All members of the Irish Bar know of Averil Deverell, whose enigmatic representation in oils smiles down, Brodie-like, from the wall of the Four Courts Law Library.
Miss Deverell holds the distinction of being not only the first practising woman barrister in Southern Ireland but also one of the first (possibly the only?) set of twins at the Irish Bar, her twin brother Captain William Deverell featuring in the same call of 1921.
Although not possible to go back in time and see Miss Deverell on her feet, this report from the Wicklow People of 20 February 1937 illustrates how doughtily she fought on behalf of her clients in even the most hopeless of cases, and the respect accorded to her by judges and colleagues of her time, the same judges and colleagues quite rightly giving her no leeway or preference in court on account of her sex!
“Thomas and Jane Glynn, trading as P Glynn, 19 Essex St, Dublin sued John W Sheane, 7 Abbey Street, Arklow merchant, for the return of goods amounting to £65.6s 11.d or £100 damages for detention thereof. The plaintiffs’ case, made by Mr Casey, barrister, was that for 12 months or more the defendant had been obtaining goods in Dublin and elsewhere without disclosing that he was under 21.
Miss Deverell, barrister for the defendant, said that this was an action for detinue purely and simply, and the basis of that action was that the plaintiff must be in possession of the goods at the time the action was brought and that her contention was that at the time the action was brought the property in the goods had passed to the defendant...
Mr Casey [interjecting] – That is certainly very generous. This boy, I don’t know what his ideas are in the start of life…
Miss Deverell – This is an attempt by Mr Casey to prejudice my client in your Lordship’s eyes.
Mr Casey – You will get an opportunity to make your case.”
Mr Casey’s argument was that, being a minor, the defendant could not have made a contract. He drew attention to the fact that, when the plaintiffs discovered this and went to the defendant’s house to demand back the goods, the defendant had called in two Civic Guards, something which he described as “bordering – rather more than bordering – on criminal action on the part of the defendant.” He sought a declaration to amend the civil bill for a declaration that the money obtained by the defendant in the transfer of these goods, was the property of the plaintiffs, to be enforced by execution in the form of a decree as the defendant was now over 21.
Miss Deverell said that there had been no false pretences – her client went in in the ordinary course of business and gave orders. Her whole case was that the property passed by delivery, and that therefore the possession of the property was vested in the defendant, and an action for detinue could not lie, because the person bringing the action must be the party in whom the property was vested at the time of the action – that was the gist of the whole thing.
At this point a further interruption by Mr Casey took place, leading to a vigorous discussion further enlivened by contributions from the Bench:
“Mr Casey – If an infant has obtained property by fraud he can be compelled to restore it.
Miss Deverell – Mr Casey is seeking to convince your Lordship this is an ordinary action for sale by contract. It is detinue.
His Lordship – Suppose this young man was indicted for obtaining goods by false pretences and convicted would I have any jurisdiction to make an order for the return of the goods?
Miss Deverell – No, because this is an action based purely and simply on detinue.
Mr Casey – Undoubtedly he would.
Miss Deverell -That is on the criminal side.
His Lordship – Criminal law and civil law is all the same. Your proposition is the, that granted he obtained these goods by fraud…
Miss Deverell – No, I don’t suggest or admit he obtained the goods by fraud. Three was no fraud. He dealt with these people in the ordinary way and there was no question of age and he did not represent he was of age.
His Lordship – Did he not say that he was carrying on business?
Miss Deverell – He did.
Mr Casey – A bla’guardly business.
His Lordship – Better not make use of any observations.
Mr Casey – Your Lordship was rather encouraging me to let myself go.”
The report continues:
“There being some laughter, his Lordship queried why lawyers were always amused by cases where human ingenuity was at a premium.
In cross-examining, Miss Deverell asked for the production of the shop ledger by the plaintiffs, and when this was not available suggested it was to prevent the proving that there had been an actual sale. When Mr Casey said he would tender secondary evidence, Miss Deverell commented that this was very irregular.
At the end of the plaintiffs’ case Miss Deverell said she could only repeat what she said before, this must be regarded as a sale, the property had passed into the defendant’s hands, and while Mr Casey made an ingenious attempt to formulate an action for contract, this was not a contract, and while she admitted she had not the merits of the case, she had the law, because an action for detinue did not lie.
His Lordship said he would not give Miss Deverell a direction and asked if she proposed to give evidence, whereupon Miss Deverell replied that if his Lordship did not see his way to give a direction she did not propose to call evidence, and would have to seek other matters.
At this point Mr Casey stated that he proposed to call the defendant, who was at the back of the court, and this was assented to by the judge. When giving evidence the defendant said he did not know what happened to some of the goods. He did not know which he had or which he had not on his premises. He got the goods and was told he would have a month’s credit but in a week the plaintiffs were down pulling money out of him.
The defendant listed the goods that he had purchased from the plaintiffs as including beds, perambulators, wireless sets and toys. He admitted that he had been sued in a number of cases for non-payment of business debts incurred before he became 21 and had successfully pleaded infancy as a defence prior to his dealings with the plaintiffs, which occurred the day before his 21st birthday. He was currently owed a lot of money by his customers and would pay for the goods if he could possibly get it in.
His Lordship said he regarded this as a terrible case and he didn’t mind what trouble he went to. He intended to do what was right in this matter and have the whole thing sent forward with a view to prosecution.
When Miss Deverell referred again to the basis of her reply, his Lordship commented
‘You have made a plucky case and you have done it well. You have stood up in a case which was very hard. An advocate gets a bad case and must do it with as much vigour and vim as the best case that ever came to them. I have come to the conclusion on the evidence that the defendant deliberately and fraudulently set about getting these goods from the plaintiffs and that for the purposes of getting these goods he made representations that he was carrying on business as a trade and in the course of trade. He was an infant. As the results of those representations made by him a purported sale occurred – there was never a real sale, the goods remained the property of the plaintiffs. They were obtained by fraud and false representations from them. The actual custody of the goods – but no property – passed.‘
His Lordship further remarked that it would be a great reflection on the Courts of Justice if relief could not be granted in this case, one of the worst – possibly even the worst – cases of a commercial kind that had come before him. As it was in his power to do so, he would direct the endorsement of claim to be amended to claim a declaration that the plaintiffs were entitled to the goods and an order for their return and he would make an injunction restraining the defendant from parting with possession of the goods in the meantime.
Miss Deverell mentioned she would appeal and his Lordship said that before that came on, the defendant would not have the goods. He then worded the decree giving judgment for the sum of £65 6s 11d with credit for what goods would be recovered.
Mr Casey said if the defendant made no effort to get rid of the goods he would stand better in the eyes of the court and he would ask his Lordship to withhold the report to the prosecuting authorities.
His Lordship asked, what about the counterclaim made by Miss Deverell’s client for assault, and Miss Deverell intimated she would give evidence of the assault, but finally indicated she would waive it. Obviously his Lordship was against her, she admitted the merits were against her, but the law was with her. His Lordship struck out the counterclaim and remarked that he certainly had had much courage at the Bar but this was a great case and he thought Miss Deverell had the record.”
Just one instalment in the famous Arklow Infancy saga culminating in the 1938 prosecution of Mr Sheane on the charge of having obtained goods by false pretences! The jury failed to reach agreement on the question of his guilt. His furniture business at Main Street, Wicklow survived his legal travails and was still trading well into the Emergency. There is no record of any appeal by him on the detinue point.
I hope Miss Deverell got her fees for all her hard work on the case!