The Queen V. Hermann: 4 q b d 284. March 22, 1879

A man gave his horse to the defendant to sell, and the defendant did sell it but kept the money received, and was thus found guilty of larceny. Stephen dissented from the majority (which upheld the conviction), arguing that the defendant was not the bailee of the money and thus had no obligation to return the money.

In this case, the secretary of the Port Philip and Colonial Gold Mining Company was in charge of executing certificates of shares to shareholders. The certificates were to be signed by the secretary, one director, and the accountant. The secretary issued a certificate to a Thomas Gledhill upon which the director’s signature was a forgery. Gledhill then transferred the certificate to the plaintiff, and the company refused to register the plaintiff as owner of the shares. Stephen held that the company was bound by the certificate. He based part of his decision on the fact that it was agreed that had there been no forgery, but rather a mere improper issuing of the certificate, the company would be bound. Stephen, contrary to the claims of the defendants, decided that the use of forgery did not make much difference. He also argued that “the company have authorized the secretary, and made it his official duty, to act in such a way that his acts amount to a warranty by them of the genuineness of the certificate issued by him.” In other words, the plaintiff had every reason to believe the certificate was authentic.

In a case where the deceased had made a loan to the defendant, his son, the question was whether upon the father’s death, the loan became an advance, or whether it remained a loan until the mother’s death. If the former, the son did not need to pay interest to his mother once his father was dead, but if the latter, the son would need to pay interest to the widow until she died. Stephen argued that “the crucial question in this case is, whether the clause relating to advances was meant to take effect at the death of the testator or the death of the widow.” He held that the latter interpretation should rule, as the rest of the will made clear that the father had wanted his wife to enjoy the income of his property after he had died, and also that the father had wanted all the children to be in equal positions financially based on his will.

An action was brought by a seaman against the master of a ship for failure to issue a certificate of discharge as was required by the Merchant Shipping Act of 1854. The seaman was seeking damages for his inability to obtain other employment, but Stephen held that as the Act already specified a penalty of 10 pounds, no action could lie except to recover that penalty.

The Licensing Act of 1872 made it an offence for a licensed person to sell liquor to a drunken person, and the defendant in this case had sold liquor to an intoxicated customer without knowledge of his drunkenness. Stephen held that the conviction should stand, as the statute did not specify that knowledge of the customer’s drunkenness was necessary. He argued that the language of the statute made it clear that it was an absolute prohibition with strict liability, and that honest, reasonable mistakes would only mitigate the penalties, not answer the charge as a whole. As to the contention raised by the defense that every offence must correspond to a guilty mind (mens rea), Stephen denied that this was true with regard to many modern statutes.

The appellant in this case occupied the first floor and basement of a building but had no key and slept elsewhere. The superior landlords levied a distress on the goods in the apartment because the appellant had yet to render 75 pounds due to them for rent. The appellant then commenced the action, alleging that under section 1 of the Lodgers’ Goods Protection Act of 1871, the goods had to be returned to him. Stephen held, however, that the appellant was not a lodger within the meaning of the statute because he did not sleep in the premises, and that the appellant was not protected by its sections.

The London School Board had made a by-law requiring that children between the ages of 5 and 13 must attend school unless there is a reasonable excuse. A 12 year old girl did not attend school because she was employed to help her parents support the family. While this was not one of the enumerated excuses, Stephen held that it was a reasonable excuse for non-attendance, stating that “there is nothing [he] should read with greater reluctance in any Act of Parliament than that a child was bound to postpone the direst necessity of her family to the advantage of getting a little more elementary instruction for herself.”

The local water authority caused a water supply to be brought into water pipes in an area of town and gave notice to a house on the street, in accordance with section 62 of the Public Health Act of 1875 to complete all necessary efforts to obtain a supply of the water. The homeowner did nothing to obtain a water supply, but the water company brought an action for water rates. Stephen held that the defendant was liable for the water rates, maintaining that the local authority was not bound to make an actual connection to the house in order to charge for the water.

