SOLOMON HAD IT EASIER : NUMBER FOUR
Judge Embert Wimple was in such high spirits that on leaving his house to enter the waiting official car, he performed a little hop, step and jump – no mean feat for a man of eighty-three. The buoyant mood was occasioned by a combination of factors. The sun was shining, the first test match was in progress and a visiting batsman had entertained every cricket aficionado in at least two lands. Like so many true lovers of the game, Embert Wimple derived his pleasure from the aesthetics involved and was largely indifferent to the outcome of a match. Finally, the judge was beginning to bask in the reflected glory of Esmeralda Wimple’s growing success with oils and canvas.
The upcoming case offered a little extra spice in that it was another matter about which Embert Wimple knew absolutely nothing until he took his place in court. Still, that was all to the good, was it not? A new problem and a fresh mind were desirable ingredients in the quest for dispensation of justice. Even after his many years on the bench, the judge still searched ceaselessly for some trace of a path – even the odd footprint – in the seemingly trackless wasteland of human misconduct. Surely there was a pattern? There must be one in the cosmos itself, and what was there in the whole must be detectable in the parts. Or was it? At times, Embert Wimple found himself in the position of the subaltern who receives orders which seem senseless because he cannot see the whole picture.
On this occasion, the prosecution and defence were to be conducted by two barristers from the local pool, both accustomed to appearing before Judge Wimple. Simon Fortescue represented the prosecution, Liam McGillivray the defence. Not that this made any impression on the judge. A panel was a panel and the two counsels were well acquainted with his honour’s peccadilloes. Judge Wimple’s view was akin to that of a well-balanced umpire, who may make a number of wrong calls without greatly affecting the result of an encounter. It was all swings and roundabouts. The litigants were sometimes startled, the advocates never.
Having taken in what he considered necessary, Judge Wimple addressed Fortescue. “Very well, Mr Wentworth,” he said. “Please begin.”
Fortescue, who deferred only marginally to the judge in terms of anno domini, offered the slightest of bows. “May it please Your Honour, the circumstances here are a little unusual, but the underlying principle is not. My client, Mr Philips, seeks satisfaction from the defendant, Mr Stone, in that he – Mr Stone – took from my client a dollar, in Canadian currency, which he refuses to return.”
Fortescue was set to continue, but was interrupted. “A dollar, you say,” said Judge Wimple, producing a mischievous smile. “Dear me, we seem to be in deep waters here. Forgive my intervention at this early stage, but I feel compelled to ask what the defence has to say about this. He turned his attention to McGillivray. Are we really discussing a matter concerning one Canadian dollar, Mr Easterbrook?”
Counsel for the defence was of the piercing eyes and hands-behind-the-back school. “May it please Your Honour, there is no fundamental dispute with respect to what my learned colleague says, but there is more to the matter. The point at issue is that the amount in question – and more – was owed by Mr Philips to my client, Mr Stone. In fact –”
McGillivray was no more successful than his opponent in completing his remarks. The judge held up a hand for silence, then turned again to Fortescue. “I think we are proceeding too quickly,” he said. “Perhaps you would recount the details, Mr Faraday.”
“Certainly, Your Honour. Mr Philips and Mr Stone were once close friends and had a mutual acquaintance in Canada, a gentleman who emigrated to that country some years before the incident at issue here, and who visited both parties some months ago, at which time Mr Philips was the principal host. When the visitor was about to return home – this was on the twenty-sixth of January – he found that he had no Canadian currency. He was anxious to buy some small items on the aircraft and was not sure whether he would be able to pay in sterling. Not surprisingly, Mr Philips also had no Canadian money. The matter was resolved when Mr Stone handed over to the visitor a banknote in his – the guest’s – currency, the value being ten dollars. The item had earlier been given to Mr Stone as a memento of the visit. Mr Philips admits that he agreed to treat the matter as a loan to him and that he promised to reimburse Mr Stone.”
“I see,” said the judge. “So, Mr Stone was out of pocket to the extent of ten dollars, which was to be paid back to him by Mr Philips, after the visit of the Canadian gentleman?”
“That is correct, Your Honour. Following the visitor’s departure, Mr Philips and Mr Stone continued to visit one another, as they had done for some years. The question of the ten dollars was raised several times, albeit on a jocular level, but was not settled. Finally, Mr Stone called on Mr Philips, ostensibly on another matter, but in reality to press his claim. During the general discussion he was shown a Canadian one-dollar coin, which he examined, but failed to return to Mr Philips. Since then, despite numerous allusions to the matter by my client, Mr Stone has refused to hand back the item in question, hence the current position.”
Judge Wimple peered closely at all parties present. “I suspect that there is more to this than meets the eye,” he said. He addressed McGillivray. “What do you say to this, Mr O’Connell?”
McGillivray bowed. “Strictly speaking, Your Honour, what my learned colleague says is correct. However, Mr Stone left the home of Mr Philips, absentmindedly holding the item in his hand. He thought little more of the matter, except to reflect that, even with the coin in his possession he was, and still is, owed the sum of nine Canadian dollars, or the sterling equivalent. Although unwilling to take up the court’s time with a counter-charge, he is still seeking restitution, which he is willing to accept in either currency. Further, he contends that Mr Philips never specifically requested return of the coin concerned.”
