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

Stephen dissented, along with Justice Lush, from the majority of the Court, who held that a coin which was genuine but had been filed at the edges and whose filling had been removed was still considered a counterfeit. Stephen disagreed because the statute dealt with altering genuine coins but did not include the alteration involved in the present case, and he concluded that the defendant had merely “passed genuine coins which had been fraudulently dealt with, not false or counterfeit coins.”

Stephen concurred with Justice Kelly in holding that the “offensive trade of effluvia” is an offense even if it is not injurious to healthy people, if it makes sick persons worse. Stephen analyzed the words of the statute and interpreted them as saying that a nuisance which is not injurious to health is still covered by the statute. Even if it were required to show that the nuisance were injurious to the public health, Stephen maintained, the appellants would have succeeded in doing so, because injury to a sick person is still injury.

Section 54 of the Metropolis Local Management Act of 1855 stipulates that a member of a vestry of a parish who is declared bankrupt ceases to be a member, and if he should act as a member of the vestry upon being declared bankrupt he is liable to a penalty of 50 pounds. The question for the court was whether the accused was liable to the penalty, as he was only a part of the vestry due to his office of churchwarden. Stephen held that he was liable because he was a part of the vestry and voted in it, and thus it was perfectly clear that the statute applied to him regardless of the position that made him a vestryman.

Stephen concurred with the Court, holding that when a tenant ceased to occupy his room before the end of the renting period, and another takes the room, he is liable for only the percentage of the rent that corresponds to the amount of time he lived there; however, if there is no new tenant and the premises remain unoccupied, the old tenant is responsible for all of the rent. Stephen stated that the statute was not perfectly clear, but that his interpretation was that if the outgoing tenant could find no one to rent the room for the remainder of the renting period, he was still liable.

Stephen delivered the opinion for himself and Justice Kelly. The plaintiffs were suing the defendant for damages for trespass. The land owned by the parties had been covered in a grant to remain “a private carriage road and driftway for the use of the respective owners and occupiers for the time being of the allotment over which the same passes…” The defendants had built a cattle pen and used the road for the passage of the cattle to and from the highway, which the plaintiffs claimed was an unlawful use of the road, and that as the land was used for agricultural purposes at the time of the grant, it should remain thus. Stephen held that the defendant’s use of the roadway was not limited, and thus that the plaintiffs could not recover.

Stephen first distinguished the case of Allan v. Gomme, 11 Ad. & E. 759, cited for the plaintiff by maintaining that that particular case turned on the specific facts, and the specific grant, in that case, and that it did not establish a general rule that the land use should remain the same. He then distinguished Skull v. Glenister, 16 C.B. (N.S.) 81, by pointing out that “[t]o use a private road into one close merely in order to pass over it into an adjacent close is not quite the same thing as to use a private road into a close in order there to make use of a public highway carried through the close subsequently to the grant.” Furthermore, Stephen noted that the cases cited for the plaintiff were cases of prescriptions, whereas the present case was one of a grant made under an Inclosure Act, meaning that the owners are entitled to use the land as they see fit without restriction. Finally, Stephen cited cases in support of the Court’s decision for the proposition that one who takes land under an inclosure is not restricted to use the land for the purpose for which it was being used at the time of the inclosure.

Webb v. East: 5 Ex D 23. December 12, 1879.

Stephen concurred with Justice Kelly.

Stephen did not comment on this case, instead stating that he would not “interfere with the discretion exercised by the learned judge”, Justice Kelly.

Stephen concurred with the Court, which held that the conviction of a woman who received two or more lunatics in her house without being a registered asylum or hospital should stand, despite the fact that she reasonably believed that they were not lunatics. Stephen maintained that the words of the statute were meant to include “not only lunatic, but insane, and idiot, and a person of unsound mind…”

The Court held that the conviction of a prisoner for having administered a “noxious thing” (juniper oil) with the intent to procure a miscarriage in a women should be upheld, despite the fact that juniper oil is not always noxious, but the amount in question is. Stephen pointed to the authority of Reg. v. Hennah (13 Cox, C. C. 547) for the principle that “everything which is noxious is a ‘noxious thing’”, and thus that an amount of juniper oil which is noxious falls within the meaning of the statute.

