On appeal from a decision of the Court of Appeal of New Zealand reversing a decision of Mr. Justice Chorlton.

The following Lords of Appeal were present: Lords Bannister, McNaught, Fabian, Styche and Wylie.

The Petitioners were represented by Marcus Riske appealing in forma pauperis.

The Respondents were represented by Professor Cornish, A. Eaton Hurley, P.M., H. Rosen and Margaret Agatha Spence-Sales.

The following report of the case is taken from "The Daily Mail" of September 30st, 1930:—

"The fourteenth day of the trial found public interest still at fever heat. It had been estimated that Mr. Riske had used the phrases 'Plank's Pestering Notices' and "That imbecile Mountjoy' some 14,000 times to date. Immediately after the resumption of proceedings an unpleasant episode occurred when three once deeply respected but now thoroughly depraved characters, Miss Cathie Forde and Messrs. W. P. Rollings and W. J. Mountjoy, Jun., were ejected from the body of the Court. After the sensation had abated Mr. Riske continued his remarks from overnight:—

"Riske.—My Lords, I have already outlined the principles of the Constitution which the Executive have violated. However, there is no harm in my just touching upon it again.

"Powles (in back of Court).—Wrap the Red Flag round me, boys!

"Riske.—I appeal to the Court for protection from these interruptions. My Lords, it has been laid down that nominations for election of officers should close on a certain day prior to the poll. This scoundrel Mountjoy—

"Anne Veitch.—"Now, don't you call that simply perfect man names. Who are you, anyway?

"Riske.—This woman, my Lords, is interested in maintaining a plutocratic government. If you knew all I knew about her father—

"Wylie, L. J.—Proceed, Mr. Riske. Let not the sins of the fathers be visited on the children.

"Riske.—My Lords, as I said before, this scoundrel Mountjoy in his usual brainless fashion neglected to send in his nomination for the Committee until constitutionally it was too late. Then, suddenly realising that there was just a faint possibility that HE would not after all be elected Vice-President, sent in his second nomination about a week later. He failed to gain the first position and was elected to the Committee. A General Meeting was called, at which the refuse, the scourings, I may say, of the College attended.

"W. Mason.—Oh, why harp on the Christian Union?

"Riske.—At this meeting Mr. Rollings, by means of his usual sharp practices, and no doubt receiving some small consideration for his trouble, addressed the meeting, and by playing on the charity of the weak-minded, succeeded in passing some amendment to the effect that this wretched fellow's Committee's nomination should be taken as accepted with his nomination for Vice-President. This action your Lordships will see was contrary to the spirit of the Constitution.

"McNaught, L. J.—But who is this Mountjoy?

"Zenoerate Henderson (from body of Court).—My hero! My Irving!! My Oscar Ashe!!! (Collapses and is removed by the Free Ambulance.)

"Riske.—Shortly afterwards I had the honour of being created Business Manager and Fighting Editor of "Smad.' For some time, my Lords, I had been acquainted page 6 with a certain Katherine C. Birnie (here witness showed obvious signs of distress). On my recommendation, and on that of the sub-editors, Cardinal Munchausen—I refer to our Editor, Raymond James Patrick Reardon—elected her to our Staff as an additional Sub-Editor. Although I lived in a constant fear of being converted by our Cardinal, who made every effort in that direction, we were all very happy. Then, my Lords, the blow fell. We received a document—

"Fabian, L. J.—Where is this document?

"Riske.—It was raffled by the Tennis Club. It was signed by C. S. Plank, Hon. Sec., and was to the effect that we had no power to add to our Committee, as such an action on our part would be Unconstitutional. Miss Birnie was from even date to cease to be on our Staff. I need add no more. The Executive has shown in every way that it is working not primarily for the students, but for their own shady ends. I now propose to call students of no mean repute in affirmation of my claims that the Executive, in addition to many other criminal tendencies, has been guilty of Negligence, Inebriation, Graft and Champety. With the permission of the Court I propose to call David Benjamin.

"Benjamin (Law Student and Semi-Somnolent, having taken the oath and a couple of loose sheets from the Bible as a souvenir).—One Thursday night when the Stud. Ass. Committee was ostensibly burning our electricity and our gas in the service of the students, I chanced to fall asleep outside the Exec. room. Awakening to the sound of The Stein Song' and 'Tie Me To Your Apron Strings Again,' I heard ribald laughter, the sound of rattling teacups and mysterious muttered formulae issuing from the windows. Some of the phrases were: Til raise you fifteen bob," 'Full House,' and 'Three Queens.' Suddenly someone asked for the minutes and I heard a terrific reverberating crash and a frightful oath.