The judge turned his attention to the prosecuting counsel. “A nice point, Mr Fortescue,” he said. “Do you agree?”
For a moment, the learned gentleman was nonplussed at being addressed by his correct name. However, barristers do not reach their positions without the ability to act extemporaneously. Recovering, he conducted a sotto voce consultation with his client, following which he turned again, clearly embarrassed, to the bench. “Your Honour, it seems that, during their conversation, Mr Philips and Mr Stone imbibed liberally. It was only afterwards that Mr Philips noticed that the item was missing. He subsequently mentioned the matter to the defendant, but on grounds of delicacy did not suggest that Mr Stone might have the coin. That would have been tantamount to an allegation, or at least a suggestion, of theft. Mr Philips merely spoke of his loss. Naturally, he thought that Mr Stone would, if he had the item, give it back. So, it is true to say that Mr Philips did not actually ask for it to be returned. He merely made a reasonable assumption. Our contention is that, by his silence in the matter, Mr Stone was guilty of a sin of omission, which we feel Your Honour will agree is as reprehensible as one of commission.”
The judge, who half a century earlier had been a leading member of his local amateur dramatic society, felt that a touch of histrionics was permissible. He glared at Fortescue. “You speak of loss, Mr Grimmett,” he said sonorously. “Great heavens, we are considering well under a pound sterling. Kindly explain yourself?”
Counsel for the prosecution played his trump card: “Your Honour, the item in question is a Canadian maple leaf dollar.”
“And this is important, is it?”
“Yes, Your Honour. The Canadian mint is renowned for producing gold with a purity of nine-hundred and ninety-nine point nine fine. Most mints do not reach that level. The dollar in question was a coin worth many times its value as ordinary currency.”
“Ah, at last,” said the judge. “We have got to the point. Presumably your case rests upon this?”
Fortescue nodded his affirmation. “Yes, Your Honour.”
“What a pity you didn’t say so earlier.” Judge Wimple turned his gaze to defending counsel. “Now, Mr Armitage, do you agree with all of this?”
McGillivray emulated his opponent’s nod. “Broadly, Your Honour. However, my client has neither knowledge of coins, nor interest in them, but wishes only to clear his name and receive satisfaction. He still contends that he is owed the balance of nine Canadian dollars, or a matching amount in sterling.”
“Very well,” said the judge. “Are both parties willing to accept my verdict?” They were, so his honour shuffled his totally blank papers, thinking that he would have been much better occupied watching what remained of the test match. He looked over his gold-rimmed half-glasses. “Now,” he said, “in spite of the apparent complications, this is a straightforward matter. It is admitted that the plaintiff did not at any point demand return of the coin in question. Furthermore, we are dealing with the fact that the defendant does not appear to be a numismatist, so I am inclined to accept that he has no interest in the intrinsic value of the item. As far as he is concerned, he received one dollar. The same logic surely applies in the wider context. Indeed, one is almost compelled to extend the reasoning from the particular to the general. Not everyone is prepared to accept rarity as being commensurate with value. I mean, for example, osprey droppings are probably rare, but I doubt that many people would consider them valuable.”
With the wind in his sails and his audience agog, the judge was thoroughly enjoying himself. “Now,” he continued, “the fact that we are not addressing a purely domestic matter is a side-issue. If one were to patronise, say, a British supermarket and were to proffer a sovereign in payment, the face value would be, as it always has been, one pound, irrespective of any metallic content. One would perhaps get several tins of baked beans in exchange. It would be quite improper – and most inconvenient to all concerned – to demand more. One could hardly expect a whole display of the same produce because of the unusual nature of the transaction. Think of the administrative chaos. There would be a cashier, a supervisor, and possibly an under-manager and a manager involved. It would be tantamount to turning a major retail outlet into a bazaar. I seldom visit supermarkets, but have great sympathy with the hard-working check-out operators and would not wish to impose upon them the added burden of a requirement to know the current values of Krugerrands, Doubloons and the like.
“There are understandable complications in a case such as this. I am sure I need not remind either prosecuting or defending counsel of a parallel which occurred not long ago, when a British businessman decided to pay his employees in gold sovereigns, his reasoning being that as the nominal value of the coins was one pound each, his staff would avoid income tax liability. I recall that the gentleman concerned was not successful in pursuing his argument. That matter has a certain resonance in this case.”
An outbreak of audience fidgeting caused the judge to realise that he was in danger of labouring his point. He continued: “The principle of precedents is undoubtedly useful, but it is not sacrosanct. In the affair I have mentioned, there was premeditation and a successful outcome for the businessman and his employees would have amounted to the evasion of income tax rather than its avoidance. The distinction is obvious, in that the former is unlawful, while the latter is not. In this case, my conclusion is that, regardless of the supposed value of the coin in question, which is variable anyway, a pound is a pound and a dollar is a dollar. Were I asked to arbitrate upon a counter-charge, I would be obliged to find in favour of Mr Stone, who is still owed nine dollars, or the corresponding amount of sterling. I cannot find it in me to blame him for retaining the coin, since his possession of it seems to represent his only leverage in the matter. It seems to me that Mr Philips would have been best advised to settle his modest debt before this complication arose. I therefore find against the plaintiff. Proceedings concluded.”
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