The deposition of Lord Executor is one of the fascinating footnotes in the story of the "Rum and Coca-Cola" litigation and it has never gotten the attention it deserves. I will try to correct this lapse in the near future. I have a copy of the deposition, including the unusual addendum, and I will post it on my site: www.rumandcocacolareader.com
A reading of the document does not support the claim that Executor was mentally incompetent when he was deposed in Port of Spain by U.S. Vice-Consul Courtland Christiani in March of 1947.
Here is the background: In the fall of 1946 the defendants in the "Baron vs. Feist" civil action contacted the leading law firm in Trinidad (or at least one of the leading law firms) in order to bolster their claim that the song "L'Année Passée" was based on a public domain melody.
The law firm was the J.D. Sellier and Co. and it is still in existence today. The man who handled the arrangements between Feist (the defendant) and Sellier was known in the documents only as "Mr. Power". Power elected to depose three Trinidadians who had knowledge of calypso which might shed some light on the matter: Harry Pitts, who had co-authored the 1944 book, Land of the Calypso; Henry McDonnell Carpenter, a classically trained musician who at that time was the music critic of the Kingston, Jamaica Gleaner; and Lord Executor. Of the three, Executor (real name Philip Garcia) was potentially the most damaging to the plaintiff because of his age. He was born in the mid-1880's and was in a position to claim personal knowledge of the melody before Lionel Belasco said he composed it in 1906.
It is hard to imagine that the lawyer(s) in Port of Spain would choose to depose someone whose mental competency was suspect. Also, Executor was the doyen of calypso at the time - his reputation for erudition was unsurpassed. On the other hand it appears that he had fallen on hard times and had lost his eyesight.
Executor was probably paid for his time, because his deposition covered two days, the 28th and 29th of March, and he had to answer two sets of interrogatories, one put together by the defense and one by the plaintiff. Executor's answers were all short and to the point.

His bombshell moment came in answer to interrogatory fourteen which was about when he first heard the melody, "L'Année Passée": "I have known this melody since about 1893 when I was a little boy living in Henry Street. It was a popular song of that period."

Unfortunately there was no follow-up question, which is of course one of the weaknesses of the deposition format. One would have wanted to hear exactly what words Executor heard and what he meant by the term "song" as opposed to the term "melody".

Executor did not have a chance to see or study the interrogatories in advance and one of the cross-interrogatories (the fourth) took him by surprise: "If you have composed calypso music, set forth the melodies of your calypso compositions, or - if you have composed more than five - set forth the melodies of at least five of them, and also state the title and the date of composition of each. If you are unable to write music, so state, and please sing the said melodies to someone who can and will write them down."

A tall order, you could say! To this question, Executor replied: "I am not prepared to give the words and melodies of my songs."

But Executor didn't give up. He took his scholarship and his authorship seriously. About six weeks later (this was on May 6th) he returned to the consulate and brought with him a trained musician by the name of George Johnson who lived at #19B Belmont Valley Road in Port of Spain. (Executor also lived in Belmont.) With the honourable Mr. Christiani in attendance he sang two of his songs, "The Donkey in Belle Eau Road" (1928) and "The Talk About Nora's Badness" (1939) and Mr. Johnson wrote down the melody as he sang. The transcription and a sworn statement from Mr. Johnson were submitted as an addendum to the deposition.

The above episode does not indicate (to me at least) the behavior of a man who was mentally incompetent.

Executor's simple statement about hearing the melody of "L'Année Passée" in 1893 would have invalidated, if believed, the incredibly elaborate case put together for the plaintiff by the famed Louis Nizer. Therefore the witnesses on the other side, like Belasco and Gerald Clark, mounted an all-out assault on Executor's character and credibility. In New York City, without Executor there to defend himself, they could get away with it. They would never have been able to to that in Trinidad.

Even so, Judge Rifkind never said in his opinion that he doubted Executor's mental capacity. He simply chose not to believe him. He put it this way: "Garcia's reputation was impeached by some of plaintiff's witnesses."

This process is part of almost all civil litigation. Both sides are lying and exaggerating and the judge has to pick someone to believe. And the judge cannot be overruled on this score.

Once again I will post Executor's deposition on my website as soon as I get a chance.

Yours truly,
Kevin Burke, Cambridge, Massachusetts
kburke9@mac.com