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

Stephen concurred with Lord Coleridge, who held that when evidence is illegally submitted to a jury who finds the defendant guilty, the conviction must be overturned, even if there is other evidence upon which a guilty verdict could be based. Stephen went on to show that the cases offered as support for the prosecution were not persuasive.

Stephen concurred with Lord Coleridge and Justice Pollock that in a criminal case where the alleged victim denied having sexual relations with the defendant prior to the alleged rape, the defendant may present evidence to the contrary. Stephen added that “nothing which has been said as to the inadmissibility of evidence of the prosecutrix having had connection with other men is intended to conflict with the right of the prisoner…to give evidence that the woman was a common prostitute.”

In this case, a company had been taxed twice on the same property, and had paid the government the requested amount. They had received a sum from the government as a refund, but this sum was only approximately one third of the overpayment. The company then petitioned to receive the rest of the refund.

Stephen began by discussing the Statute of Limitations, which on this type of claim was three years; thus, the company could only claim a refund for the previous three years, and no further back. As to whether the petitioners had a right to receive their overpayment, Stephen believed that they did not. He argued that simply because the government had offered a small refund did not indicate that they had admitted they were at fault. Therefore the company could not receive any money through a “Petition of Right”.

The money must then be considered a surcharge, Stephen argued, to which the only remedy can be an appeal. As the petitioners did not appeal the tax assessment, they could not receive a refund.

Stephen concurred with Lord Coleridge and Justices Denman, Pollock, and Hawkins, agreeing that the conviction for a prisoner charged with perjury under the Bankruptcy Act of 1883 should be quashed, as his alleged perjured statements took place in the absence of a registrar, where the act required that the examination must be done by “the Court”. Stephen went on to stress the necessity for more registrars, and added that “evidence taken under such circumstances is not evidence at all.”

Stephen wrote the first opinion, with which Justice Wills concurred. British law made it legal to deduct a certain portion of wages of the employees gathering the minerals if such deductions were agreed upon by the banksman or weigher or weight-checker. In this case, the deductions were not made in the proper manner, and thus the plaintiff was allowed to regain the deducted wages.

Stephen, writing the main judgment, found for the Crown. He held that the settlor, Edmund Peel, had a life interest in the trust. Furthermore, Stephen wrote that in determining the meaning of a word, one should not simply adopt a meaning that was chosen for another, wholly separate case. He argued that in the prior case, the presiding judge was not attempting to define the word “interest” for all future cases, and that “the only proper method of construction which I know is to read the words through and ascertain what they mean.”

Stephen held that the Prison Act of 1865 gave jurisdiction of prisons to the county in which the prison sits, and that the Prison Act of 1877, which transferred prisons to the Secretary of State, did not strip the county of their jurisdiction. Justice Wills concurred.

Stephen held that according to the Metropolis Local Management Act, the vestry of a parish can determine whether or not a pension will be granted to an employee; however, once the vestry has decided that a pension will be granted, they must follow the guidelines provided by the statute as to how large the pension will be.

The respondent, Brooks, was a partner in a law firm in Melbourne, Australia, although he was domiciled in England. A large portion of his income from Australia, while not remitted to him in England, was taxed according to the British tax schedule. Stephen disagreed with Justice Wills, holding that Brooks’ whole income could be taxed, despite the fact that his profits were made in Australia. As Wills was the junior judge, he subsequently withdrew his judgment, and Stephen’s judgment stood.

Two railway companies entered into an agreement, which included a clause that all differences should be referred to arbitration. When a difference arose, one party made an application for arbitration, and the other party objected. Stephen held that in order to be referred to arbitration, the difference must be “required or authorized to be so referred”. He found that in the present case, the difference was not within the meaning of that term, and thus that the commission had no jurisdiction to arbitrate.

Stephen decided this case on the authority of Randell v. Thompson (1 Q B D 748). That case held that in order to apply the Common Law Procedure Act, “there must be a subsisting agreement to refer capable of being enforced.” Stephen held that where a party to arbitration revoked their submission to a particular arbitrator, the other party could not fall back on the arbitration agreement as a general agreement and stay the proceedings in court. Justice Charles concurred.

In an appeal from a judgment ordering a husband to pay his wife a weekly sum after having deserted her, Stephen held that the judgment could not stand, because the parties were not living together at the time the husband stopped supporting his wife, and thus there could be no desertion.