"McNaught, L. J.—What steps did you take?

"Benjamin.—Dixon Street—four at a time.

"McNaught, L. J.—Funny place to sleep this time of the year.

"Benjamin.—I was frightened to go home on account of bag-snatchers.

Witness stood down and Mr. Riske called on Exhibit A—a cavalcade consisting of Helen Dunn in the Stutz Senior towing the Morris Minor, with Charles Plank bringing up the rear in a P. and T. van, drew up outside the Court bulging with Stud. Ass. Minutes. Shortly after Mr. Riske began his task of reading out selections of these minutes the Court was cleared. Having finished, Mr. Riske again addressed the Court.

"Riske.—I have been able to show, my Lords, that there is no mention in the minutes of the grand old game of poker, nor of these negroid songs. This, I contend, proves that the Executive has not kept a record of its meetings, which is contrary to the Constitution.

"Bannister, L. J.—My Lords, for two weeks I have endured the babbling idiocy of both counsel and witnesses. Is it possible that it is again to be left to me to define the issue between the parties?

"Cornish, Prof. (who has just hurried in late, with two small children).—The course of Justice must, Lord Bannister, at times, just like a Willys-Knight, be delayed. May I again remind you that the legal profession must live. Personally, my only regret is that there is no further tribunal of English justice to which the case may be referred.

"Bannister, L. J.—The Executive will have to raffle the marble statue of MacDuff to pay Your costs.

"Here a disturbance was created at the rear of the Court by Mr. W. P. Rollipgs, who was making a determined effort to force an entry. On the application of a fire hose he desisted and order being restored, Aileen M. Davidson, describing herself as Auntie Agatha of 2YA, was next called. She tripped up the steps, dimpled at the Lords of Appeal, and waved her handkerchief to the Fox Movietone cameramen in the gallery, winning the hearts of the judges immediately.

"Aileen M. Davidson.—Being unused to talking—especially to so large an audience, I must confess that I feel frightfully high strung and emotional. However, as I told His Excellency, Lord Bledisloe, only the other night, I am still comparatively gladsome and shall be able to live down the horror of it all. Therefore I thought page 7 I'd pop in to help Mr. Riske. It's dreadfully hard to stand here and solemnly say that I don't think dear old Joey should be on the Executive; but really I don't think he is safe over there in the Gym. with Dorothy Roberts.

"Professor Cornish announced he had detected a split infinitive and suggested that witness's statements were therefore invalid. Witness therefore called medical evidence to prove that she had suffered from a split tongue from infancy. Lord McNaught suggested that that might be the reason why witness always had such a lot to say, and Lord Styche playfully suggested that Lord McNaught's mouth should be examined.

"Aileen M. Davidson.—The whole trouble with the Exec, is that they have not sufficient to occupy their minds. They have to dabble in everything and make nuisances of themselves. All they seem to be capable of doing, it appears, is to send out warnings and injunctions and what-not. In fact, they send out so many notices that Mr. Plank finds it necessary to employ a part-time typiste at our expense—

Terrific Uproar.

"Cries of 'Shame' and 'Abandoned wretch' followed this statement. The Christian Union blushed hotly, the women members dropping their veils. Mr. Plank made a plucky endeavour to climb the wall and Helen Dunn hurled a wet discloth at Aileen M. Davidson. The missile fell short of the mark and struck Professor Kirk, who immediately burst into tears and was gently led outside by Reginald Larkin. Violently resisting, Violet Thompson was arrested for Contempt of Court, and succeeded in laming the constable on the way out. Cathie Forde, Joey Mountjoy and Penrose Rollings took advantage of the excitement to drop back into the Court from a side window. Before proceedings were resumed Professor Cornish was heard confiding to his fellow counsel that he had once had the honour of appearing with the late Chief Justice for New Zealand when he was practising at the Bar in a case on this very point. Witness was then asked to continue, but refused, saying that she had lost all interest and that if counsel were to be permitted to interrupt on Harold Miller lines she simply wouldn't give evidence at all—and went home.

"The next witnesses were Julia Dunn, Eileen Plank and T. P. Rollings, who substantiated the remarks of Mr. Benjamin. They admitted that Helen Dunn, Charlie Plank and Penrose Rollings were rarely seen by their families from one breakfast to another. Mr. Plank, furthermore, had plastered the home with warnings and official notices and had developed the habit of taking down distorted family conversations and pasting them up outside the G.P.O. Julia Dunn admitted that her sister had put double padlocks on all the doors and had a mania for taking tinned foodstuffs and stray pieces of kitchen ware from the home. Nothing was safe from her clutching fingers.

