The cases that changed Britain: 1870-1916 (Part II)

From Times by Gary Slapper (Note: Please refer to the article dated 18th June 2008, The Cases That Changed Britain: 1785-1869)

Gorris v Smith
April 23, 1874

Statute law can only be applied to do what Parliament passed it to do. In this case, a ship owner agreed to take the claimant’s sheep from Hamburg to Newcastle, but some of them were washed overboard. The owner of the sheep sued. He argued that no pens had been provided on the ship, in breach of a statutory duty under the Contagious Diseases (Animals) Act 1869, which required pens to be installed on the decks of ships used to transfer animals. If there had been pens on the decks, the sheep would have survived. However, the court ruled that the claimant could not claim damages on such grounds because the object of the statute was to protect animals from contagious disease, not from falling into the sea. The case is often cited by anyone seeking to show that once a law has been made for a particular purpose, it would be wrong to apply it for another.

Dickinson v Dodds
April 3, 1876

This was a classic decision that informed millions of commercial and contractual negotiations since. It says that if you make an offer you can withdraw it at any time before it is accepted. The case concerned the sale of a property by the defendant, John Dodds. Initially, Dodds agreed to sell it for £800 to George Dickinson, giving him a couple of days to accept. But Dickinson’s letter of acceptance wasn’t received until it was too late, and in the mean time Dodds sold the property to another man. Dickinson sought a court order to force Dodds to sell him the property but the court refused. It held that anyone making an offer was entitled to retract it at any time before it was accepted. By selling the property to someone else, Dodds had retracted his offer.

Seaman v Netherclift
December 16, 1876

In order to get the fairest and truest results from cases, it is very important that expert witnesses should speak freely and fearlessly. This case, in an era in which the use of expert witnesses was growing significantly, was a good illustration of how the courts were careful to give protection to witnesses against defamation actions. The defendant was a handwriting expert. He had given evidence in a case that a signature on a will was a forgery, though his view was not shared by the court. Later, in another case, also about a witness contesting a will, he expressed his opinion again during cross examination that the signature in the earlier case had been a “rank forgery”. That led to one of the attesting witnesses to that earlier will suing for slander. However, this case of slander was dismissed, as the remark was uttered in court while giving expert evidence and was therefore “privileged”.

Cundy v Lindsay
March 4, 1878

This landmark judgment upheld the principle that you can’t pass on what you don’t own. Lindsay & Co was a linen manufacturer based in Belfast. Alfred Blenkarn, a resident of Cheapside in London, wrote to Lindsay proposing to buy a quantity of goods. He gave his address as “37, Wood Street, Cheapside” and signed the letters without using an initial or first name so that his signature appeared to read “Blenkiron & Co”. Lindsay knew there was a respectable firm, W Blenkiron & Son, based at 123 Wood Street, so it sent the goods. But Blenkarn didn’t pay, and instead sold the goods to the defendant. Lindsay sued the defendant for the value of the goods. The House of Lords held that because of the trick no contract had been concluded between Lindsay and Alfred Blenkarn. And because Blenkarn didn’t legally own the goods, he couldn’t legally transfer them to the defendant. Consequently, the defendant was ordered to pay Lindsay for the full value of the goods. Needless to say, as news of the decision percolated out into the commercial world, in which capitalism was rapidly developing, commercial buyers began to get very particular about ensuring sellers actually owned the goods they were selling.

Sturges v Bridgman
July 2, 1879

In a drama that sounds more like a story from an old British film comedy, this case formulated an important principle in the law of nuisance. A confectioner and physician occupied adjoining premises in London. Dr Octavius Sturges lived at 85 Wimpole Street and Mr Bridgman at 30 Wigmore Street. As part of his business activity, for more than 20 years, the confectioner used two large mortar and pestles. The noise and vibration hadn’t seemed to the physician to be a nuisance until he built a consulting room at the end of his garden, against the wall of the confectioner’s kitchen, in which the mortars and pestles operated. Dr Sturges sought an injunction to stop the noise and won. The court decided that the confectioner, Bridgman, could not claim that long usage of the equipment had established a right to make such a noise. Rather, the nuisance had only begun when the new consulting room was — quite lawfully — built close to the source of the noise.

