This Law Report, dating from May 1817, concerns a preliminary hearings of litigation between William Bainbridge and an unknown respondent. It was undoubtedly reported not for its legal importance but rather because of the farcical nature of the discussions.
It is possible that this was one of the many hearings in the Bainbridge v Briggs case which was finally concluding in 1817. However, this may be undermined by the reporter’s comment that the “issue to ascertain [was] the fact of the originality of the invention [of the double flageolet]”; the Briggs case principally concerned copyright violations and the single, rather than double flageolet. It also seems unlikely that Bainbridge and Briggs case was eventually resolved by an arbitrator, as happens here, rather than the Courts.
Sir Samuel Rommilly said, he had to apply to his Lordship for the purpose of preventing a defendant in an issue which had been directed by this Court, from forcing the plaintiff to trail under the following circumstances.
It was relative to the case of a person named Bainbridge, the inventor of a patent double flageolet. The issue to ascertain the fact of the originality of the invention stood ready for trail last term before Lord Ellenborough, but the Noble Judge had declared his absolute inability to decide such a cause.
He knew nothing about flageolets. It was a subject upon which he had never read a case in his life, and accordingly his Lordship recommended that the matter might be referred to an arbitrator. At this time it was supposed that Mr. Giffard, the present Solicitor-General, among his numerous qualifications, was deeply skilled in the science of music; nay more, it was supposed that he could play a concerto in this identical instrument, in as masterly a manner as he could argue a special case upon contingent remainders, [or] executory devises.
To him, therefore, the question was referred; but the appointment of that Learned Gentleman to the office of Solicitor-General, had rendered it impossible him to attempt the task of restoring harmony between the parties; besides, he did not feel himself qualified; for he was free to admit, that a very erroneous judgement had been formed of his knowledge of music, and particularly as to his ability to perform on the flageolet. He had therefore declined the office of arbitrator. The defendant now insisted upon trying the cause; other arbitrators had been mentioned, but the parties would hear of no one who was not a musician and a proficient on this instrument. The object of the present application was to induce his Lordship to nominate an arbitrator, as, unquestionably, if the cause went into Court, the same objection would be again made by Lord Ellenborough.
Mr. Wilson was proceeding on the same side, when The Lord Chancellor observed, that however agreeable it might be to hear the double flageolet, it would be too much to have a duet by two counsel upon a mere question of appointing an arbitrator.—Mr Harr said, he saw no necessity in this case for having a musical arbitrator. As well might it have been said the other morning, when the question was the appointment of an arbitrator respecting Day and Martin’s blacking, that no barrister was fit for the office who could not black shoes.—The Lord Chancellor said that was a very different case; he thought he himself could learn to black shoes much sooner than he could learn to play upon a flageolet.
Mr Harr stated that his client was a poor man; while, on the contrary the plaintiff was opulent, and could without inconvenience to himself, harass the defendant with motions of this kind. He client was determined not to submit his case to arbitration, and therefore he trusted his Lordship would dismiss the present motion with costs.
The Lord Chancellor recommended the parties to come to some terms upon the subject rather than be tearing each other to pieces with endless litigation:—Fortunately his Lordship’s good advice was attended to, and by a like good fortune a gentleman at the bar was recommended as arbitrator, who had all the qualities without which the parties though they could not have justice done them—The gentleman selected was not only a Mozart for his general knowledge but he was particularly famous for “discoursing most eloquent music” upon the immediate subject of the present dispute. All matters in difference were accordingly referred to Mr. Burnell.
Reported in: “The Hull Packet and Original Weekly Commercial, Literary and General Advertiser”, No 1596, May 1817