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Chapter XII
'Prentice Days in the Courts

In the same month that I began practice I made my first appearance in a civil case in the Supreme Court. I was so fortunate as to be retained as junior in an important action between an hotel company and a newspaper company, which occupied adjoining premises in Christchurch. The defendant's printing machines, it was alleged, made so much noise at night that they interfered with the slumbers of the plaintiff's guests. The case, which lasted six days, excited a considerable amount of public interest, and as my leader assigned me the opening address for the plaintiff, it gave me a good "kick-off" in my new profession. Legal argument was removed by consent into the Court of Appeal, and this afforded me the opportunity of appearing before that tribunal also at an unusually early stage in my career, though this time only in a "heavy thinking part." The Court of Appeal granted the injunction sought by the plaintiff; but the Privy Council, alas! reversed that decision later. I felt myself fortunate in holding my first civil brief in a case which, if one may judge by the frequency with which it is cited in the Law Reports and referred to by the text-writers, is deemed page 155to have "made law," though not the law the plaintiff hoped to establish.¹

The leader to whose good offices I was indebted for this useful "first footing" was my friend Mr. T. W. Stringer, K.C.—now my "brother," Mr. Justice Stringer. Opposed to him was Mr. J. H. Hosking, K.C.—now Sir John Hosking, also in after-years a Judge. I still have, pasted into an old scrap-book, a slip of paper I am very proud of. It was flicked across the Counsels' table to me when 1 resumed my seat after my opening address, and on it are written the very generous and encouraging words, "Very excellently done. J. H. Hosking." That was in February 1905. Twenty years later—in February 1925—I had the very great honour of being invited to fill the vacancy on the Supreme Court Bench created by his retirement.

For the information of readers who are not New Zealanders, it is convenient to explain here that in this Dominion the Judges of the Supreme Court are also Judges of Appeal. There are nine Supreme Court judges, of whom one holds the rank of Chief Justice, primus inter pares. Grouped into two divisions of five—the Chief Justice being President of each Division—they constitute the Court of Appeal which holds sittings three times a year, always in Wellington. Appeals from a single Judge, therefore, are determined by his brethren, sitting three or more together. And so, said the late Sir John Salmond on his own elevation to the Bench, Judges in New Zealand have still left to page 156them one enjoyment in life—the melancholy pleasure of reversing each other's decisions.

But several years were to pass before cases of such interest came regularly my way. In the meantime I gathered valuable experience in the humbler Courts presided over by Justices or Stipendiary Magistrates.

My first case in the Magistrates' Court, I remember, was one in which my client, Mrs. Bridget O'Halloran, sued Mr. Timothy Brosnahan for "goods bargained and sold," to wit, a prime "porker." The defendant's solicitor, who also claimed the shamrock as his national emblem, reminded me years afterwards of what he thought my unusual and unconventional opening.

"If your Worship pleases," said I, "in this case I labour under great disadvantages. The plaintiff is Irish and the defendant is Irish; my learned friend is a Dublin man; and the matter in litigation is a pig!"

"Sure, your luck is clean out," said the genial Magistrate, "for my own forbears came from Connemara! But," he reassured me, "I'll try to give you justice for all that!"

And he did, too: three pound ten's worth—and costs.

My next case, oddly enough, was also about a beast—this time a bullock. The defendant kept a large boarding-house and had bought the bullock from my client "for the table": he now refused to pay for it on the ground that the meat was "unfit for human consumption." The beast had been killed for him, not by an expert slaughterman but page 157by a friendly neighbour, I elicited from the defendant that this neighbour was really a shoemaker by trade. Here, obviously, was the explanation why the flesh of my client's "prime beast" was so tough—faulty killing, of course!

The defendant looked a temptingly stupid witness, so I tackled him.

"Have you never heard the old adage about the shoemaker and his last?"

But the stupid-looking one was not so stupid as he looked.

"Well, you know," was his answer, "now that you remind me of it, that meat was rather like leather."

I did not pursue that line of cross-examination any further.

It is often the most unlikely-looking witness who "scores off you"; and beware of the witness who does that, especially if there is a jury in the box!

I had to examine a very old man once; a tall, erect man with a long white beard, I remember. He looked benignly innocent and quite free from guile. But he was an old "West Coast" miner, and I ought to have known better. I had gone "special" to the West Coast on a mining case, and as the office of the solicitor who retained me was much too small for the purpose, I had engaged a sitting-room at the hotel in which to hold a conference of witnesses the night before trial, and of course true "miners' hospitality" had to be dispensed at intervals during the evening.

