Reece, Appellant; Miller and Others, Respondents

Stephen concurred with Justice Grove, who held that where a river was not affected by tidal influence except during unusual occasions, the river could not be considered tidal so as to give the defendant the right to fish under the common law rule allowing the public the right to fish in navigable tidal waters. Stephen contended that the fact that the river was affected in “peculiar and exceptional circumstances” was not enough to make it a tidal river.

Stephen arrived at the same conclusion as Justice Manisty, albeit by different reasoning. The facts of the case are as following: the defendant had previously received a judgment against a third party, who had once been a partner of the plaintiff. In executing the judgment, the defendant’s solicitor told the sheriff that he believed the third party owned a share of the plaintiff’s brewery, and that the sheriff should seize some of the goods there. When the sheriff did this, the plaintiff claimed the goods as his exclusively, and an interpleader action showed this to be the case. The plaintiff then brought this action against the defendant for wrongful seizure of goods.

The first question was whether the defendant was liable for the actions of his solicitor; Stephen argued that he was, because “when a man puts his cause into the hands of a solicitor he authorizes the solicitor generally to act for him,” and that the solicitor had the authority to tell the sheriff which goods should be seized. However, the second question, whether the sheriff was actually told to take the goods, Stephen answered negatively, as it was the sheriff’s duty to discover who the goods belonged to, and that without clear proof of direction to the sheriff, the defendant could not be held liable.

Knight v. Abbott, Page, & Co.: 10 Q B D 11. November 10, 1882.

Stephen concurred with Justice Field, adding that while he did not know why the legislature would not allow the case at hand to be tried in the county court, they hadn’t conferred that power, and thus the case couldn’t be tried there.

In an appeal from an order refusing to order the inspection of documents, Stephen concurred with Justice Field, holding that the appeal should be dismissed. Stephen argued that the Court should not be influenced by the authority of Hutchinson v. Glover, 1 Q. B. D. 138, because the cases were sufficiently different. In the present case, the question was whether the Court could compel one man to produce another’s title-deeds (if the second man could not be joined to the action as a defendant) because he has joint possession, to which the defendant objected, and in the cited case, the defendant opposed the inspection on the grounds that the document was irrelevant, and not based on any principle of dual ownership.

Stephen concurred with Justice Field, holding that an obstruction which had been negligently placed in the roadway at an iron works, which caused an accident resulting in the death of an employee, was not a defect in the condition of the roadway as required by the Employers’ Liability Act of 1880, and thus the defendants were not liable. Stephen stressed that the term “defect in the condition of the way” should not be construed so widely as to include obstacles in the roadway.

Stephen concurred with Justice Field, holding that the privilege against self-incrimination includes the right to refrain from answering questions which have a tendency to criminate the defendant. He stressed that “the danger must be real and appreciable.” Finally, despite the fact that the defendant said the interrogatories “might” incriminate him (as opposed to “would likely”), Stephen declared that his answer was valid.

Stephen concurred with Justice Field in holding that the discretion which licensing justices receive under the Beerdealers’ Retail Licenses Act of 1882 to deny a license for the sale of beer to be consumed off the premises extends to renewal applications. Stephen pointed to the use of the word “shall” in the statute as representing the absolute power of the licensing justices’ discretion, and he reasoned that even a renewal application was subject to it.

Stephen concurred with Justice Field, albeit reluctantly, that in a case where a butcher had sold diseased meat to a customer, and when an inspector of nuisances examined it and found it to be diseased, the butcher could not be convicted under sections 116 or 117 of the Public Health Act, because the meat was not seized from the butcher as prescribed by the statute. Stephen argued that the statute made it clear that the exposure of the diseased meat and the condemnation by the inspector were a consecutive process.

In a case questioning the jurisdiction of the British court, Stephen concurred with Lord Coleridge and Justices Pollock and Lopes. The case involved bonds which were stolen from an England-bound merchant ship in a river at Rotterdam in the Netherlands. Stephen argued that the jurisdiction of the Admiralty of England extends to “where great ships go.”

