by Osiris Wicker Basket, Ll.D.


in Panama's claim to have been improperly served. It is immaterial whether the intoxicated condition of the night janitor McGee was induced or abetted by counsel for Plaintiff. If one thing is abundantly clear from the reams of testimony given by Panama's office staff, it is that McGee, drunk or sober, had an implicit duty to bring the summons to the Day Janitor, who in the course of normal office routine would have brought it to the Chief Janitor, who would have brought it to the Vice-Superintendent for Maintenance, who would have brought it to the Superintendent-in-Chief, who would have brought it to the Division Manager, who would have brought it to the Administrative Director, who would have brought it to the Senior Officer, who would have brought it to the Executive Supervisor, who would have brought it to the Vice-President for Bothersome Developments, who would have brought it to the President's secretary, who would have brought it to the President, who would have called McGee to drop it off at the Legal Department on his way to the boiler room.

As for Gus's counterclaim, we find ample precedent for Panama's chosen method of service. The controlling case is Matter of Flap v. Grosbeak, 3 F.R.S. 199, which specifically sanctioned service of process by carrier pigeon, provided the pigeon had been duly deputized. While it is true that there is no evidence that the brick used in the present case was properly deputized, in such situations we are strongly inclined to let the opposing claims cancel each other out in accordance with that ancient principle of equity, digiti separatim edendi, one hand washes the other. We do not reach the question of what happens when a one-handed man tries to wash his hands.

There remains to be decided only the simple question of whether Panama received proper payment for its piano. Mere presentation of a check for deposit does not constitute receipt of payment (Sumpson v. Eldorado Petroleum Corp., 112 Va.R. 37; Wannamaker v. Eldorado Gold & Diamond Mines, Inc., 97 Nebr.M.O. 808; Riley v. Eldorado Plutonium Refining Co., 69 F.R.D.2d 69). But the drawer of a check may not be held responsible for errors or omissions of the payee's bank (Estate of Downey v. Estate of Squawker, 900 N.W.3d 15). [1] But a transfer of funds is not complete until the receiving bank has taken possession of the money (Farmers' and Carpenters' Shavings and Loam Assn. v. Carnival Trust Co., 73 F.Err. 592).

If we assume that First National Schnitzel Bank of Ohio defaulted in March of last year, we are still beset with difficulties. The Schnitzel Bank was owned until 1962 by Coolidge Z. Crapley, who according to the testimony of his widow, Ottilie Crapley Bottomsworth, was unalterably opposed to federal regulation of banking. [2] Consequently the Schnitzel Bank's deposits were never insured by the Federal Deposit Insurance Corporation. However, when Schnitzel was acquired by United Money Corp. in 1962, the first act of the new owners was to insure Schnitzel's deposits with the Krakatoa Insurance Co. of Quaker City, O. Unfortunately at the time of the alleged default all of Krakatoa's cash was on deposit with the Schnitzel Bank. As if this were not enough, plaintiff now claims that the Schnitzel Bank never defaulted at all, but that its president, Dallas K. Dome, is merely enjoying a well-earned ten-year vacation in Guatemala, having taken the bank's assets along so he could keep a watchful eye upon them. As evidence plaintiff points to Dome's conspicuous failure to file a Certificate of Embezzlement as required by the Federal Uniform Shady Banking Practices Act of 1908.

We have combed the law books in vain looking for a precedent that would cover all the facts in this case. The most similar case we have unearthed is King v. Kong, 2 F.Detr. 18 (1 Stench 49), in which a bale of uncut plug tobacco blew up aboard a drifting steamboat under Chinese registry on a channel of the Mississippi River over which both Kentucky and Missouri claimed sovereignty. [3] We do not intend here to apply Kong, which is distinguished from the present case in numerous ways; e.g., the pilot in Kong was only half Hungarian. Nevertheless it is most instructive that the court in Kong reached its verdict by drawing an analogy with a wholly unrelated branch of law, namely divorce law. Faced, as that court was, with an unprecedented situation, we see here a golden opportunity to carve a niche for ourselves in the quarries of legal tradition; to stake out new territory in the Everglades of contemporary jurisprudence; in short, to boldly go where no man has gone before. (2 Blackstone's Commentaries 1709)

The parallel we desire is to be found in that part of the British common law dealing with ferocious animals and plants. In Linsey v. Woolsey, 70 K.G.B. 299 (1642), Lord Justice Dithering enunciated the doctrine that if a man keep a cactus, and the said cactus run against that man's neighbour and stick him, that is to say, viz., stick the first man's neighbour, he shall pay, that is to say, viz., the owner of the cactus, shall pay to him, that is to say, viz., pay to him who was stuck by the cactus, damages in the amount of five shillings. (p. 300) All the elements of the case at hand are present: the piano company is the cactus-grower, the piano is the cactus, and Gus is the man who was stuck. We therefore award the plaintiff damages in the amount of five shillings. Inasmuch as both parties would be unduly burdened by the expenses of this protracted litigation, each is to pay the costs of the other.

Judgment for plaintiff in the amount of five shillings, with Gus's costs to Panama and vice versa.

So ordered. Fiat, fiat. Amen.


  1. The application of Linsey to commercial transactions has far-reaching ramifications. Describe the potential effect of the Linsey doctrine on (a) trash-burning ordinances; (b) liquor laws; (c) investment and securities regulation.

  2. Schnickenwobble was later reversed on the grounds that the bill of lading specified a purple piano with green trim, while Gus had ordered a purple piano with gold trim. Can you think of any other cases which turned on apparently insignificant details? See Doyle, Adventures of Sherlock Holmes (1891).

  3. The doctrine expressed by Judge Reck in McAtterwall was recently reversed by the Supreme Court. In a now-famous decision Justice Flail wrote:

    ✱ ✱ ✱ Numberless attempts have been made to introduce a modern, enlightened viewpoint into the law of musical instruments. Every one of these attempts has hitherto been frustrated by the dead hand of McAtterwall. ✱ ✱ ✱ There comes a time when society can no longer tolerate these outworn relics of a bygone era. It is the duty of the bench to recognize that sometimes a judicial precedent, however much hallowed by age and custom, must give way to the forces of progress and common sense. ✱ ✱ ✱ (Pineapple Chewing Gum v. Goom Synthesizer Corp., 498 U.S. 1)

    The court went on to void the McAtterwall doctrine, substituting in its place the classical rule of King's Feoff Privy en Trover Replevin onde Rilleragh. Assuming that you are familiar with this rule, discuss how it is likely to affect civil procedure.

  4. Evaluate Schnickenwobble in the light of other historic cases such as McCulloch v. Maryland and Marbury v. Madison. Be specific.


  1. But cf. Chowder v. Gumbo, 121 La.Misc.R. 40. In that case the court found that the bank's error had been committed under the influence of a curse invoked by defendant. The appellate court reversed, finding that the lower court had erred under the influence of a curse invoked by plaintiff.

  2. Or any other innovation. Q. Would you say he was a conservative in fiscal matters? A. If you ask me he was a ComSymp. Q. A what? A. A ComSymp. He told me one morning at breakfast, in summer of 1960 I think it was, he was going to raise the interest rate ½% on deposits. Luckily I managed to bring him into line. Cooley, I told him, if two per cent was good enough for your father it's good enough for you.

  3. This was in 1859. The territorial dispute has since been resolved in favor of Idaho (Matter of Smudley's Island, — U.S. —, — S.Ct. —, — L.Ed.2 —).

Col. George Sicherman [ HOME | MAIL ]