Friday, October 18, 2019

The Negotiable Cow


A few weeks back I posted an item written by A P Herbert.  The item was in the form of a report of a barrister’s address to the jury, the bottom line being that the barrister tells the jury that they don’t really understand what the complicated commercial cases is about, neither do the barristers, so that ultimately they will end up deciding according to which barrister they believe is telling the truth, either himself or the opposing counsel.  He points out that he, at least, is telling them the truth in his summing up so that he should be believed when he advises them to find for his client, which the jury does.

I received a couple of queries as to whether it was a real case and a real report.  It was not.

A P Herbert (1890-1971) was an English humourist, novelist, playwright and law reform activist who served as a Member of Parliament from 1935 to 1950.  He served at Gallipoli and on the Western Front, was injured and did not return to the frontline before the end of the war. Following the war, he joined the permanent staff of Punch in 1924 and wrote a series of books satirising the law, these being:
Misleading Cases in the Common Law
More Misleading Cases
Still More Misleading Cases
Codd's Last Case and
Bardot M.P.
Virtually all the cases were assembled into two omnibus volumes, Uncommon Law in 1935 and More Uncommon Law in 1982. A shorter selection, Wigs at Work, appeared in 1966.

Many of the works depict court cases and judges’ decisions in a realistic manner, being examples of the literary technique known as false document. His satiric approach and exposure of the absurdities that can result in respect of legal matters, legislation and practitioners were sometimes believed to be genuine and, in some matters, caused the law to be reformed.

One of the best-known and most colourful of Herbert’s false document technique is Board of Inland Revenue v Haddock, also known as "The Negotiable Cow" . . .



The Negotiable Cow

‘Was the cow crossed^*

‘No, your worship, it was an open cow.

These and similar passages provoked laughter at Bow Street to-day when the Negotiable Cow case was

Sir Joshua Hoot, KC (appearing for the Public Prosecutor): Sir Basil, these summonses, by leave of the Court, are being heard together, an unusual but convenient arrangement.

The defendant, Mr Albert Haddock, has for many months, in spite of earnest endeavours on both sides, been unable to establish harmonious relations between himself and the Collector of Taxes. The Collector maintains that Mr Haddock should make over a large part of his earnings to the Government. Mr Haddock replies that the proportion demanded is excessive, in view of the inadequate services or consideration which he himself has received from that Government. After an exchange of endearing letters, telephone calls, and even cheques, the sum demanded was reduced to fifty-seven pounds; and about this sum the exchange of opinions continued.

On the 31st of May the Collector was diverted from his respectable labours by the apparition of a noisy crowd outside his windows. The crowd, Sir Basil, had been attracted by Mr Haddock, who was leading a large white cow of malevolent aspect. On the back and sides of the cow were clearly stencilled in red ink the following words:

Pay the Collector of Taxes, who is no gentleman, or Order, the sum of fifty-seven pounds (and may he rot!) £57/10/0 ALBERT HADDOCK

Mr Haddock conducted the cow into the Collector’s office, tendered it to the Collector in payment of income tax and demanded a receipt.

Sir Basil String: Did the cow bear the statutory stamp?

Sir Joshua: Yes, a two-penny stamp was affixed to the dexter horn. The Collector declined to accept the cow, objecting that it would be difficult or even impossible to pay the cow into the bank. Mr Haddock, throughout the interview, maintained the friendliest demeanour; and he now remarked that the Collector could endorse the cow to any third party to whom he owed money, adding that there must be many persons in that position. The Collector then endeavoured to endorse the cheque...

Sir Basil String: Really? Where?

Sir Joshua: On the back of the cheque, Sir Basil, that is to say, on the abdomen of the cow. The cow, however, appeared to resent endorsement and adopted a menacing posture. The Collector, abandoning the attempt, declined finally to take the cheque. Mr Haddock led the cow away and was arrested in Trafalgar Square for causing an obstruction. He has also been summoned by the Board of Inland Revenue for non-payment of income tax.

Mr Haddock, in the witness box, said that he had tendered a cheque in payment of income tax, and if the Commissioners did not like his cheque they could do the other thing. A cheque was only an order to a bank to pay money to the person in possession of the cheque or a person named on the cheque. There was nothing in statute or customary law to say that that order must be written on a piece of paper of specified dimensions. A cheque, it was well known, could be written on a piece of notepaper. He himself had drawn cheques on the backs of menus, on napkins, on handkerchiefs, on the labels of wine bottles; all these cheques had been duly honoured by his bank and passed through the Bankers’ Clearing House. He could see no distinction in law between a cheque written on a napkin and a cheque written on a cow. The essence of each document was a written order to pay money, made in the customary form and in accordance with statutory requirements as to stamps, etc. A cheque was admittedly not legal tender in the sense that it could not lawfully be refused; but it was accepted by custom as a legitimate form of payment. There were funds in his bank sufficient to meet the cow; the Commissioners might not like the cow, but, the cow having been tendered, they were estopped from charging him with failure to pay. (Mr Haddock here cited Spowers v. The Strand Magazine, Lucas v Ftnck, and Wadsworth v. The Metropolitan Water Board.)

As to the action of the police, Mr Haddock said it was a nice thing if in the heart of the commercial capital of the world a man could not convey a negotiable instrument down the street without being arrested. He has instituted proceedings against Constable Boot for false imprisonment.