Section 3 of the Vagrant Act Amendment Act prohibited citizens from gambling in “any street, road, highway, or other open and public place.” Stephen concurred with Lord Coleridge, holding that a railway carriage in transit constitutes a public place. Stephen based his judgment on the authority of Ex parte Freestone, 25 L. J. (M.C.) 121, in which he believed the Court would have answered the question in the same way. He also rejected the idea that the act of payment in order to board the railway carriage prohibited it from being considered “public”.

Stephen concurred with Lord Coleridge, who held that in order for an owner of an ox, who had strayed into a shop and destroyed the shopowner’s goods, to be liable for damages, there must be negligence involved. Stephen based his holding on the case of Goodwyn v. Cheveley, 28 L. J. (Ex.) 298, which stood for the proposition that “the owner of the cattle is not responsible without negligence when the injury is done to property adjoining the highway.” He refused to limit this exception to roads adjoining country fields.

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

According to the Salmon Fishery Acts, the limits of a river are defined by a certificate from the Secretary of State, and a river is defined as “such portion of any stream with its tributaries”. Until 1845 the Whittle Burn was a tributary of the Tyne River, but in that year a water company placed a dam across it which formed a series of reservoirs. Stephen concurred with Justice Field in holding that the reservoirs were not tributaries of the Tyne, although he noted that whether or not a body of water is a tributary depends on the circumstances of each case.

Stephen held that a nuisance is not necessarily one which is injurious to the public health, but can also be something that interferes with personal comfort. He used the words of the statute prohibiting public nuisances, “nuisance or injurious to health”, to show that a nuisance could be something other than injurious to health.

Stephen concurred with the majority, which held that where a tenant of a room vacates the place, the other tenants who inhabit the same household remain inhabitants of the dwelling-house, as opposed to becoming mere lodgers.

As the sole judge on the panel, Stephen held that the water authority which had properly installed a valve on the highway, which had protruded due to the wearing down of the highway, could be held liable for accidents caused by the protruding valve. He cited White v. Hindley (Law Rep 10 Q. B. 219) and Bathurst v. Macpherson (4 App. Cas. 256) as authority for this judgment, and stated that the water authority had the duty of making sure their valve would not become a public nuisance.

Stephen concurred with Lord Coleridge and Justice Field, but added that in interpreting the Elementary Education Act, the Court should act “with great delicacy and caution” in order to avoid inconvenience.

Stephen’s and Justice Field’s judgment was delivered by the latter.

The plaintiff brought a waggonette to the defendant to be sold and received a receipt from the latter upon which was printed “Subject to the conditions as exhibited upon the premises”. One of these conditions was that the defendant could sell any property which remained for more than a month unless all fees were paid. The defendant sold the plaintiff’s waggonette, and the plaintiff brought an action to recover the value of the waggonette, offering as justification that he didn’t read the receipt. Stephen delivered the opinion for Justices Hawkins, Watkin Williams, and himself, holding that the defendant had provided sufficient notice of the conditions of the contract. Stephen cited numerous contract cases to defend his judgment, including Lewis v. McKee, Law Rep. 4 Ex. 58, for the proposition that “upon the delivery by one of two contracting parties to the other of a written document stating the terms on which the party who produces it proposes to contract, the other party acts at his peril if he does not read it.” Furthermore, Zunz v. South Eastern Ry. Co., Law Rep. 4 Q. B. 539, was cited for the principle that “when a man takes a ticket with conditions on it, he must be presumed to know the contents of it and to be bound by them.” He also distinguished the present case from Henderson v. Stevenson, Law Rep. 2 H. L., Sc. 470, as the facts in the latter case were extremely “peculiar”, and also because the notice in the present case was printed on the face of the receipt and was obvious. In distinguishing the case from other cited authorities, Stephen maintained that “the importance to be attached and the effect to be given to a document of this nature must depend upon the character of the particular contract which it is alleged to constitute.” He argued that the contract in this case was such that the plaintiff should have made himself aware of the conditions of the contract.