Stephen concurred with the Court, which held that a school board is ratable to the relief of the poor for occupying a public elementary school, regardless of whether they were owners or lessees of the building. Stephen added that in addition to being a correct interpretation of the statute and prior cases, the Court’s decision resulted in a just and proper outcome in the particular case.

Under a general order of the Poor Law Board, it was stated that guardians may employ whomever they consider necessary to work. Stephen held that it was reasonable for them to employ a Roman Catholic clergymen to minister to those Catholics inmates. He stated that according to section 21 of the Poor Law Amendment Act of 1868, “every inmate for whom a religious service according to his own creed shall not be provided in the workhouse shall be permitted…to attend…some place of worship of his own denomination within a convenient distance...” He believed that this amendment made it clear that it was legal to provide religious services within the workhouse.

This case involved a contract between brokers and buyers of hides which stipulated that all disputes would be resolved by the selling brokers. The buyers sued the brokers for delivering inferior hides in breach of the contract. Stephen held that evidence regarding custom of the trade was irrelevant where it was inconsistent with the arbitration clause. He maintained that the cases cited for the plaintiffs were not binding, as they all involved contracts without an arbitration clause.

Richardson & Ropers, auctioneers, commenced an interpleader action between two claimants, Thompson and Wright. Wright had ordered the auctioneers to sell the goods in dispute, and Thompson informed them that the goods belonged to him and should not be sold. In return, Wright again told the auctioneers to sell the goods, and informed them that he would give them an indemnity. The auctioneers then sold the goods and commenced this action to settle who should receive the sum that was paid for the goods. Wright then objected to the interpleader action, but Stephen held that the fact that the auctioneers took an indemnity did not prevent them from commencing an interpleader action so as to avoid “circuity of action” and to prevent them from being sued by both parties.

Stephen concurred with Justice Grove that it is a misdemeanor to destroy a corpse “upon which an inquisition is to be properly held.” However, he made it clear that the coroner does not have an absolute right to conduct an inquisition, but rather that there must be some reasonable suspicion about the manner of death. Thus the destruction of a body is only an offense if the inquisition would be proper, but a man who so destroys a body does so at the risk of the inquest being proper.

Stephen delivered the opinion for Justice Mathew and himself. The question at hand was whether hearsay evidence could be admitted. The exception to the rule that hearsay evidence is to be rejected is in cases where the evidence is admitted to prove pedigree (birth, death, and marriage). The evidence that was sought to be admitted in this case was an affidavit from an unrelated suit, made by the deceased father of the defendant, stating what the defendant’s birth date was (as proof of the defendant’s infancy, which was meant to be a defense to the suit). Stephen cited numerous cases in an effort to flesh out the rule and exception to the rule excluding hearsay evidence. He concluded that as the evidence was admitted to prove infancy, and as it was not in a strict sense a case of pedigree, the hearsay evidence could not be admitted. However, he maintained that instead of finding for the plaintiff, there would need to be a new trial as there was other evidence of the defendant’s infancy.

Stephen, writing the opinion for both himself and Justice Grove, held that under the Order as to the Supreme Court Feels of 1884, Schedule 52, the fee to be paid “on entering or setting down…an appeal to the Court of Appeal, or a cause or matter for trial or hearing in any court in London or Middlesex…”, was payable even though the hearing didn’t arise from an action, but rather a rule nisi.

A bill of sale was executed which was later discovered to be void due to some clauses inconsistent with the Bills of Sale Acts. The bill was then cancelled and a new one was executed, which did not indicate that it was in substitution for another one, however it stated that it was “in consideration of 1500 pounds”. Stephen held that the consideration was “truly set forth in the bill of sale”, and that it wasn’t necessary to specify that the bill was a substitution. Furthermore, the deed stated that the grantee could receive the money should the grantor “do or suffer any matter or thing whereby he shall become a bankrupt”. Stephen held that this was sufficiently similar to the words of section 7 of the Bills of Sale Act (“if the grantor shall become a bankrupt”) that the bill was not void.

