippling him for life. A suit for damages had failed owing to a technicality. On the occasion of this bloody rendezvous, the plaintiff had taken the precaution of bringing with him his pyjamas in an attaché case, understandably suspecting that he might find himself in hospital as a result of the defendant’s treatment. But when the plaintiff emerged from his stupor he was unceremoniously pushed into a taxi, bag and all—
His Lordship: Mr Faix, I think the word is ‘bundled’. Also, I think one associates ‘baggage’ with ‘bag’ according to the correcter usage of our old tongue.
Mr Faix: I accept your lordship’s correction. When the plaintiff reached home he collapsed. Many months afterwards, when he had recovered somewhat, his landlady, a most respectable widow lady, asked him when she was going on holiday, to give her a hand with the packing. He generously lent her his attaché case, I will spare the feelings of the court as to what followed, but in justice to my client I am bound to say that when the case was opened, it was found to contain the plaintiff’s hand having been callously placed there by this monster the defendant. I intend to call this widowed lady and she will show—
His Lordship: May I ask is this the lady demure of aspect who sits by the side of Mr Smoke?
Mr Faix: None other, my Lord.
His Lordship: As head of this court a terrible responsibility rests upon me. Indeed, ‘devolves upon me’ would be a better term. I cannot run the risk of hearing irrelevant evidence. I must therefore first interview the lady in the privacy of my chamber. She will now be conducted there, and the court must be adjourned until to-morrow.
Mr Juteclaw: I protest, my Lord. This is most irregular.
His Lordship: Protest away.
Mr Juteclaw then said that in view of his lordship’s attitude he had no alternative but to gather up his papers and withdraw. He then gathered up his papers and withdrew.
In his book, under the head of ‘Held by Twinfeet J.,’ the Clerk waggishly entered the phrase ‘One plump widow’.
WHILE IT IS possible for our judges, by mere dint of swotting, to familiarise themselves with positive (or statute) law, there is ample evidence every day even in attenuated newspaper reports, that our jurists are weak in what is called case law. They know little or nothing about the grandiose dicta of decent Irishmen like Palles C.B., Bray J. or Madden J.
In the old days when it was a question of finding what was the meaning of the Malicious Damage Act of 1861, we old circuit men found ourselves in a very tortuous maze of juridical obscurantism. Take section 17. ‘Whosoever shall unlawfully and maliciously set fire to any stack of corn, grain, pulse, tares, hay, straw, haulm, stubble, or of any cultivated vegetable produce, or of furze, gorse, heath, fern, turf, peat, coals, charcoal, wood or bark, or any stack of wood or bark … shall be liable … to be kept in penal servitude for life …’ Now in Rex v. Woodward it was a question of setting fire to a stack of barley, produce not covered expliciter in the section. In the case quoted, the offence was held indictable within the section, the court taking judicial notice that ‘barley is corn or grain, and that beans are pulse.’ Moreover, ‘a stack of the flax-plant with the seed or grain in it, is a stack of grain.’ (Reg. v. McKeever, I.R. 5 C.L. 86; 5 I.L.T.R. 41. On the other hand ‘rushes and sedge are not straw within 7 Will. 4 & 1 Vict. c. 89; Reg. v. Baldock, 2 Cox C.C.55.)’ Furthermore, ‘a quantity of straw if packed or erected on a vehicle which is capable of being moved is not a stack of straw’: (Reg. v. Price, I.C. & P. 729). Also, a hay-cock has been held not to be a stack of hay, per Fitzgerald, J.
Under Section 15, which deals with malicious damage to agricultural machinery, an attempt was made to obtain compensation for damage to a plough. Held by Johnson J. that a plough is not a ‘machine’ or ‘engine’ within the meaning of the statute, a contrary decision in H.M. courts notwithstanding. Incidentally, I notice it stated in the text-books, in relation to the Shops Acts 1912, that ‘the waiters who attend upon the resident guests in an hotel are not shop assistants within the Act’ (Gordon Hotels v. London C.C.). I concur. They’re just waiters.
Twinfeet J., of course, has made many strange pronouncements in the Court of Voluntary Jurisdiction. In an action brought under the Marine Hereditaments (Compensation) Act, 1901, a man who lived in an old boat located on a hill sought damages from another man who had been (as alleged) negligent in the management of a dinghy on a trolly (which he was bringing to the railway station) so as to cause the dinghy to collide with the old house-boat. The defence was that the latter structure, being rated to the poor rate, could not be a boat, vessel or ship and that the dinghy, being a land-borne wheeled article, was not a dinghy but a velocipede. Twinfeet J. inquired whether it was suggested that a small paddle-steamer was a farmcart but the defence submitted that inasmuch as a paddle-steamer could not be hauled by a horse, mule, pony, jennet, donkey or ass, it could not be a farm-cart within the meaning of the Farmcarts Act and must in fact be a paddle-steamer. The plaintiffs contended that they were the aggrieved parties in a naval collision and entitled to recover damages and compensation from the defendants, who had been negligent in the management of sea-going craft, which was their property and under their care and management. The defendants pleaded alternatively that the ‘house-boat’ was ‘wreckage’ within the meaning of the Wreckage Act.
Twinfeet, J., in the course of a long judgment, said that he could find nothing in the Act or indeed in any statute regulating matters of admiralty which made water an essential element in a collision between boats; he was satisfied that the owners of the dinghy had been negligent in the navigation of the dinghy ‘Marcella’ at the junction of Market Street and Dawson Hill. He assessed damages at £4 and excused the jury from service for a year on the ground that they had been at sea for four days.
THE DEBATING Society of the Clerical staffs attached to the Central Banking Corporation met last Saturday,
Twinfeet J. in the chair.
Proposing the motion ‘That the Pen is mightier than the Sword’, Mr Chaine said that from time immemorial far beyond the dawn of history, the human race had evinced respect for the dignity of the human intellect. This respect had not only successfully weathered the ravages of time, but also the savage attacks of marauders, particularly in monastic times. All great human revolutions had been inspired by the pens of great thinkers, who probed into human destiny with the timeless insight of genius. He asked the house to endorse what he made bold to term ‘The Primacy of the Pen’ by a unanimous vote.
Mr O’Queen, opposing the motion, stated that a walk through any museum would prove that the development of the human body was the dominant characteristic of the glory that was Greece. Literature and the arts could only flourish in a civilisation which had been founded by those who wielded the sword. To admire the sword was not necessarily to endorse the principles of militarism, the doctrine of physical force, or the unprincipled maxim that might is right. The development of the body could be secured without oppressing minorities or waging war, and such development inculcated sportsmanship and manliness. The Boy Scout movement was a case in point. The House would remember the sentiments so felicitously expressed by no less a poet than William Wordsworth:
‘To hold the fight above renown
To hold the game above the prize,
To honour as you strike him down
The foe that comes with fearless eyes.’
He asked the house to endorse Aristotle’s motto of mens sana in corpore sano (‘a healthy mind in a healthy body’) by unanimously rejecting the motion.
Miss Eiderdown said it was nothing less than a negation of democracy to suggest that the ordinary man in the street, whose interest in literature and art was of the meagerest, was inferior to so-called writers or ‘Knights of the Pen’ as they would no doubt dub themselves with a conceit that was typical.
Best of Myles Page 15