This case centered on the debate between different unions who were attempting to determine where a pauper was settled. The pauper’s father had died before she reached the age of sixteen, but her mother, at the time of the case, was remarried. Stephen held that as she had no “widowed mother” at the time she became chargeable, her settlement should be her own birth settlement, and not her mother’s.

In a case where a magistrate had advised his friend, the plaintiff, not to commence a suit, and where that magistrate was later subpoenaed in the case, Stephen held that he was not barred from sitting as a judge on the case. However, it was stated that in any case where the magistrate had a pecuniary interest, no matter how slight, or where the magistrate had a substantial non-monetary interest that would make him biased, he could not sit on the bench. In this case, Stephen found that the magistrate’s interest was not sufficient to produce a bias in him, or to support barring him from the bench.

Stephen held that in a case where the issue related to a “contract, obligation, or liability affecting land”, the Court had power to allow service of summons out of the jurisdiction.

Stephen delivered the main judgment, holding that the defendant could join other parties as co-defendant, despite his inclination to hold the opposite. He based his judgment on the authority of Kendall v. Hamilton.

Stephen delivered the opinion for himself and Justice Smith. In a breach of contract case where the plaintiff resided in England and the defendant resided on the Isle of Man, Stephen held that as the breach occurred in the jurisdiction, the Court could allow service of the writ outside the jurisdiction on the Isle of Man. Stephen pointed out that the statute made an exception for defendants domiciled in Scotland or Ireland, but made no exception regarding the Isle of Man. Stephen further held that the High Court of

This case was action tried before Justice Stephen without a jury. The dispute was between a young member of a parish, the plaintiff, and a churchwarden, the defendant. The plaintiff had tried to enter the church, but the defendant had put his hand on him and pushed him back because he didn’t believe the plaintiff could find a place to sit in the church. Stephen first held that the churchwarden did not have the right to prevent a person from entering the church simply because he believed there would not be a sufficient seat, as there was no legal authority for such a contention, and also that conferring this right would also mean that the churchwarden could determine what the exact capacity of the church was, and thus determine who could enter the church. Furthermore, Stephen argued that the churchwarden had no right to say that parishioners could not stand in the aisles in the church. Finally, Stephen declared that the plaintiff had a right to be on the premises, as “every member of the Church of England…..is bound to go to church under pain of ecclesiastical censure”.

In addition, where the defendant had contended that the court did not have the authority to try the case, as it was a “spiritual matter”, Stephen maintained that the case involved an assault, and thus that the court had the authority to hear it.
Rumley v. Winn: 22 Q B D 265. January 22, 1888.

Stephen concurred briefly with J. Denman.

The judgment of Justices Stephen and Smith was read by the latter.

A pauper, whose father died before she reached the age of sixteen, had lived with her mother and stepfather, and after she turned sixteen (at which time she became emancipated for purposes of settlement), she continued to live with them for close to three years. Stephen held that although she hadn’t lived there for three years after she turned sixteen, she had lived there for more than three years at the time of the trial, and thus that her settlement was in the parish where she resided with her mother and stepfather.

Stephen concurred partially with Justice Manisty. However, he did not agree with Justice Manisty that the case of Moorhouse v. Linney was applicable, and that the case could have been decided with out it.

Stephen concurred with Justice Manisty that in a case where the plaintiff has discontinued an action before it reaches trial, whether or not the defendant can recover expenses reasonably incurred in obtaining evidence is up to the discretion of the judge.

Stephen concurred with Justice Manisty’s judgment that an innkeeper could be convicted of allowing gambling on the premises, notwithstanding his being unaware of it, so long as a servant who has had some responsibility delegated to him is aware of it. Stephen distinguished Newman v. Jones from this case by its circumstances, arguing that in the former case the defendant was a trustee of a club, which is sufficiently different from a licensed innkeeper that the seemingly inconsistent verdicts are actually consistent.

Where the owner of a liquor license was convicted of allowing the premises to be used as a brothel, Stephen concurred with Justice Manisty that the license could not be transferred to another party, as it was forfeited upon the conviction, and thus not “in force” within the meaning of the Wine and Beerhouse Act of 1869, 32 & 33 Vict. c. 27.