A tenant was adjudicated a bankrupt, and the landlords sued the tenant and the trustees in bankruptcy for possession of the house, rent, and damages for non-repair. Stephen held that under the Bankruptcy Act of 1869, the leaseholds of the tenant vested in the trustees, and the covenants are binding on the trustees unless they make a valid disclaimer. He ruled that the trustees hadn’t made a disclaimer as required by section 23 of the Bankruptcy Act, as the disclaimer was signed by the trustees’ solicitors.

The defendant was convicted of assault on two police officers in the execution of their duties, but the police were acting on a warrant issued in Worcestershire, and they were apprehending him in Worcester. No justice of Worcester had backed the warrant, although it was backed by justices of Worcestershire. Stephen concurred with the Court that the conviction was wrong, because the police were not acting in the execution of their duty. He argued that the effect of section 76 of the Municipal Corporations Act is such that police officers may have increased local limits of their duties and they may obey their commands there if lawful, but it does not specify what conditions make the commands they receive lawful. He pointed to section 101 and Jervis’s Acts to point out that in order for the commands to be lawful, they must be backed or subject to one of the enumerated exception, which the current case was not.

Where the plaintiffs were compelled to amend their reply to a counterclaim of the defendants, Stephen concurred with Justice Kelly that the case could not be set for trial until the reply was amended and the pleadings were closed. Stephen acknowledged that there was discussion of another rule which was meant to prevent the defendant from improperly extending the proceedings, but he held that the rule should not be construed in such a manner, and that this interpretation was more consistent.

In this case, the plaintiff was suing 3 officers of a county court for having seized his goods under an execution issued from the same court (his brother had been the defendant in a previous action). At the same time, an interpleader summons had been issued, and this Court was asked to stay the proceedings of the plaintiff’s suit. Stephen, writing for himself and Justice Kelly, held that the second suit should be stayed over the plaintiff’s objection that the action did not concern goods in the authority of the county court, as required by the statute, because they had been sold. Stephen maintained that the sale of the goods did not exclude them from being considered under the court’s authority.

As the sole judge on the panel, Stephen found for the defendant in this contract case. The relevant facts are as follows: the deceased’s heir-at-law (the plaintiff) claimed the deceased’s farm against the possession of the defendant. The defendant maintained that she had a life estate in the farm in return for having served the deceased without wages for years. The defendant claimed that the deceased had promised to grant her the life estate in his will, and he executed a will to that effect, although it was void through a formality. The jury had decided that the promise made by the deceased had induced the defendant to serve him, and Stephen determined that the representation was thus a contract.

He came to this conclusion first by explaining that in order for a false representation to have legal consequences, it must fall into one of three categories: it may be a term of a contract, it may operate as an estoppel, or it may be a criminal offense. Stephen maintained that the representation was not one of the last two, so the question was whether it was a binding contract or a mere representation with no legal effect. He denied that a representation could be considered binding without being declared a contract. He argued that “whenever representations have been held to be binding, the circumstances were such as to shew that all the conditions of a valid contract had been fulfilled…” He then analyzed numerous cases to show that this was the case, and that in the cases where there was no binding representation, the court had suggested that there was no contract.

In the present case, the representation was binding because the defendant was induced to serve the deceased and forego wages by a promise. To the objection that there was no mutuality, and that the defendant could have left the service of the deceased, Stephen pointed out that in many cases consideration must be given completely on one side before the other party is obliged to act, and thus that the objection failed. Finally, while the contract related to land and thus made it subject to the Statute of Frauds, Stephen denied that this voided the contract because it was completely performed on the part of the defendant, and thus the doctrine of equity prevented the application of the Statute of Frauds from being applied.

Stephen concurred with Justice Huddleston.

Stephen concurred with Justice Huddleston in holding that as part of his discretion to deprive the winning party of court costs, the judge can examine the behavior of the party prior to the action in court. The present case was an action brought on a libel claim, and while the plaintiff was victorious, Stephen declared that in bringing the suit, he “brought the whole thing upon himself.”