Finally, Stephen analyzes the general rule (“[i]f the form is accepted without objection…this person is as a general rule bound by its contents, and his act amounts to an acceptance…) and its exceptions. The first exception is when the nature of the contract is such that the person accepting the document may reasonably assume that there are no terms on the document. The second is in cases of fraud, a third is when the document is misleading (without being fraudulent), and a fourth is when the conditions attached are unreasonable. Stephen concludes by pointing out that the present case could only possibly fall within the first exception, but as already explained, this particular contract cannot be considered an exception to the rule.

As a last matter, Stephen held that a new trial should not be granted, but that a verdict would be entered for the defendant, as no reasonable jury could find for the plaintiff considering the holding of the case, and that “the question is one of law and not of fact”, and thus, not for a jury to decide.

In an attempted murder case, Stephen concurred with the majority, holding that the defendant did not fall under section 14 or section 15 of the attempted murder statute because while he tried to shoot at the prosecutor, he did not actually fire any rounds.

Stephen concurred with Justice Manisty, holding that in an action against the defendant who acted as a member of a vestry after ceasing to be a vestryman, the judge below was in error for allowing the plaintiff to administer interrogatories. The plaintiff argued that the Judicature Acts changed the general rules of Order XXXI in regards to interrogatories. Stephen disagreed, arguing that “they have altered merely the practice, and not the law”, and “where the object of interrogatories is nothing but to make a man liable to a penalty, they cannot be administered at all.”

Stephen and Justice Day concurred with Justice Grove.

Stephen concurred with Lord Coleridge in holding that where a judgment had been entered against a defendant, the company who was to award him an annual pension could be bound to pay the plaintiff that part of the pension which had accrued. Stephen went on to distinguish this case from Gibson v. East India Co., 11 Q. B. D. 518, based on the fact that in the latter, the company was not contractually bound to pay the defendant, as was the company in the present case.

The defendants were being sued for putting on a play in a board room in a hospital without the consent of the copyright owner. Stephen concurred with Lord Coleridge in holding that the defendants were not liable. Stephen argued that the representation was not public, and that “all the elements of publicity were wanting – there being no profit, no general admission of the public, and the place being merely the board room of the hospital…” However he noted that there may be some examples of such a representation which would violate the act, if the purpose of putting on the free representation is to hurt the owner of the copyright. Thus, “the injury which would be done to the person who has the sole liberty of representation at a place of dramatic entertainment is an important consideration – perhaps the leading consideration.”

Stephen concurred with Lord Coleridge, holding that the defendants could be held liable under the Employers’ Liability Act of 1880, because there was a “defect in the condition” of the machinery as required by the Act, although the machine was not defective per se, but rather was being used to a purpose for which it was not fit.

Stephen and Justice Mathew concurred with Lord Coleridge.

Stephen concurred with Justice Mathew in holding that a court could not order a husband to pay more for the maintenance of his wife than the amount of relief granted to her by her guardians. Stephen argued that if the legislature had intended to force the husband to pay a greater sum than the guardians, they should have written it clearly into the statute. Furthermore, Stephen asserted that as the guardians are the parties who must apply for contribution, and not the wife, it is the guardians whose position should be contemplated, and, he said, “[t]hey can only be interested to the extent of the amount expended by them in relief given to the wife.”

Stephen concurred with Lord Coleridge. Order XXXIX, rule 6, provides that a new trial should not be granted based on the improper rejection of evidence unless the court believes that a serious wrong will be committed otherwise. The Court held that while many rules of Order XXXIX only apply to the High Court, rule 6 could apply to the county court as well. Stephen agreed with Lord Coleridge also that the rejection of the evidence, while improper, did not change the outcome of the case.

Stephen concurred with Lord Coleridge.

Stephen concurred with Justice Huddleston, holding that auditors who are appointed under the Companies Clauses Act of 1845 may employ accountants without the consent of their co-auditors.

Stephen concurred with Justice Huddleston.