Stephen held that in a case where a bankruptcy petition was mistakenly presented in the wrong court, the court would have jurisdiction to hear the petition.

In a bankruptcy case, where the man declaring bankruptcy had previously been found to have obtained credit from a bank under false pretences (a misdemeanor), a friend of the man offered to pay the amount obtained from the bank in return for a promise that there would be no proceeding against the man. It was later discovered that the amount paid by the friend was in fact the bankrupt’s money. Stephen held that there was no legal consideration between the friend and the bank, as it was a corrupt bargain (Stephen called it “an offence against the bankrupt laws”).

Two defendants, in an attempt to defraud a prior plaintiff of his judgment, sought the advice of an attorney, who was unaware of their unlawful purpose. Stephen held that the evidence from the attorney could properly be admitted, and that the principle of attorney-client privilege did not extend where the communication occurred before the commission of a crime. In his decision, Stephen cited numerous authorities in favor of his judgment, as well as distinguished those that seemed to argue against it. One example is Greenough v. Gaskell, 1 My. & K. 98, in which the judge held that an attorney could not be compelled to disclose communications between himself and his client. Stephen argued that “the present case does not fall either under the reason on which it rests, or within the terms in which it is expressed”, because the present case could not be said to have been a communication in the “ordinary scope of professional employment”, and also because it was contrary to public policy to allow an attorney to refuse to disclose communications with his client which resulted in the commission of a crime. He further argued that for privilege to apply “there must be both professional confidence and professional employment”, and in the present case there could be neither, because the client “must either conspire with his solicitor or deceive him.” Finally, Stephen overruled three cases which extended privilege to cases such as the present one.

In an application for an order to require the plaintiff pay the fees of the defendant, Stephen held that the application should be denied.

Section 158 of the Metropolis Management Act of 1855 required that every vestry and district board should occasionally require the overseers of the parish to levy the sums the vestry needed to execute the Act. Section 161 of the same Act required that the overseers to whom such an order was issued should levy the amount needed. Stephen concurred with Justice Matthew (Justice Day dissenting) in holding that notice of the order was sufficient to require the overseers to levy the sums needed, and that service of the order was not necessary. Stephen maintained that notice of sealing the order was as good as service of the order. He went on to mention that while Justice Day agreed that Stephen’s and Matthew’s interpretation of the law was the most convenient, he disagreed that it was the true one; Stephen, on the other hand, argued that “[w]hen I find my interpretation is the most convenient, it strengthens my opinion that my interpretation is the true one.”

Stephen concurred with the judgment of Lord Coleridge, although he disagreed with Coleridge’s interpretation of the term “attachment”. Both Stephen and Coleridge held that in a case where the defendant had been ordered 8 years prior to pay the plaintiff, a judge could order that the remaining fees be paid, despite the fact that 6 years had passed. Stephen maintained that under rule 23 of Order XLII, “where six years have elapsed since the judgment the party alleging himself to be entitled to execution may apply to the Court or a judge for leave to issue execution accordingly. Under Order XLV….the Court or a judge may upon ex parte application order that all debts owing from the garnishee shall be attached…” According to Stephen, these guidelines were complied with, and thus the order that the defendant should pay the remaining money due was fair. He conceded that his interpretation of the word “attachment” was a broader, more general use than that of Lord Coleridge, but that the result was the same.

Stephen concurred with Justice Cave.

Stephen, along with Justice Cave, concurred with Lord Coleridge.

A citizen had sent a letter to the overseers of his township to object to the name of another citizen on the list of voters for the parliamentary election. There were three lists of voters, the first being the only one to have divisions. The letter specified that the voters were in “Division 1” but did not identify which list. Stephen, concurring with Lord Coleridge, held that while the letter was not completely accurate, it was “intelligible enough”, and that as only one list had divisions, it was clear which list the citizen meant. Therefore, the revising barrister had the authority to correct the description of the voter objected to.

