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Cheerful Yesterdays

Chapter XIII — At the Bar in Christchurch

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Chapter XIII
At the Bar in Christchurch

In October 1907 I established myself as a barrister and solicitor in Christchurch. I hoped my fellow-citizens would have forgotten by this time that I had once been a schoolmaster. I took care, by suppressing the letters I was entitled to write at the back of my name, and relying solely on those in front, to avoid all suggestion of the academic in my professional make-up.

I occupied offices in Cathedral Square, on the first floor of a building of which the ground-floor was tenanted by the District Agent of the Public Trustee—Mr. M. C. Barnett, who was fortunately a personal friend. My "staff" was one small boy at 7s. 6d. per week; my friend's staff was only three men and a lady typist, but the business of the Public Trustee was fast expanding, and to-day, twenty years later, there are about a hundred clerks in the Christchurch Branch. But to occupy rooms immediately above the Public Trust Office was a trying experience. Each day I would see from my window—I had little to do at first but look out of the window—three or four widows, sometimes more, crossing the Square from the tramway stop, and making straight for our building. But which floor? Would one of them ever mount the stairs page 166to instruct me to apply for probate of the will of her departed spouse? At last the great day came. The "staff," with an expression of hope and importance on its face, put its head inside my door, and whispered, "A lady to see you, sir"; then, placing in front of me a slip of paper with her name on it, and bringing forward a chair for her, showed her in. The name was familiar to me— I had seen the death of her husband announced in the papers a few days before, and I said something appropriately sympathetic as I asked her to be seated. She took some documents out of a reticule she carried, obviously the will, and then, as though se[gap — reason: illegible]ed with some doubt or misgiving, she said, "I have come to the right place, haven't I? You are Mr. Barnett, aren't you?" "No, madam, no—downstairs, madam," and I showed her out, I can well believe, in much the same tone and with much the same gesture as I had used in College theatricals twenty years before when I played the part of the Crushed Tragedian.

But good came of it, for when I told my friend Mr. Barnett he laughingly promised to send upstairs to me his office affidavits, and there were enough of these to pay my rent for the first month or two. Subsequently I got a brief here and a brief there, till, during the last six or seven years I was in practice I held practically all the briefs, of the Public Trust Office at Christchurch, to my no small profit, and, I hope, to the advantage of the Public Trustee, for I lost only one case for him in all those years.

When work did begin to come in, it came at first in the shape of Police Court cases; and I know of page 167no better school in which to learn the art of advocacy. At the second quarter sessions after I had set up in practice in Christchurch there were eight criminals for trial. I defended six of them, and was so lucky as to get an acquittal in every case. My fortune, I felt, was made. With such an auspicious beginning I must soon have the leading criminal practice. But, alas for the fickleness of burglars and their kind, it was nearly two years before I got any more criminals who, from a financial point of view, were worth having.

My very first criminal client, I remember, was a woman, big, buxom, and decidedly hefty, of the same profession, and I should think much the same temperament, as Falstaff's Doll Tearsheet. She was charged with assaulting an intruder with a flatiron. This she had used with such good effect that some of the alterations to his physiognomy, I believe, remained permanent. "Provocation and self-defence" was the only way out for me, and I made the best of it. Unfortunately my client was indicted under the name of Beatrice Too Fee, being in fact married to a Chinaman who kept an opium den. This would be likely to prejudice the jury strongly against her. Luckily she had, or affected, a slight brogue, and by carefully referring to her always as "Mrs. Toovey" I hoped to produce the impression on the jury that her husband was an Irishman. She had paid me a good fee, she was my first criminal case, and she was a woman—everything was there to stimulate my efforts, and I think I missed nothing. My address to that jury was a forensic tour de force. I overwhelmed the hapless prosecutor with ridicule and invective, and invoked page 168in favour of my client every sentiment of chivalry and mercy that could be wrung out of twelve jury hearts. In spite of the strength of the case for the Crown, I secured a triumphant acquittal. Next day my friend the Crown Prosecutor told me he had asked the Judge what he thought of my maiden effort. "Well," said Denniston J., "of course he got her off, but there were moments when I wondered if he confused the defence of Beatrice Too Fee with the Impeachment of Warren Hastings." That case was my first, and my last, experience in "forensic oratory" after the early Victorian manner.