It was necessary, for some purpose or other, to elicit the exact age of the old man; so at the end page 158of my examination I asked him how old he was. He appeared to resent the question.

"And what do you want to know my age for, young feller?"

"I merely want his Honour to see what a very fine memory you have got for a man of your years."

This, I thought, was rather adroit; and it appeared to mollify him, for he answered at once, "Eighty-five."

But his resentment returned—perhaps he thought I had been "soft-sawdering" him.

"Look'e here, young feller," he said, "I saw you do two things at Keller's'public' last night that I have never done in my life—not yet—although I am eighty-five."

It would never do to shirk; I must take whatever was coming to me; so I asked him politely what the two things were.

And then, with withering contempt for me, as a modern decadent, came his answer:

"Carrying a walking-stick and mixing water with your whisky!"

It was in this same case that I had very explicit Instructions with regard to one of the witnesses for the other side—a man with many years' experience as a working miner. "This man will certainly lie; you must cross-examine him into a cocked hat." It is so easy for the solicitor at his desk to engross on counsel's brief these illuminating "Notes on the evidence," and so very difficult for counsel in Court to carry the instructions out.

The moment the witness stepped into the box I saw that he looked a shrewd and competent man and would not be easy to fit with that "cocked hat" page 159the solicitor spoke so glibly about. So I "skirmished round" warily. I began by asking his opinion of the value of certain mining claims— "Rimu Flat," "Seddon's Terrace," and "Hangman's Gully"; but he professed to have no knowledge on the subject. So I tried a little flattery—as I thought.

"But I would like to hear your opinion on these matters—you no doubt have some opinion—as a mining expert."

"God forbid!" was the disconcerting answer; and then, seeing I looked nonplussed, the witness himself came to my rescue:

"But if you ask me as an experienced miner now——"

I had not known before that moment that in the mining districts of New Zealand, and in the vocabulary of working diggers, "mining expert" is the accepted synonym for "rogue" and "sharper."

The prospects of fitting the witness with that "cocked hat" did not look very bright, I thought.

In the days when I first practised, most of our Stipendiaries were laymen. Of those I most frequently appeared before, one was a retired naval officer, and another had been a Major in the Army and had fought in the Maori Wars. They were both men of the world, with a shrewd knowledge of life, gathered from more reliable sources than books, and both were gentlemen. They had far too much natural dignity to need to assume any of the "official" variety, and they were content to rely upon the knowledge of law possessed by Counsel without attempting to air their own.

One day when I was appearing before the Major page 160in a country Court, I was particularly anxious to nonsuit the plaintiff without going into evidence on behalf of my client, the defendant. If I succeeded on the nonsuit point I should be able to catch the afternoon train back to town instead of spending a night in a second-rate boarding-house in a no-licence town; and the Major, I knew, would no more relish a night in a "dry" district than I would.

I was just getting into my stride and developing my submissions for a nonsuit when I observed, to my indignation, that the Magistrate was fast asleep!

"Look," I said to my "learned friend" at the counsel table beside me, in a voice that was meant for a whisper—"look, the damned beak's asleep!"

"Yes?" said the Magistrate, his eyes wide open —"I am afraid I didn't quite catch your last sentence."

"I was about to submit——" I began in some confusion.

"By the way," his Worship interposed, "have you noticed that this page of the plaintiff's ledger has clearly been tampered with? There are several erasures, and at least three different shades of ink."

This was the very point I relied upon; but I had sense enough to pretend that I had not seen it.

"No, sir; as a matter of fact I hadn't noticed it; I am indebted to your Worship for pointing it out; and as your Worship has detected it yourself, I won't take up any more of the time of the Court."

The plaintiff was promptly nonsuited with costs, and we all caught the train.

That night I chanced to meet the Major at bridge. He was in his best form and took 1,500 points off page 161me. As he pocketed his winnings at the end of the game he said to me with his characteristic chuckle:

"I hope you have found the'damned beak' wide-awake enough for you this evening! As a matter of fact, you did send me to sleep in Court to-day; but when you are annoyed—and you were annoyed this afternoon, you know—you whisper like a megaphone!"