Munster v Lamb
May 9, 1883
For justice to be achieved, it is important that lawyers are uninhibited in their courtroom advocacy. The principle was illuminated in this case, made especially vivid by the fact that both the claimant and defendant were themselves lawyers. Munster was a barrister. During the trial of people accused of burgling his Brighton home, the defendants’ solicitor, Lamb, suggested that Munster kept drugs in his home for immoral purposes. Munster later sued him for defamation. However, it was decided that Munster wasn’t entitled to damages as Lamb’s statement was made by a lawyer within the bounds of the privilege extended to advocates.

R. v Dudley and Stephens
November 7, 1884; December 10; 1884

This was one of the most famous and gruesome cases in English law. Can necessity ever be recognised as a reason for killing someone? The defendants, Thomas Dudley and Edward Stephens, were shipwrecked 1600 miles from the Cape of Good Hope along with another man and a cabin boy, Richard Parker. After 18 days adrift in an open boat, for seven of which they were without food, Dudley and Stephens decided to kill Parker and eat him. The other man refused to take part in the plan but on the 20th day adrift, Dudley and Stephens cut Parker’s throat. They lived off his flesh and blood for another four days before they were picked up by a passing ship. Dudley and Stephens were arrested and tried. The court ruled that the killing Parker was an act of wilful murder; even the extreme situation they found themselves in was no defence. Both were sentenced to death, but there was another twist to the story: out of compassion, their sentences were later commuted to six months.

Robinson v Kilvert
March 16, 1889

This case decided an essential point of law about what happens when, in an action for nuisance, it is clear that the claimant has only suffered because he or his goods are unusually sensitive. There is no nuisance if the claim has more to do with the claimant’s sensitivity than the conduct of the defendant. Robert Henry Robinson occupied the ground floor of the defendant’s premises in Garden Street, Manchester, for the purposes of storing brown paper. The defendant, a paper box maker, operated a boiler in the basement. After the boiler ruined Robinson’s brown paper — even though it wouldn’t have harmed any other paper and did not inconvenience his employees — he sought an injunction to restrain its use. But the court refused, holding that a man who carries on “an exceptionally delicate trade” cannot complain if it is spoiled by his neighbour doing something lawful in his property if it wouldn’t harm an ordinary trade.

R v Tolson
May 13, 1889

An exemplary instance of an appeal court using the common law inventively to prevent a manifest injustice. Martha Tolson received word that her husband, who had deserted her, had been lost at sea during a voyage to America. Five years after she last saw him, believing him to be dead, she remarried. But her first husband later returned from the US very much alive and she was prosecuted for bigamy. Under Section 57 of the Offences Against the Person Act 1861, which defined the crime, she did not have to have committed bigamy knowingly or intentionally for it to have been a crime. On the face of it, it was enough for a conviction for her to have remarried within seven years of her husband having deserted her. However, her conviction was quashed. The appeal court said that despite the absence of words such as “knowingly committing bigamy” or “intentionally committing bigamy”, which would have excused her, Ms Tolson was saved in this situation by an old common law rule. An “honest and reasonable belief” in the existence of circumstances that, if true, would make the accused’s acts innocent, was a proper defence, the court ruled.

R v Halliday
December 16, 1889

A decision that shaped a key principle of criminal law. James Halliday terrified his wife and daughter with threats of violence. His wife, in order to escape, began climbing out a window but her daughter grabbed her. Halliday shouted, “Let the bugger go”; the daughter did, and his wife fell and broke her leg. The appeal confirmed convictions against Halliday for an assault occasioning actual bodily harm and for maliciously inflicting grievous bodily harm. The law was expressed in this way: if someone creates in another person’s mind “an immediate sense of danger” causing that terrified person to try to escape, and in doing so the person sustains an injury, “the person who creates such a state of mind is responsible for the injuries which result”.