I soon had a lucrative crop of divorce cases. These were not as numerous in New Zealand then as they have become since the Great War, but they were comparatively profitable. In my experience, four out of five divorces in New Zealand, perhaps nine out of ten would be more accurate, are undefended. Most of them are grounded upon desertion, or upon an agreement to live apart, in force for three years or upwards.1 So far from the respon-

1 The grounds on which a divorce may be granted in New Zealand either to a wife or husband are: (1) adultery, (2) desertion for three years, (3) habitual drunkenness for four years coupled in the case of a husband with habitual cruelty or habitual failure to support, in the case of a wife coupled with habitual neglect of domestic duties, (4) sentence of seven years or more for attempting to murder or doing actual bodily harm to the petitioner or a child of the petitioner or respondent, (5) unsoundness of mind from which there is no likelihood of recovery, and detention in a mental hospital for seven years or upwards, 6) failure to comply with a decree for restitution of conjugal rights, (7) de facto separation for three years and upwards under a decree of judicial separation, a summary separation order made by a magistrate, a deed or agreement of separation, or separation by mutual consent, whether in writing or not, provided that the respondent does not oppose the petition and prove that the separation was due to the wrongful act or conduct of the petitioner.

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rushing in with an "appearance" and "answer," it is sometimes a race between husband and wife as to who shall be the first to start proceedings. Any common-law clerk of average competence can take all the preliminary steps, and your appearance in Court as counsel seldom takes more than fifteen minutes. My own record at the Bar was nine decrees nisi in forty-eight minutes; but that was an exceptional morning. I had an important case to attend to in another Court, and the Registrar very obligingly helped me by grouping my cases together and by accelerating the procedure. My petitioners and their witnesses were ranged in a queue behind me on the floor of the Court like theatre-goers on a "first night." I think the Judge must have helped also, and entered into the spirit of the thing. Perhaps he too was seized for the moment with the prevalent New Zealand passion for record-breaking.

My first client in divorce, I remember, was a grocer's assistant, an insignificant little wisp. His wife, a tall, handsome woman, had abandoned him for a lover, a fine figure of a man, who might well be supposed to have supplanted the insignificant grocer in his wife's affection by reason of his manly graces. But that was not the motive she gave for running away. The respondent was a factory inspector, and when the Judge asked her why she had left her husband and children in this way she na?vely confessed that she wished to better her social position !

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In another case the petitioner was a middle-aged woman, uncomely in appearance, but the sole proprietor of a very flourishing little drapery business. She took into her employ as "first counter hand" a handsome young fellow, of good address and good manners, who must have been ten to fifteen years her junior. He soon discovered, to his great embarrassment, that he had won the virgin affections of the elderly spinster. He must either capitulate or resign from his well-paid post. The business was exceedingly prosperous, as he very soon learned from experience in the shop. He was artfully made aware that the business was not her only asset—there were shares in one or two mercantile concerns, and even in a brewery. And so he succumbed to temptation—he married the shop and took over the coy proprietress as part of the stock-in-trade. But repentance followed fast upon the heels of romance. At the end of three months he fled ignominiously, and was not heard of again.

When the statutory period for desertion—I think it was five years in those days—had elapsed, the lady bethought herself of seeking her freedom, possibly with a view this time to marrying her shopwalker. Inquiries of the usual perfunctory kind were set on foot to ascertain the whereabouts of the husband. As no trace of him could be found anywhere in the Dominion, application was made to the Court for leave to proceed on substituted service, by advertisement or otherwise, or to dispense with service. The affidavit setting out the efforts made to find the respondent and their nonsuccess, together with other relevant facts in support page 171of an application to dispense with service, had actually been engrossed, and she was to come into my office next morning to swear it. She came at the appointed time, an excited and distracted woman. "I can't swear it," she sobbed—" I can't swear it. I know now where my husband is." "How do you know?" I asked. "I saw him last night, for the first time for six years, at the Starland Picture Theatre." "What," I said, "is he in Christchurch?" "No," she sobbed, "he was on the screen, with the heroine in his arms—k-k-kissing her." And her sobs rose to a wail of jealous anguish. I consoled her by pointing out that this inopportune discovery of her husband's where-abouts really did not matter; it entailed merely a few pounds of extra expense, and a delay of three months till the next sittings of the Court. The respondent was duly served at the studio, "theater," "movie factory," or whatever else they call it, of the Metrograph Film Company, Inc., Los Angeles, California, U.S.A. The handsome young draper's assistant, it is interesting to know, is now a cinema actor of rising fame.