"Riske then resumed: I wish to remind you, my Lords, of the alarming fact that the Executive's first move on being elected to office was based on the Instinct of Self-Preservation. They immediately had a new lock put on the door in order that holders of honorary keys would not be able to gain admittance. Dorothy Roberts also heavily curtained the windows. I now call upon J. S. Barwell to give evidence on the Instinct of Self-Preservation.

"J. S. Barwell, Floor C, Psychologist, then entered the box, but laughed so helplessly that he was unable to give evidence and was asked to stand down.

"Exhibit B was then called, and there was an interval while Mr. Brook wheeled in a barrow piled high with C. S. Plank's notices. He was greeted by a haka and cries of 'Strangle him.' When asked to retire to the body of the Court, Mr. Brook delighted the assembly by turning to the Bench and complaining as follows:—'You're like Profs. Hunter and Florance, you are. Of course, you must have the whole of the top floor all to yourselves.' Mr. Riske read some of the notices and it was estimated that each sheet, including drawing pins and typist's fees, had cost the Association 14s. The reading of the notices was attended by scenes of the wildest disorder. It was found that the closing of the Common Rooms had cost, in notices alone, the sum of five pounds. The provision that Mr. Plank's notices should be defaced within the bounds of decency ran into a further two pounds ten shillings.

"Mr. Riske then called for Exhibit C, and the Staff of 'Spike,' led by Eric Hall McCormick, followed by Julia Maud Dunn, lima Maude Levy, Colin Lennie Bailey, page 8 John Carad, Dudley Lawrence Pilcher and Lewis Williams, and filed into the Court and stoood shamefully near the judge's box.

"Riske.—There they stand, my Lords, a mute but eloquent indictment of the pathetic inanity of the Executive. These people, my Lords, these people have been placed in charge of the College organ. Read 'Spike'—that is all I ask. Mr. Riske dismissed the Exhibit, which scuttled away into diverse corners.

"Gradually, step by step, the net was being drawn around the Executive. Maxwell Turner, Ex. Sec. of the Stud. Ass., was the next witness.

"Turner.—I don't think much of this Executive, either. As a matter of fact, I don't think much of anyone up here, with perhaps one exception. If that imbecile, Mountjoy, had acted in a decent, straightforward way, I would be on the Committee now helping Mr. Plank. When I was Secretary I certainly did not send out so many notices—but then I didn't have a typiste. If I had thought of employing someone to do the work I can safely state there would not have been an open common room or even class room in the College, and, furthermore, the building from tower to basement would have been plastered three deep with warning notices. In my opinion, the direct cause of all the trouble is Mr. Plank's typiste.

"Here the employees of the N.Z. Express Co. wheeled in Mr. Plank's desk on a gun carriage. Amidst unexampled scenes of chaos and violent commotion an attempt was made to burst open the desk. Mr. Mountjoy, in attempting to take charge of the proceedings, came under the eye of Constable Eric Mahoney and was again ejected. Among the articles discovered in the desk were a receipt from the City Council for electricity for the amount of £103 for the month of August, Routledge's Guide to Letter Writing, several dishcloths and Dr. Maskell's gown. The air was full of flying missiles, including the notices and minutes. Mr. Miller entered suddenly with 14 reference books and was hurled bodily through a closed window. Pandemonium lasted for twenty minutes, and in a temporary lull Mr. Reardon was observed standing among the debris appealing to Heaven, but the tableau was almost immediately eclipsed from view by a resumption of hostilities. Professor Cornish, the parental instinct predominating, had dropped his children into the desk and was sitting on the lid. The room became a veritable inferno.

"Forty minutes later, when the Court was again bordering normality, Mr. Riske, who had taken refuge in the witness-box, reappeared and took the opportunity of pointing out that the witnesses had succeeded in showing the unworthiness of the Executive. He contended that the weight of evidence against the accused would appeal even to the meanest intelligence. He was prepared to go further. He would be prepared to wager that Crow Mackenzie himself would be capable of obtaining a rough idea of the position. He (Riske) now intended to show that Katherine Birnie was a wronged woman. The whole course of her life had been blighted. He pointed a trembling finger to where Miss Birnie was entering at the back of the Court and was marshalling Form 4A W.E.G.C. to their places. Two pieces of chalk sticking out of her pocket and a smear of ink on her face told a poignant story.