Stephen concurred with Justice Mathew, albeit reluctantly, that where two defendants were charged with conspiracy, it was necessary that they both were convicted or both were acquitted. Stephen based his judgment on the authority of O’Connell v. The Queen, 11 Cl. & F., 155, pp. 236-237, and said that he did not believe the other cases cited to bear on the question at hand.

In a case of a father indicted for attempting to burn the body of his child, Stephen, as the lone judge on the panel, held that burning a dead body is not a misdemeanor unless it is a public nuisance. Stephen acknowledged that the law was silent on the burning of bodies, probably as a result of the Christian background of the country. However, although religious sentiment might have prevented many from wanting bodies burnt, Stephen denied that it was an absolute duty at law to bury a dead body, referencing the study of anatomy as an example. Furthermore, he denied that cases cited stood for the proposition that burning a dead body would be a violation of the law, as those cases did not directly involve the question of burning bodies. Stephen declared that as he was “unable to discover any authority for the proposition that it is a misdemeanor to burn a dead body”, he didn’t have the power to make it one. He later asserted that “nothing is a crime unless it is plainly forbidden by law”.

However, he did acknowledge that it might be a misdemeanor if it amounted to a public nuisance. He made it clear that in order to be a public nuisance, mere objection by some citizens was not sufficient, but rather that the practice would have to be “on plain, undeniable grounds, highly mischievous or grossly scandalous.” Furthermore, that is merely a necessary condition, not a sufficient one. Finally, he stated that simply because the act of burning bodies was offensive to religious sentiments, that alone did not make it illegal.
The Attorney General v. Birkbeck and Others: 12 Q B D 605. February 9, 1884.

The joint judgment of Stephen and Lord Coleridge was read by the latter.

An elected member of the House of Commons (the plaintiff) was excluded by the Serjeant-at-Arms who was acting in accordance with a House resolution. The plaintiff sued for an injunction preventing the Serjeant from obeying the resolution. Stephen concurred with Lord Coleridge and Justice Mathew, holding that the House resolution could not be interfered with by the Court, as it related to the internal management of the House of Commons. He cited Blackstone for the proposition that “whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.” 1 Com. 163. However, the plaintiff argued that the Parliamentary Oaths Act required him to take an oath, which contradicted the House resolution. Stephen said that “it would be indecent and improper to make the further supposition that the House of Commons deliberately and intentionally defies and breaks the statute-law.” Clearly, he argued, the House did not see a contradiction in their resolution. As it would be offensive and disrespectful to the House of Commons to be forced to defend their resolution, which related to internal affairs, in the Court, the resolution was deemed appropriate.

Finally, Stephen maintained that only the force which a private person could use to prevent a trespass could be used by the Serjeant-at-Arms, for a common crime cannot be made legal by the fact that it occurs in the House of Commons.
The Queen v. Brittleton and Bates: 12 Q B D 266. March 1, 1884.

Stephen, while not officially dissenting from the majority opinion, stated that he did not take the same view as the majority. This case involved the trial of a married woman along with another who were accused of larceny of the husband’s belongings. The husband was called as a witness against the wife, and the majority held that the testimony of the husband was improperly received, which Stephen disagreed with.

The executors of Louisa Icely’s will sued her bankers for the return of a bill of exchange, after the latter refused to deliver it until they received validity of the will. Stephen concurred with Justice Lopes, holding that the bankers were justified in refusing to deliver a large sum of money until the will was verified.

Stephen concurred with Lord Coleridge, holding that the first mortgagees to a wine and beerhouse could appeal the rejection of its license, although the tenant of the beerhouse objected to the appeal, as the mortgagees’ “pecuniary interest in the premises was immediately affected.”

A rural sanitary authority created a law making it an offense to keep pigs within fifty feet of a dwelling-house. Stephen concurred with Lord Coleridge that fifty feet was an unreasonable distance within which to prohibit the keeping of pigs, and thus that the by-law should be struck down.

Stephen concurred with Lord Coleridge and Justice Hawkins.

Stephen, along with Justices Grove, Field, and Smith, concurred with Lord Coleridge.