My first libel action presented a difficulty of an unusual kind. The plaintiff had been libelled in a paper called Norton's Truth, at that time a New Zealand reprint of a well-known Sydney weekly. The paper had published two columns of grossly defamatory matter charging him with dishonesty. Unless he vindicated his character in the Courts, and that promptly, the effect upon his personal as well as his business reputation would be ruinous. But the proprietor of the paper was at the time travelling. He was away on a twelve-months' trip page 172to Europe and America, and many months must have elapsed before personal service of proceedings could be effected. The paper, however, was on sale in the shops of various newsvendors, small booksellers, and even tobacconists in the town, and any of these would be liable if they merely sold a copy of the paper, though no jury would award heavy damages against an innocent vendor in such circumstances. The immediate need, however, was to clear my client's character—damages could be left to a second action against the proprietor of the paper when he returned from abroad. So I selected a tobacconist in the town, who I thought would be good for reasonable damages if they were awarded. I sent a clerk to his shop to buy a copy of the issue of Norton's Truth which contained the libel, and followed this up with a writ claiming £250 damages.

The case looked easy to win at that stage. The defendant did not plead justification. Had he done so, he would have aggravated the damages enormously, for there was not a tittle of truth in the infamous charges made against the plaintiff. The defendant, therefore, merely pleaded ignorance of the contents of the paper which he had sold, and expressed regret for the defamation contained in it. Nothing could be simpler; for so gross a libel the plaintiff was sure to be awarded substantial damages, especially as the tobacconist in handing the paper across the counter to the clerk had made the casual but very significant remark, "There's a pretty hot article in this number on B—" (naming the plaintiff).

On the very morning of the trial, however, the page 173plaintiff told me something which he had hitherto withheld because he had hoped it might not leak out, but about which at the last moment he became nervous. It was this: he himself was the proprietor of a bookseller's business, and he now admitted that early on the day of issue, before he became aware of the libel on himself contained in the paper, an assistant in his own shop had actually sold nine copies of it across the counter! I realised at once that if this fact were brought out at the trial, the plaintiff would be lucky to get forty shillings; he might conceivably have to content himself with a farthing; for such a case of pot calling kettle black would never be tolerated by a jury. I could not afford to take any risk in the matter. Defendant's counsel would certainly know of the circumstance, and would, of course, cross-examine on it. It became, therefore, impossible to put the plaintiff in the box. But a plaintiff coming into Court to vindicate his character and avoiding going into the box where he would be subject to cross-examination was, in my experience at any rate, unheard of in a libel case, and he could not expect to get much damages. I had no choice, however, and happily the plaintiff's evidence was not necessary to prove his case. I called but one witness—the clerk who had bought the paper, and so proved the publication by the defendant. And then, to the chagrin of my adversary and the surprise of the Judge, I closed my case.

Fortunately the defendant had not been content with local counsel, but an advocate of brilliant attainments and great reputation in jury cases had been sent down from Wellington to take the defence. page 174He was a master in the art of ridicule—I knew no man better able than he to "laugh a case out of Court," if he had the material to make the laugh with. He did not call evidence. Proof that the plaintiff had sold nine copies of the paper would not have been admissible as evidence in chief, however destructive of the plaintiff's case, if elicited in cross-examination; and my redoubtable opponent of course relied upon his last word to the jury. There appeared only one way to mitigate the consequences of the omission to put the plaintiff in the box. So I pretended to take the jury frankly and humbly into my confidence.

"Much will be said by my learned friend when he addresses you about the plaintiff's failure to go into the witness-box. Much ingenious speculation as to his reasons for not doing so will doubtless be indulged in. My friend will put forward many extravagant theories, and I am sure they will all be amusing—but they will all be wrong. I am going to be quite honest with you, and tell you frankly why the plaintiff did not go into the witness-box. Till this morning he had every intention of doing so. He came here ready to do so, and as you see, he has been sitting here beside me throughout the trial. Had the defendant been represented, as the plaintiff is, by a member of the humbler local bar, he would have given evidence without hesitation. But when this morning we learnt that my learned friend, with his reputation as a redoubtable and irresistible cross-examiner, had come down from the capital city to overwhelm my humble client and his humbler local advocate—well, gentlemen, he funked it."

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I rather flattered myself I had done something by anticipation, at any rate, to take the sting out of my opponent's rhetoric; and so it proved, for the jury awarded £100 damages. When the proprietor of the paper returned from his trip he was promptly served with a writ for the same matter, but as my client's character had been fully vindicated and public interest in the matter had died out, the plaintiff gladly accepted £300 in settlement.