"Miss Birnie was then called. Although she could hardly stumble up the steps and tears were pattering monotonously down her, cheek upon the floor while she was speaking, she still had sufficent grasp over herself to smile from time to time upon her audience.

"Birnie.—Words cannot express the feelings I have towards the present Executive. Hounded from pillar to post, I, a poor defenceless woman, chanced one day to meet a certain Marcus Riske, who, in his usual fine, generous way, had me elected to the Staff of 'Smad.' There, for all too short a time, I enjoyed the luxury of the pearls of literary wisdom on the highest planes of thought. For a while I felt happy. Then suddenly my heart sank.

"McNaught, L. J.—Like the Tahiti—but she broke her propellor shaft before linking.

"Bannister, L. J.—How do you know she did?

"McNaught, L. J.—I don't. I'm not a deep sea diver.

"Bannister, L. J.—I don't know, either.

"Professor Cornish (absent-mindedly).—Nobody know? Well, tell the class, Miss Dunn.

page 9

"Bannister, L .J.—I'm getting desperate. No one here seems to know what is going on around him. My Lords, I am making one last effort to save the case before it straggles too far from sanity and reason. Will witness kindly ignore my noble brothers and counsel and proceed?

"Birnie.—With Mr. Plank's decree my ambitions as a comic strip writer and yellow journalist drooped and withered away. My hopes were blighted. My life was wrecked.

"McNaught, L. J.—Like the Tahiti again.

"Cornish.—If this case is to be run on lines similar to a shipping company inquiry, I suggest that a propellor shaft be obtained without delay.

"McNaught, L. J.—I was just wondering how deep the Tahiti would be now.

"Cornish.—This hardly concerns our present subject. Join the Debating Society. I think the Rule of Estoppel must apply here.

"Mr. Carad, Sports Editor of 'Spike,' was next called. Witness vaulted lightly into the box and rested one foot on the judge's bench. Mr. Mountjoy, who with monotonous regularity had been coming in the window, only to leave immediately in the arms of the burly boxing constable, passed briefly through once again, distributing N.U.S. Handbooks as he went.

"Carad.—The election of the present Committee, apart from the wrecking of Katie Birnie, has been directly responsible for another regrettable occurrence. The Senior A team, after winning the Wellington Championship for the past two years, has this year been handed the wooden spoon and put down into the B Grade. It reminds me of the Wellington Club in 1920. Poneke and Petone had been racing neck and neck for the Championship. Men like Brown and Jones were playing for Hutt in those days. (Witness continued his Rugby reminiscences for some time.)

"Lord Bannister, finally goaded to desperation, leapt to his feet and announced that his mind was going. Lord Styche objected to Lord Bannister's statement, saying that it was well known that his noble brother's mind was too weak to travel.

"Mr. Barwell made a second effort to speak, appeared to rally, and then subsided into sepulchral chuckles, followed by wild hysteria. He was successfully gagged with a dishcloth and calmed down later on.

"Mr. Riske with a torrent of oratory closed the case.

"Professor Cornish, for the defence, borrowed a pencil from an onlooker and spoke as follows:—'My Lords, this case must fail, because the witnesses have not proved a prima facie case within the rule of Scott v. Watkins. Moreover, the characters of the witnesses is questionable, to say the least. This proves contributory negligence on the part of the petitioners.

"Rosen, L. J.—But what has contributory negligence got to do with it, Mr, Cornish?

"Cornish.—I submit, your Lordship, that it means a verdict of Not Guilty.

"Rosen, L. J.—I shall direct the jury otherwise.

"Cornish.—I shall appeal.

"Bannister, L. J.—Where to?

"Reardon.—Heaven's the only place left.

"Wylie, L. J.—Enough. The time of this Court has been wasted to an excessive degree. My noble brothers and myself are agreed that we have no jurisdiction and the case must be referred to the Professorial Board.

"Bannister, L. J.—I desire to enter a dissentient judgment.

"The Professorial Board arose and bowed their acknowledgments, to the plaudits of the mob. Seizing his lyre, Mr. Cochran broke into iambics.

"Cornish (appealingly).—My Lords, my Lords, what about costs?

"Wylie, L. J.—On the highest scale here and below.

"Cheers from the wigs and oaths from the clients.

"Cornish.—Hurrah! I invite you all to tea at the Majestic.

The Court Hose.

"Next week the Court will resume to hear legal argument in the case of Hunter v. Christianity."

—J.D.,I.L.,R.R.