Christie v Davey
December 7, 1892

Everybody needs good neighbours. At what point the law can intervene when neighbours are not good is a matter of some importance; this case clarified the law in a way that has settled millions of disputes since. The case concerned a property at in Brixton. Holder Christie, the claimant, lived at the address with his musical family. His wife gave music and singing lessons; his daughter taught piano and violin; and his son played the cello until 11pm at night. In the adjoining semi-detached house, Fitzer Davey, an engraver, became irritated by the din. He described singing that resembled “the howlings of a dog” and dreadful “catgut vibrations”. To get his revenge, he maliciously blew whistles, shrieked and knocked on trays during the music lessons. The court held that such sabotage could be restrained by an injunction. The malice in Davey’s behaviour made his conduct unreasonable and a nuisance.

Carlill v Carbolic Smoke Ball Company
December 8, 1892
This was a hugely influential decision that went right to the heart of contract law. It is still cited every year in law exams and essays by thousands of law students. During a flu epidemic, Elizabeth Carlill, a writer and lawyer’s wife, bought a “smoke ball” from the Carbolic Smoke Ball Company. The company claimed its product — a small rubber ball with a tube attached, filled with carbolic acid that was flushed into the user’s nose — could cure the flu. Its adverts promised to pay £100 to anyone who used the ball but still got sick. Mrs Carlill bought a smoke ball, used it, and caught a cold. She successfully sued the company. Her case confirmed many modern contract principles. Incidentally, Mrs Carlill died 50 years later, aged 96, from influenza.

Wilde v John Sholto Douglas, Marquis of Queensbury
April 5, 6, 1895

In 1895, The Times reported on three trials of Oscar Wilde. It was the celebrity scandal of the century. The Marquis of Queensbury, who thought his son was being corrupted by Wilde, sent a card to Wilde’s club saying: “To Oscar Wilde posing Somdomite” [sic]. Wilde sued for criminal libel. Queensbury pleaded justification, accusing Wilde of soliciting more than 12 boys. The case had many marvellous episodes, particularly when Wilde was cross-examined:

COUNSEL: Have you ever adored a young man madly?
WILDE: I have never given adoration to anybody except myself.
Wilde lost after a fatal slip in cross-examination in which he seemed to say he hadn’t kissed a boy not because he was a boy but because he was ugly. Soon after, he was arrested for indecency. Wilde was eventually convicted after a second trial — the first jury failed to agree on most of the charges — and sentenced to two years with hard labour. The case included many shocking travesties of justice. For example, it came to light that throughout the proceedings, the young men who were testifying against Wilde were each being paid £5 a week by the police, an enormous sum at the time. Nevertheless, Wilde’s courtroom wit was bountiful. Asked by the seasoned 44-year old prosecutor Charles Gill whether he exalted youth, Wilde said he did and added, to courtroom laughter: “I should enjoy, for instance, the society of a beardless, briefless barrister quite as much as that of the most accomplished QC.” He was asked later whether his habit of giving cigarette cases to working class youths was not strangely expensive. Wilde replied that it was “less extravagant than giving jewelled garters to ladies”.

Salomon v Salomon
November 17, 1896

Salomon v Salomon was an important case in clarifying the legal definition of a company. Aron Salomon, a boot manufacturer and leather merchant, set up a company in which he held nearly all the shares and was managing director. He loaned the company his own money and received debentures in return. He was therefore entitled to a sum of the company’s assets. After the company later went into liquidation, Salomon sought to be treated as a “secured” creditor and to have his claim settled before those of other creditors. The House of Lords upheld his claim. It ruled that a company is separate from the individuals that compose it.