About the time I commenced practice at the Bar, the motor-car was replacing the horse vehicle in most parts of New Zealand. This produced an ever-increasing annual crop of collision cases, a highly lucrative branch of litigation. It was exceedingly difficult to persuade juries that drivers of motor-cars were ever in the right; but as during the earlier years I was usually retained for the plaintiff in these cases, I had no reason to complain. But although it was easy to get verdicts from juries, it was sometimes a difficult matter to get the Judge to uphold them.

I remember in particular a collision case in which my client, who was driving a horse-wagon, was run Into by a motorist at the corner of D— Street and E— Street, one of the very worst corners from a motorist's point of view in the city. I got my verdict, and I think I was just about entitled to it, but only just. The Judge obviously thought I was not, and even the jury must have had some doubts, because the unexpectedly small amount of damages awarded showed clearly it was a compromise verdict. After the trial the defendant moved to set the verdict aside, on the ground that there was no evidence to support it. Here was my page 176real difficulty; but the defendant's Counsel, I have always thought, helped me out of it by overdoing his part. He was a profoundly learned lawyer, the sort of man who in a legal argument never left anything unsaid. In his conscientious devotion to his client's interests, indeed, I often thought he said too much. I certainly thought he did on this occasion.

When I came into Court I was delighted to see the table in front of my learned friend stacked high with books of text-writers and reports. He cited at least twenty cases from the stack; he was on his feet nearly two hours pounding away at his authorities; but when he quoted a case out of Salkeld to support the proposition that the onus of proof was on the plaintiff, I could see that the Judge's patience had almost reached breaking-point. When at last my thrice-learned opponent resumed his seat, I heard the Judge sigh and saw a look of pained resignation on his face, which said as plainly as possible, "Now for the other one."

But when I rose he leaned forward and looked down at the Counsel's table; I think he wanted to see how many authorities I had stacked in front of me, and when he saw that there wasn't a single book on my table, a gleam of relief lit up his face, and he said quite cheerily, "Ah, Mr. Alpers, I see no authorities in front of you; I hope you haven't a masked battery under the table." But I wasn't going to let him off at once—he had no right to anticipate that I was going to bore him, for whatever my demerits as an advocate were, no one could ever charge me with overloading my arguments with authorities. So I said, "I propose, if your page 177Honour pleases, to deal with each and every authority cited by my learned friend and to use it against him." Now, if the man who cites irrelevant cases and, what is worse, recondite authorities for selfevident propositions is a bore, there is a worse bore yet: and that is the opponent who proceeds to "differentiate" the cases so cited. I thought it was time to let him off. "Now this volume of Bevan," I began, as I reached over and lifted it from my opponent's table, "this is the tall building at the corner of D— Street. Here," picking up a calf-bound volume of King's Bench Reports, "is the fence on the opposite corner. This," holding in my hand a small octavo text-book on the Motor Regulations Act, "shows the position of my client's wagon just before the moment of impact." And so I proceeded, using one after another of the books which had been cited by my opponent, to build up on the Counsel's table a sort of "relief map" of the locus in quo, the relative positions of the vehicles, and the houses, street corners, and other elements in the collision. I quoted a few salient passages from the Judge's notes of evidence which supported the Jury's finding, and in something under ten minutes I sat down. I held my verdict, but the indignation of my opponent was good to see. It was long before he fully forgave me for my contemptuous treatment of his ponderously learned argument.

Of the many interesting matters in which I was engaged as Counsel for the Public Trustee, there was one which was a preliminary procedure to the passage of a Private Act of Parliament which was unique—I use the word stricto sensu and advisedly page 178—in the history of legislation. I do not think the Legislature of any country in the world except New Zealand has ever killed a man by Act of Parliament, and solemnly enacted that the said A. B. "shall be deemed to have died on the date of this Act coming into operation."1 The circumstances which led to the passing of this extraordinary but very beneficent Act of Parliament were these:

A. B. was a farmer who owned a large sheepstation in Canterbury, close upon 30,000 acres of fine pastoral land; he was, apart from this, a very wealthy man. He had a wife and six children, all of them adult, the eldest thirty-six years and the youngest twenty-four years of age. In 1896 he had been found lunatic, on inquisition by the Supreme Court of New Zealand, and for twenty-two years had been a patient in a mental hospital. His sheep-station in the meantime was managed by his committee. During the war years it suffered as did all large runs from difficulties in obtaining labour, and under our system of graduated landtax was bearing an extremely heavy burden of taxation. It was felt that the longer retention of so large an estate of land in one holding was against the public interest, retarded closer settlement, and militated against the most beneficial use of the land. Four of the children were sons, brought up to farming pursuits. If the estate could be subdivided among them or sold in smaller blocks, it would be greatly to the advantage of the family.