The Major was a most agreeable man to appear before; you could always depend on him to relieve the tedium of the dullest case by some whimsicality or other; but anything approaching "high falut in'" from counsel received short shrift at his hands. I remember being present in his Court one day when he was relieving in Timaru. It is necessary to explain that about a mile to the north-west of the town is the suburb of Smithfield—appropriately ned, for in it are situated large freezing works where "prime Canterbury" Iambs are slaughtered and frozen for export, and there, too, are the municipal abattoirs. When the wind sits in that corner you know all about it.

A painfully earnest and entirely humourless solicitor was up to defend a woman charged with fortune-telling. His client, he urged, was not a common fortune-teller; she was a spiritualist—a member of "a recognised religious sect," who was merely practising the rites of her religion according to its tenets. This, said the earnest one, was not a prosecution, but a persecution. He rose to his theme:

"We don't want to import into this young country" (I am not sure he did not call it "God's own country") "the religious feuds and persecu- page 162tions of the old. We don't want to rekindle in our midst the martyr-fires of Smithfield——"

"No," said the Major sharply, "certainly not; there are quite enough bad smells from Smithfield as it is. Forty shillings and costs. Next case."

We have a great variety of Courts in New Zealand, and in those early days I practised in most of them. But one Court I fortunately managed to steer clear of—the Native Land Court—for I despaired of understanding the intricacies of Maori tenure.

But as there was a native settlement close to Timaru I had quite a large Maori clientele, and was from time to time engaged in litigation in which Maoris were concerned. It all originated in a very trumpery case, which, however, firmly established my mana (prestige) among them and brought me much business in subsequent years. I was instructed to defend a Maori on a charge of netting trout in the Temuka River. My poacher client was a shrewd young fellow, quite a personage in the tribe, who of course looked upon him as a much wronged individual and something of a hero. On the other hand, the Acclimatisation Society's ranger, who had caught him red-handed, was about as popular in the Kainga as a process-server in an Irish village or a customs gauger in a Scotch one.

I had expected the case to be heard before the local Justices, and this had emboldened me to propound a defence which I could scarcely hope to succeed with if an experienced Stipendiary were on the bench. It had at least the merit of novelty, and it certainly sounded plausible. It was a constitutional argument based on the second Article of the Treaty of Waitangi (1840). By its terms, in page 163consideration of the cession by "the Chiefs of the Confederation of the United Tribes of New Zealand "of ail their" rights and powers of sovereignty":

Art. II. Her Majesty the Queen of England confirms the guarantees of the chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, and fisheries.

As the eel-weirs of the tribe had been set in the Temuka River from time immemorial, this attempt by a pakeha society to restrain the members of the tribe from netting a stray trout—a trespasser at best !—was an unwarrantable interference with their ancient rights of fishery and contrary to the terms of the Treaty in that behalf made and provided.

Unluckily a Magistrate came out from Timaru to hear the case, and he ruthlessly swept aside my portentous constitutional argument by distinguishing between indigenous fish covered by the Treaty and the immigrant "rainbow," progeny of ova imported by the Acclimatisation Society's from England long after the solemn pact had been entered upon.

But the mere fact that my client was convicted and fined mattered nothing; that was only one more "injustice to Ireland." What did matter was that this champion of ancient rights had had a good run for his money, and that I had taken my stand firmly upon the sacred charter of Maori liberties—the Magna Charta of New Zealand.

And so I was a very fine fellow indeed, and everything was Kapai. page 164Maoris dearly love a lawsuit; the more witnesses there are and the longer it lasts the better they like it. But they are naturally law-abiding people, and the percentage of criminals among them is not large. Oddly enough, forgery is the crime to which they seem to be most addicted. This is partly perhaps because Maoris when educated are usually expert writers; but it is also due to the fact, I think, that the mysteries of banking at once attract and puzzle them. If a Maori is informed that his account is overdrawn, the course that most naturally suggests itself to him is to write a cheque to put it in credit.

A story long current, and often told, is so characteristic that I am tempted to repeat it:

A pakeha, who ought to have known better, sold a horse to a Maori for £20 and accepted payment by cheque. A few days later the Maori, calling at the post office in the township, received a replypaid telegram, "Sorry lost your cheque: please stop payment." The postmaster offered to write out the reply for him, and asked what answer he should send. The Maori scratched his head and looked puzzled for a moment. Then his face cleared and he said brightly, "Tell him 'You no worry; cheque stop himself.'"