ACTS IN THE LAW.

New Zealand Illustrated Magazine, Volume VII, Issue 3, 1 December 1902, Page 229

ACTS IN THE LAW.

By CLAUDE H. WBSTON.

NOW ,and again in the dry textbooks and dusty law reports are to be caught glimpses of a world outside pleadings

and actions , costs and damages — stray bits of philosophy emanating from the minds of such judges as Lords Brougham and Bramwell, humorous " obiter dicta/ homely advice. The judges themselves are not the only source of humour. In the index of cases may be seen, and may it be seen with sorrow, a name that ought to figure anywhere but there.

Reported in nine American cases, page 345, is the case of the Society lor the Propagation of the Gospel in Foreign Parts versus The Town of Newhaven. There are hidden pages in the lives of most of us, and even, it seems, the propagation of Holy Writ must be accompanied by a sowing of wild oats. Perhaips such a leaf as this should be sealed up until the Great Day of Reckoning, but there is a duty owing to the public, and what excuse can this seemingly worthy society have for brawling with a dignified muncipality ? And, indeed, this was not the only instance, for on a further inspection of the digest it appeared that the Society had another quarrel — this time with a mati named Wheeler. Such a contentions spirit in a society of this nature must be deplored.

The case of Thirty Hogsheads of Sugar versus Boyle was a pathetic one. A stern fate had condemned those unfortunate barrels of sweetness to a life of unrest. Ownerless they wandered from land to land, and from Court to Court — quarrelled over here, the subject of litigation there ; at last having lost their savour, to be emptied upon some judicial dust heap.

In the case of Tillet versus Ward, it appeared that an ox, while being driven through a town, strayed into a butcher's shop — it may be with the idea of communicatingwith departed spirits of his kind — a little jaunt after communion that cost his owner £7 11s 4d.

In Yuille versus Swan, a balloonist came to grief. His descent into a m^n's back garden attracted a crowd that, ,-with royal carlessmess, trod upon all the cabbages and asparagus, for the loss of which the parachutist was held liable.

In the law of defamation is seen the elevation of hair-splitting to an art. The distinction between legitimate abuse and actionable slander is an extremely fine one, and the jurists in their anxiety to define it have recorded many instances of our forefathers' love of calling 1 each other names. To say of a lawyer, " that he hath as much law as Master Cheyney's bull," is objectionable, and to call an attorney "an honest lawyer " was also considered a sufficient foundation for an action, because, as the judge said, " it was clearly ironical." " Thou art a sheep- stealing rogue, and Farmer Parker told me so/ cost a worthy countryman of George TlT.'s time a few pounds in damages, while his neighbour, who said of a Justice of the Peace/ " He is a blood-sucker, and sucketh blood," escaped scot free, " for it cannot be intended what blood he sucketh."

Our judges from the time that cases were first reported have been much exercised as to the phenomena of intellect. "It is trite law," observed Chief Justice Brian in the seventeenth year of Edward IV. 's reign, " that the thought of man is not triable, for even the devil himself does not know what the

thought of man is." But with what seems a retrogression towards materialism, Lord Justice Bowen said in a recent case, " that the state of a man's mind is as much a fact as the state of his digestion/

From Coke and his predecessors to Herschell the judges have been a virile race — with what nerve have they tackled the intellectual problems before them, and tempered their decisions with such strong common sense.

Curiously enough their suggested analogies are often charmingly naive. In Keeble versus Kickeringell Chief Justice Holt, in discovering a parallel to the case in point,, said, " If H should lie in the way with guns, and fright the boys from going to school, and their parents would not let them go thither, that schoolmaster would have an action for the loss of his scholars." Whether a jury of schoolboys would award their master damages in such a case, was not 'considered in the judgment of the learned Chief Justice.

Again, in a case where a man was found dead upon a railway

crossing, the judge wisely held that action would lie against the Bailway Company, as there was no evidence to show whether the train ran into the man or the man into the train. Yet they are our creditors and our debt to these strong, and with few exceptions, upright men is a larger one than perhaps people realise. At one time King James 11. desired a judicial decision in favour of his assumed prerogative of suspending the operation of statutes. " I am determined," said His Majesty to Chief Justice Jones of the Common Pleas, "to have twelve judges who will be all of my mind as to this matter/ " Your Majesty," answered the Chief Justice,., "may find twelve judges of your mind, but hardly twelve lawyers/ He was then plainly told that he must either give up his opinion or his place. " For my place," he answered, " 1 care little. lam old and worn out in the service of the Crown, but I am mortified to find that Your Majesty thinks me capable of giving 1 a judgment which none but an ignorant or a dishonest man could 2 - ive/'