Three years before A. B. had been found lunatic, at a time when no doubt could be thrown upon his soundness of mind and testamentary capacity, he

1 New Zealand Statutes, 9 Geo, V, No. I Private.

page 179had made his will—a very just and sensible document—in which, after providing for the payment of a large annuity to his widow, his property was divided equally among his children.

The family solicitor conceived the daring and novel expedient of promoting a private Act of Parliament to authorise the Supreme Court to grant administration of his estate on the assumption that he had died on the date of the coming into operation of the Act. The Bill was accordingly drafted, and in pursuance of the Standing Orders was referred to a Judge of the Supreme Court to investigate the circumstances, and to report to the Legislature whether or not the measure was a proper one to pass.

This is where I came into the matter. The Public Trustee, as Statutory Committee of Lunatics in the Dominion, represented A. B. in the proceedings before the Court. I acted as his Counsel and had no difficulty in satisfying myself that the Bill was a perfectly just and sensible measure, provided that an adequate sum were set aside for the maintenance of A. B. during any period that might elapse before nature completed what legislation had begun, the interval between his civil and his natural death. I must also be satisfied, of course, so far as one could be satisfied on such a matter, that the unsoundness of mind from which he suffered was incurable, and that there was, to quote the words of the preamble, "no prospect of the said A. B. ever again recovering any testamentary capacity." As to the first question, it was agreed that the sum of £9,000 would produce an ample income for the maintenance and comfort of the mental patient. page 180On my suggestion it was agreed to provide him with a good motor-car, and with a special attendant who should be a skilled chauffeur, for the patient was quite capable of deriving pleasure from drives and outings in the country where the hospital was situated. As to the prospects of recovery, one alienist had examined the patient and reported that he could not possibly recover. For more abundant caution I required that two other doctors, eminent experts in mental disease, nominated by me and acting under my instructions, should visit the patient and be afforded the fullest opportunity of inquiring into his condition. In their affidavits these gentlemen deposed that A. B. had been suffering for more than twenty years from chronic delusional insanity, that in recent years marked symptoms of senile decay had shown themselves, that though his physical health was robust, his mental condition was rapidly deteriorating. They committed themselves apparently without any hesitation to the positive opinion that in no event could he ever recover or even improve.

In these circumstances I took the responsibility, on behalf of the insane man, of approving the Bill which would have the effect of treating him as dead in contemplation of law, and would accelerate perhaps by many years the distribution of his property.

I had very grave doubts myself whether the Bill would pass through Parliament, but legislators in New Zealand have never been lacking in courage when invited to make experiments, however daring. The Government raised no objection to a Bill which, while it accelerated the distribution of the page 181estate, also speeded up the payment of a very large sum for death duties. The Bill was passed without difficulty and without fuss. It not merely enacted that A. B. should be deemed to have died on the date of the Act coming into operation; it decided the place as well as the time of his death, for although the mental hospital was situated in the Otago Judicial District, it was enacted that he should be deemed to have died, and to have been domiciled at the time of his death, in the Canterbury Judicial District where his property was situated, and that the Act should be accepted as full and complete evidence of all facts necessary to lead to the grant of administration by the Court. Moreover, and this was highly important, for all purposes of administration, all the children of A. B. were deemed to be living at the date of this Act, and to have survived their father.

It is a tribute to the care with which the Bill was drafted that it contains a clause providing for keeping up the payment of premiums on the patient's life-insurance policies, so that these should not lapse in the interval between his civil death and his natural death.

And then, as though to confound the medical experts, "the said A. B," recovered his reason! He remained, I believe, a little eccentric upon minor points, but there was no longer any justification or excuse for detaining him in a mental hospital. He returned after more than twenty years to his old home to be welcomed by his wife and children. He recovered not merely his reason but his shrewd common sense. The provisions of the Act were explained to him; he thought the scheme eminently page 182sensible, and it never seemed to occur to him to wish to disturb it. I don't know how long he lived after he came back to his old home, but I am told that he was often seen at the lodge gates waiting for the daily service-car to pass to get his mail-bag.

I am tempted to add this bonne bouche to my story, though I must frankly admit I cannot vouch for the truth of it: A relative informed me that not only was the old man's good common sense completely restored to him, but with it his sense of humour. One day when the paper brought the news of a suit in which a neighbouring squatter had been divorced for misconduct, he turned to his relative and said with a chuckle, "If I were to misbehave myself I couldn't be divorced, that's certain—I'm dead."