In an action on a marine insurance policy, Stephen held that the construction of the policy dictated that the underwriters of the policy must bear the cost of the damage incurred, despite the fact that the losses amounted to more than three percent of the policy, because the individual losses were less than that amount.

In an appeal from a larceny conviction, Steven argued that the conviction should be quashed, but as the Court was equally divided, the conviction stood. The case arose out of a transaction between the defendant, Ashwell, and the prosecutor, Keogh. The former lent the latter what they both believed was a schilling, but which was in fact a sovereign. Ashwell realized shortly after receiving the coin what it really was and fraudulently kept it for his own use. Stephen argued that the conviction should be overturned because “[f]rom the earliest times it has always been held that a felonious taking is essential to larceny, and that a fraudulent conversion of property after an innocent taking, though in some particular cases criminal by statute, does not amount to larceny at common law.” He cited several cases for this proposition, yet noted that they were all cases of the alleged criminal finding property. However, he alleged that this distinction only strengthened his argument, as in the case of someone finding property, the alleged criminal knows that the property belongs to someone else. In the case at hand, Ashwell reasonably believed that the property belonged to him, as Keogh had voluntarily lent him the coin.

Stephen concurred with Justice Grove.

Stephen concurred with Justice Grove that the court could not extend the time period for making an award under the Public Health Act. He argued, “I do not think we can make small amendments of Acts of Parliament by construing them against their natural sense.”

Stephen concurred with Justice Grove.

In this case, the plaintiffs, a building society, were suing the defendant, a member of the society, for non-payment of installments on his mortgage. The defendant contended that he had made the payment and applied to the Court to have the matter compelled to arbitration. A rule of the Building Societies Act provided that disputes could be sent to arbitration, but dispute was defined as a disagreement between the society and a member in his capacity as a member of the society, and should not apply to disagreements regarding the construction or effect of a mortgage deed. The plaintiffs argued that the disagreement did not fall into the definition of “dispute” as required by the rule, and thus that the action should be heard in court. Stephen held that the case was covered by the term “dispute” in the rule, and thus that the case could be compelled to arbitration. He maintained that the plaintiff’s interpretation of the words of the rule the language of the rule redundant, and that the defendant’s interpretation was much more consistent with the rest of the section.

Stephen concurred with Justice Grove.

Stephen concurred with Lord Coleridge and Justice Manisty.

Stephen concurred with the Court, holding that where a judgment had been obtained against defendants who were retired officers of the army, the pensions of these officers, having been granted to them solely for past services, could be received to pay the plaintiff. Stephen argued that if the pensions had been retaining fees instead, meant to provide for future services, they could not be received to settle debts. Finally, he noted that section 25 of the Judicature Act did not enable the Court to allow a creditor to reach funds which they could not reach before; but in the present case, the funds had always been made liable to debts, so there was no trouble with the order appointing a receiver for the pensions.

The Gasworks Clauses Act of 1847 stipulates that a gas company should make an annual statement of account, and the Gasworks Clauses Act of 1871 prescribes the form in which the statement should be made. The Leamington Priors Gas Company was incorporated through a special act, which prescribed a special form for the annual account. Stephen held that the company should use the form mentioned in their special act, as upon incorporation, the section in the Gasworks Clauses Act which prescribed the form to be used was explicitly excluded in the special act.

On an appeal from an order allowing the defendant’s court costs to be paid by the plaintiff where the defendant succeeded on the merits, Stephen held that the judgment should be overturned. The judge below had contended that the order he gave was justified because the case involved a “question of character”, which was a question of public interest. Stephen rejected this justification, saying that he was “unable to conceive of a case in which the character of an individual could rightly be considered to be a matter of public interest.”

Stephen concurred completely with Justice Denman, who held that a man had not been disqualified from the post of councillor merely because he held the office of alderman at the time.