Cross-examined as to motive, the witness said that he had no cheque forms available and, being anxious to meet his obligations promptly, had made use of the only material to hand. Later he admitted that there might have been present in his mind a desire to make the Collector of Taxes ridiculous. But why not? There was no law against deriding the income tax.

Sir Basil String (after hearing further evidence): This case has at least brought to the notice of the Court a citizen who is unusual both in his clarity of mind and integrity of behaviour. No thinking man can regard those parts of the Finance Acts which govern the income tax with anything but contempt. There may be something to be said – not much, but something – for taking from those who have inherited wealth a certain proportion of that wealth for the service of the State and the benefit of the poor and needy; and those who by their own ability, brains, industry, and exertion have earned money may reasonably be invited to surrender a small portion of it towards the maintenance of those public services by which they benefit, to wit, the Police, the Navy, the Army, the public sewers, and so forth.

But to compel such individuals to bestow a large part of their earnings upon other individuals, who prosper by way of pensions, unemployment grants, or education allowances, is manifestly barbarous and indefensible. Yet this is the law. The original and only official basis of taxation was that individual citizens, in return for their money, received collectively some services from the State, the defense of their property and persons, the care of their health or the education of their children. All that has now gone. Citizen A, who has earned money, is commanded simply to give it to Citizens B, C, and D, who have not, and by force of habit this has come to be regarded as a normal and proper proceeding, whatever the comparative industry or merits of Citizens A, B, C, and D. To be alive has become a virtue, and the mere capacity to inflate the lungs entitles Citizen B to a substantial share in the laborious earnings of Citizen A.

The defendant, Mr Haddock, repels and resents this doctrine, but, since it has received the sanction of Parliament, he dutifully complies with it. Hampered by practical difficulties, he took the first steps he could to discharge his legal obligations to the State. Paper was not available, so he employed, instead, a favourite cow. Now, there can be nothing obscene, offensive, or derogatory in the presentation of a cow to one man by another. Indeed, in certain parts of our Empire the cow is venerated as a sacred animal.

Payment in kind is the oldest form of payment, and payment in kind more often than not meant payment in cattle. Indeed, during the Saxon period, Mr Haddock tells us, cattle were described as viva pecunia, or ‘living money’, from their being received as payment on most occasions, at certain regulated prices. So that, whether the cheque was valid or not, it was impossible to doubt the validity of the cow; and whatever the Collector’s distrust of the former it was at least his duty to accept the latter and credit Mr Haddock’s account with its value. But, as Mr Haddock stated in his able argument, an order to pay is an order to pay, whether it is made on the back of an envelope or on the back of a cow. The evidence of the bank is that Mr Haddock’s account was in funds. From every point of view, therefore, the Collector of Taxes did wrong, by custom if not by law, in refusing to take the proffered animal, and the summons issued at his instance will be discharged.

As for the second charge, I hold again that Constable Boot did wrong. It cannot be unlawful to conduct a cow through the London streets. The horse, at the present time a much less useful animal, constantly appears in those streets without protest, and the motor-car, more unnatural and unattractive still, is more numerous than either animal.  Much less can the cow be regarded as an improper or unlawful companion when it is invested (as I have shown) with all the dignity of a bill of exchange.

If people choose to congregate in one place upon the apparition of Mr Haddock with a promissory cow, than Constable Boot should arrest the people, not Mr Haddock.

Possibly, if Mr Haddock had paraded Cockspur Street with a paper cheque for one million pounds made payable to bearer, the crowd would have been as great, but that is not to say that Mr Haddock would have broken the law. In my judgment Mr Haddock has behaved throughout in the manner of a perfect knight, citizen, and taxpayer. The charge brought by the Crown is dismissed; and I hope with all my heart that in his action against Constable Boot Mr Haddock will be successful. What is the next case, please?

From wikiepedia:

Although the case is fictitious, it has been referred to in judicial decisions.

In Messing v Bank of America (2002) at paragraph 1 the Maryland Court of Appeals observed: "The circumstances which gave rise to the case before us are, in terms of its genesis, reminiscent of those described in the case of Board of Inland Revenue v. Haddock."

In the English case of Victor Chandeler International Ltd v The Commissioners of Custom and Excise and Teletext Limited [1999] EWHC 214 (Ch) Mr Justice Lightman stated that a document, in the context of the Betting and Gaming Duties Act 1981, "must be inanimate: neither a person nor A. P. Herbert's 'negotiable cow' can constitute a document."

Herbert reported that the now defunct Memphis Press-Scimitar (formerly published by the E. W. Scripps Company) published an article on the case in 1967, assuming it to have been factual.

From me:

Quite some years ago I made an impromptu visit to my bankl to cash a cheque. Not having my cheque book with me and knowing that a cheque could be written on pretty much anything paper, I wrote out a cheque made out to "Cash" on the blank back of a bank, savings account withdrawal form.  The teller refused to cash it, despite my protestaions that it was a valid cheque.  Eventually she called her superior over and we went through it all again.  This happened another few times with increasingly higher levels of management until finally the top manager said to me"Look, you are right but that cheque will cause problems in our records and procedures.  How about we give you a counter cheque at our cost and you cash that?"  He was so reasonable and polite that I didnt have the heart to keep being a dick so I accepted his offer.

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