Juristic Writings and Law Courts
By
N. C. Chatterjee
The old doctrine that no jurist who had never been a Judge can be quoted in a Court of Law as an authority has been exploded. Lord Eldon observed in 1814 that a writer who had held no judicial situa. tion could be cited as an authority in Court (Johnes v. Johnes, (1814) 3 Dow P. C. 1).
I remember that in 1919 to 1922 when I was practising as a Vakil in the High Court of Calcutta on the Appellate Side, Counsel used to cite the great work of Sri Rashbehary Ghose on Mortgage. It was then the convention that only the text books of dead authors should be cited. But the work of Dr. Ghose’s standing was an exception. It would be flattery of a Judge to say that he knew as much law as Dr. Ghose.
Pollock’s Law of Torts received judicial tribute more than once. Lord Wright said that his work was ‘‘unfortunately not a work of authority.” I am quoting the relevant portion of the judgment of Lord Wright, then Master of Rolls, in Nicholls v. Ely Best S ....