Stephen concurred with Justice Manisty, holding that section 39 of the Poor Law Amendment Act of 1844, which allowed taxation of the costs of solicitors employed by a board of guardians, did not prevent the solicitor from taxation between the solicitor and his client under section 37 of the Attorneys and Solicitors Act of 1843. Stephen added that “the object of the section is to prevent the waste of the rates in useless expenditure. The liability of the guardians to their solicitors is quite a different matter…”

Stephen, writing the second opinion in the panel of five, concurred briefly with Justice Manisty.

Stephen concurred with the majority that the defendant’s conviction should be quashed. The defendant had been convicted of inflicting “grievous bodily harm upon another person” by having sexual relations with his wife while he knew he had gonorrhea, and thus transmitting the disease to her. Stephen argued that the transmission of disease was not sufficient to support a conviction, using the analogy of a man infected with smallpox infecting a friend by shaking his hand. He maintained that punishing the spread of infectious diseases would go too far. Furthermore, he argued that the fact that a law is “immoral” does not automatically make it “unlawful”, as the statute required, and having sexual intercourse with his wife was clearly not illegal.

Also, Stephen took up the issue of whether the husband’s silence as to his infection was fraud, and thus would negate the wife’s consent. Stephen argued that “the only cases in which fraud indisputably vitiates consent in these matters are cases of fraud as to the nature of the act done. As to fraud as to the identity of the person by whom it is done, the law is not quite clear.” In this case, the wife consented to sexual intercourse, and there was no fraud as such. Stephen concluded by saying that while the actions of the husband were “abominable”, he could only be punished criminally on the authority of a statute.
The Birmingham and District Land Company v. The London and North Western
Railway Company: 22 Q B D 435. January 19, 1889.

Stephen concurred briefly with Justice Denman, who held that a motion for a new trial should be denied. Stephen argued that the Regulations of Railway Act of 1868 allowed a judge “to substitute the tribunal of a judge and jury for that of a sheriff and jury”. Since a motion for a new trial is not available for one of the proceedings, it is not available for either.

The judgment of Justices Stephen and Denman was delivered by the latter.

In an appeal from an order adding the executors of a woman’s estate as a third party, Stephen concurred with Justice Denman in holding that the order should be reversed. Stephen went on to further analyze the authority for Justice Denman’s judgment, Norris v. Beazley, 2 C. P. D. 80, in which Justice Grove maintained that “the power [to add defendants] is limited by the order to cases where the addition of a party is necessary to enable the Court to adjudicate upon and settle ‘all questions involved in the action.’” Stephen argued for a relatively strict construction of the term “limited”, arguing that the plaintiff in some cases may add defendants, but not all cases.

Stephen wrote the opinion for himself and Justice Denman in this public nuisance case. He held that “if a person erects on his own land anything whatever calculated to interfere with the convenient use of the road, he commits a nuisance.” Furthermore, he declared that the plaintiffs would be allowed to show that similar accidents had occurred on the defendant’s land as evidence that there was in fact a nuisance.

Stephen concurred with the judgment of Justice Denman that the fact alone that an arbitrator makes a mistake of law is not sufficient to allow a party to the arbitration to go to court in an attempt to revoke his submission to the arbitrator. He maintained that the old rule (“that parties submitting to a reference took the arbitrator with his law good or bad for better for worse”) was still in practice, and was a satisfactory rule.

The judgment of Justices Stephen and Denman was delivered by the latter.

Stephen concurred with the majority in this case, and conceded that his jury instructions were incorrect. He had instructed the jury that a “belief in good faith and on reasonable grounds in the death of one party to a marriage was not a defence to the charge of bigamy against the other who married again with the seven years.” The jury convicted the defendant of bigamy after receiving these jury instructions, and the question on appeal was whether the instructions were correct. Nine out of the panel of fourteen, including Stephen, held that the instructions were incorrect. Stephen went on to discuss the element of “mens rea”, or a guilty mind, in each crime. He maintained that the defendant, having a good faith belief that her husband was deceased, did not have the requisite “guilty mind” to commit the crime of bigamy.