Wilkinson v Downton
May 10, 1897

The law against harming people is of immense importance in a civilised society. In defining a civil wrong in a new and clear way, this case was innovative. It created a tort of intentional infliction of mental shock. Thomas Wilkinson was a pub landlord on St Paul’s Road in east London. One day, while he was at the races, a regular named Downton decided to play a practical joke on his wife, Lavinia. Downton “falsely, fraudulently and maliciously” told Lavinia that her husband had had a “smash up” and was lying injured at the Elms Public House in Leytonstone. On hearing this, Lavinia experienced a violent nervous shock. Even after the truth became apparent, she experienced weeks of suffering and incapacity. The court ruled that she was entitled to damages as the defendant had wilfully, calculatedly, caused her distress.

Percival v Wright
June 24, 1902

This case shaped company law for decades by limiting the legal power of shareholders. It involved a group of shareholders in a colliery company called Nixons Navigation that wrote to the company secretary offering to sell their shares. The chairman and two other directors bought the shares at a favourable price. They quietly rubbed their hands with glee, knowing that an offer was soon to be made by a third party for a substantially higher price. Shareholders later discovered their dubious behaviour and applied to the court to cancel the sale. They argued that the directors should have acted in a trustworthy way. However, the shareholders lost the case because the duty owed by the directors was to the company, not to them. The ruling curtailed shareholder power for much of the 20th-century, though shareholders can today sue in such circumstances.

Nash v Inman
March 6, 1908
A case loved by law students for its archaic language of social class. It is a nice illustration of how the social axioms of an era become embedded in law. The action was brought by a Savile Row tailor for £145 for clothes supplied to the defendant while he was an undergraduate at Trinity College, Cambridge. The son of an architect who had a town house in Hampstead and a country house near Havant, the defendant was legally a minor at the time and therefore only legally liable for contracts that were for “necessaries”. The clothes supplied included, among other things, eleven fancy waistcoats at two guineas each. It was shown that the defendant already had a good supply of clothes suitable to his status in life so the new ones were not “necessaries”. That meant the tailor lost his claim.

Walters v WH Smith & Son
October 30, 1913

How far people other than the police have the power to arrest each other is an intriguing question. This case set the rules for decades. A private shop detective arrested the claimant on suspicion that he had stolen a book from one of the defendant’s shops. It turned out he hadn’t. It was held that a citizen can make an arrest after an offence has been committed but the arrest will be lawful only if the accused was guilty and the arrester had “reasonable and probable cause” for his suspicion. That wasn’t so in this case and the claimant was awarded £75 damages for false imprisonment. Today, you can make a citizen’s arrest only if you satisfy a string of requirements, including that that there were reasonable grounds for your suspicion and that you had reasonable grounds for believing that it was necessary to prevent injury, property damage or loss.

De Keyser’s Royal Hotel v Spicer Bros
January 24, 1914
There is nothing like noise nuisance to get people resorting to the law. The law here hinges on that most assuring and magical word: reasonable. This case sent soothing news to the sleep-deprived and sent reverberations through the construction industry. The defendants used a steam pile-driving machine during the night on a building site near the claimant’s hotel. It was held that in conducting building operations it is not reasonable and proper to operate a pile-driver at night if it means residents in an adjoining building cannot sleep. Such conduct was liable to be restrained by injunction. The injunction was granted to stop the work between 10.00pm and 6.30am.

R v Casement
July 19, 28, 1916

Sir Roger Casement, it is sometimes said, was hanged by a comma. This was a rip-roaring case about war, treason, syntax, punctuation, an ancient document and the noose. Casement was convicted during the First World War of conspiring with the Germans to further an Irish insurrection. The contentious punctuation mark appeared in some but not all versions of the law under which Casement was prosecuted, the Treason Act 1351. Ultimately, the comma allowed the definition of a traitor to include someone whose treachery, such as Casement’s, was committed outside the realm. In this case, Casement had made his plans in Germany. Before the final decision, two judges went to the Public Record Office to check with a magnifying glass what was on the original Statute Roll and Parliamentary Roll. Casement’s appeal was rejected and on August 3, 1916, he was hanged at Pentonville prison.

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