Stephen concurred with the judgment of Justice Pollock. Section 4 of the Railway Companies Act of 1867 protected the rolling stock and plant of railways from being seized. The plaintiffs had ceased operations, and so the defendants argued that the Act no longer applied to them, and that the goods seized should not be returned. However, Stephen disagreed and stated that no part of the statute specified that a railway loses the protection of the statute after ceasing to run. While he agreed that there should be some limitation to the statute, he maintained that it was merely to add the words “so long as they continue the property of the company”, which he believed were implied in the statute. He further recognized the difficulty of regulating the rights of creditors and debtors when railways are involved, but pointed out that the legislature had sided with the debtors in such cases.

Stephen concurred with the Court in holding that a conviction of three men accused of manslaughter should be upheld. The men had fired a rifle in a field with numerous houses nearby and neglected to take any precautions before shooting, and one of the shots fired killed a young boy. Stephen argued that all three men had a duty to take proper precautions in the use of such a dangerous weapon under the circumstances, and thus all were responsible for the death.

Stephen concurred with Justice Hawkins. The case involved a motion to set aside the award granted in arbitration, filed on the second to last day of the term, which was denied because the defendant had not given notice to the plaintiff. The defendant then gave the plaintiff notice on the same day that they would move the Court to set aside the award three days later. The justices held that the motion should be heard because the application was a complaint within the meaning of Order LIII, and that as notice had been given the same day, it was sufficient. They used In re Corporation of Huddersfield and Jacomb as authority for this proposition, and Stephen stated that he had difficulty distinguishing that case from the present.

The Telegraph Acts of 1863 and 1869 stipulated that the Postmaster-General would exclusively transmit telegrams within the United Kingdom. Stephen read the judgment for both himself and Justice Pollock, holding that the telephone was a telegraph within the meaning of the Act, despite the fact that the telephone was not invented or even thought of before 1869. Furthermore, the Court held that the conversation on a telephone was a “message” or “communication transmitted by a telegraph” within the meaning of the Act, and as the company made a profit off the conversations, the conversations were an infringement of the exclusive right of the Postmaster-General to transmit telegrams, courtesy of section 4 of the Acts.

The defendants first argued that the communication over telephone was not a telegram, because a telephone and telegraph are substantially different apparatuses. However, Stephen rejected this contention and held that they were similar enough within the meaning of the Acts to warrant telephonic communications being covered by the Acts. The fact that the telephone was not invented at the time of passage of the Act was irrelevant, Stephen said, because surely the legislature intended to include future discoveries that were similar enough. Secondly, the defendants argued that the conversations were not “communication” or “messages” in the way required by the Acts. Stephen held that simply because the conversation was not written did not take it out of the Acts. Finally, the defendants argued that the case was one which fell into one of the exceptions of the Act. The exception “authorises individuals to keep telegraphs for their own use, and to send messages by them relating to their own affairs so long as no charge is made for the messages.” Stephen noted that not only did the company act as a go-between, but also that the service involved a fee, so that the exception did not apply to the telephone.

Eaton v. Basker and Others, and the Mayor, Aldermen, and Burgesses of the Borough of Grantham: 6 Q B D 201. December 20, 1880.

After an outbreak of scarlet fever, a committee was formed under sections 200 and 201 of the Public Health Act to provide hospitals for the sick. Section 200 prohibited the committee from entering into any contract. Nonetheless, the committee entered with a contract with a physician, Dr. Eaton, to attend to the sick at a rate of 5s. 3d. a tent per day. Eaton sued for the amount due, and Stephen, as the sole judge on the panel, held that he could not recover. He first noted that the defendants were not bound individually by the contract, and as section 200 prohibited the committee from entering into a contract as an entity, the committee could not be found liable.