Stephen read the opinion for himself and Justice Huddleston. He held that a woman who had been elected a member of city council could not hold office. The Municipal Corporations Act of 1882 required that in order to be elected a councilor, a person must be enrolled as a burgess. The Municipal Corporations Act of 1835 required that a burgess be “a male person of full age” (5 & 6 Wm. 4, c. 76, s. 9). However, this definition was modified by the Act of 1869 (32 & 33 Vict. c. 55, s. 1) to omit the word “male”, thus leaving it as “person”. The Act made clear that females should be included wherever words were used for the masculine gender, “for all purposes connected with and having reference to the right to vote on the election of councillors, auditors, and assessors.” Stephen argued that there was no specific enactment in the Local Government Act of 1888 which made women eligible for holding office, and that if that was one of the purposes behind modifying the Act of 1869, it should have been made unambiguous.

The second question which was debated was whether the votes that had been cast for the woman should be thrown out, or whether there would need to be a new election. Stephen held that the votes should be thrown out because all those who voted for her were aware of the potential consequence that the person they voted for might not be elected due to her gender.
Chamberlain v. Stoneham: 24 Q B D 113. November 4, 1889.

Stephen concurred with Justice Huddleston that a witness, according to the Bankrupty rules, is entitled to recover fees for time lost, etc.

Stephen briefly concurred with Justice Huddleston.

Stephen concurred with Justice Huddleston, basing his opinion on the authority of Salter v. Cavanaugh (1 D. & Wal. 668), and Irish case. Stephen declared that while there are differences in the laws of England and Ireland, in the case at hand there was no difference.

Stephen concurred entirely with Lord Coleridge.

Stephen concurred briefly with Justice Hawkins. He contended that the words used in the statute had a “plain natural meaning”, and thus that it was a mistake to use a technical construction in interpreting the terms of the statute.

Stephen concurred with Justice Hawkins, holding that the defendant could be found liable for possessing meat which is unfit for consumption, regardless of whether he intended it for sale. He argued that in interpreting a statute, “the true rule is to take the words used in their ordinary and natural sense, and to construe them accordingly, without reference to any supposed intention of the legislation which cannot be gathered from the natural and ordinary meaning of the words.” Furthermore, he contended that the defendant would be liable to conviction even if he did not know that the meat was unfit.

Stephen dismissed an appeal from an order of the county court because service of the notice of motion on the London agents of the respondents’ solicitor is not sufficient. Justice Hawkins concurred.

Stephen concurred with Justice Hawkins.

Stephen concurred with Justice Hawkins.

Justices Stephen and Charles concurred with the judgments of Justices Pollock, Hawkins, and Denman.

Stephen concurred with Justices Denman and Hawkins. He argued that the meaning of the expression “political character” which was used in the statute at hand was that which was printed in his book, History of the Criminal Law (it must be incidental to and form part of political disturbances). Furthermore, he criticized Mill for using interpretations that were too wide. With regard to drafting Acts of Parliament, he said, “it is not enough to attain to a degree of precision which a person reading in good faith can understand; but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it.”

Stephen concurred with Justice Hawkins.

Stephen dissented from Hawkins’ decision. Under the Public Worship Regulation Act, any three inhabitants of the diocese who believe that alterations to the “fabric, ornaments, or furniture” of the cathedral have been made without the appropriate authority could complain to the bishop, who then decides whether or not proceedings should occur. The bishop in this case declines to institute proceedings because there was a case pending in the House of Lords regarding a representation that was identical to the representation in the case at hand. Stephen argued that the bishop had not contemplated all the circumstances, and thus that this case should be examined regardless of the other pending case.

The judgment of Justices Stephen and Vaughan Williams was delivered by the latter.

In interpreting the language of section 29 of the Pawnbrokers’ Act of 1872, which required that a pawnbrokers’ license only be granted when accompanied by a magistrate’s certificate, except in cases where a person is already a licensed pawnbroker, Stephen held that the exemption applied not only to those pawnbrokers who owned businesses at the time of the Act, but also those who merely held a license.

Stephen held that the directors of a company could not submit their travel expenses for a tax deduction, on the authority of Cook v. Knott (2 T.C., 246).

Stephen held that where trustees had published a hymn book and given the profits to charity, the profits could not be exempted from income tax. While he admitted that it was most likely the intent of the legislature was to exempt charitable profits from taxation, the clear words of the statute did not accomplish such a goal. The statute provided exemption for yearly interest or annual payments, but not trade profits.

The judgment of Justices Stephen and Charles was delivered by the latter.