Furthermore, Stephen declared that the corporation of Grantham was not liable because the contract was worth more than 50 pounds but was not under seal, as required by section 174 of the Public Health Act. Stephen first rejected the argument that that section did not apply to personal services contracts, as there was no limiting language in the section to suggest such an interpretation. Next, he refused to accept that the contract was subject to one of the exceptions to the common law rule requiring contracts worth over 50 pounds to be under seal. The first exception, for contracts entered into out of necessity, was said not to apply, as the legislature had made it clear that the line was 50 pounds. The second exception, in cases where the defendant has had the benefit of the contract, was also rejected, because Stephen pointed to the Court of Appeals’ contention that “the extent of the exception and its very existence are obscure and doubtful matters”. Stephen instead argued that the section created a “positive general rule” which was subject to no exceptions.

Finally, the plaintiff argued that the contract, when it was made, was not worth more than 50 pounds, but Stephen maintained that it became such a contract on the day that the wages to be paid amounted to that sum.

Stephen concurred with Justice Pollock.

Stephen had heard the case and sentenced the prisoner to 9 months hard labor but suspended the sentence till the Court of Crown Cases Reserved heard the case. After Lord Coleridge held that the prisoner’s conviction for forgery of an endorsement on a bill of exchange should be set aside (because the document was not a bill of exchange), Stephen concurred, but added that the prisoner should have been charged with a forgery at common law.

Stephen concurred with Justices Grove and Lindley, holding that where an occupier of a beerhouse has lost his license after being convicted of a felony, and where the owner of the premises applies for a temporary license, the licensing authorities shall have complete discretion to refuse the application, and furthermore that the applicant is not entitled to notification as to the objections raised with regard to his application.

Stephen concurred with Justices Grove and Lindley.

A man was charged with embezzlement, and the defendant, Strugnell, gave 100 pounds bail for his appearance. The accused gave the defendant 100 pounds as security, and then fled. Later, the accused was deemed a bankrupt, and his trustee in bankruptcy sued the defendant to recover the 100 pounds paid to him by the accused. Stephen held that the plaintiff could recover the money, because the 100 pounds was given as illegal consideration, and against public policy, and because the illegal purpose had not been fully carried out.

In an appeal from a conviction for unlawful and malicious infliction of grievous bodily harm, the court upheld the conviction, and Stephen added that the court recorded “put the case too favourably for the prisoner”, and further elaborated on the intent of the word “malicious”.

The defendant, a solicitor, was given money to invest in a mortgage, but instead kept the money for his own use. Stephen concurred with the Court, holding that the defendant was not entrusted with the money for “safe custody” as required by section 76 of the Larceny Act. Stephen noted that there was no evidence of any directions given to the defendant regarding what to do with the money between the time he received it and the time he was to invest it. However, unlike Lord Coleridge and Justice Denman, Stephen did not base his opinion on the authority of Reg. v. Cooper, Law Rep. 2 C. C. R. 123.

Stephen concurred with Lord Coleridge and Justice Denman, holding that the conviction of three men for having removed the property of one of them with the intent to defraud his creditors must be overturned. Stephen argued that while the first objection (that the statute did not apply because the man had not been deemed a bankrupt) failed, the conviction couldn’t be upheld because the men had tried to defraud just one creditor, not the group of creditors.

In an appeal from the defendants’ conviction for assault (where they witnessed a prize-fight but did not encourage the fighters), Stephen concurred with the majority that the conviction should be overturned. The majority argued that mere presence at a prizefight is not sufficient to amount to an assault. Stephen went on to comment on the nature of consent, stating that when one consents to being injured at the hands of another, it is no defense for the accused that consent was given. Furthermore, he added that the authority of Justice Littledale in Rex v. Murphy (6 C. & P. 103), who held that mere presence at a prizefight constituted an offense, was erroneous. He concluded by stressing that “in exercising the narrowly qualified power of quasi legislation which the very nature of our position confers upon us, we ought to confine ourselves as far as possible…to applying well-known principles and analogies to new combinations of facts…”, and that interpreting statutes to create new offenses should be kept to a minimum.

Stephen concurred with Justice Pollock.

Stephen concurred with the Court, holding that the defendant’s conviction for manslaughter of his son could not be upheld as it was unsure whether any medical treatment would have saved the boy. Stephen added that while the defendant might be convicted of parental neglect, the manslaughter conviction was unwarranted because it was not proven that the caused or accelerated the death.