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( 2 )



A SELECTION OF (TZ^Au^.

LEADING CASES IN THE

COMMON LAW.

Wtlj &otts.

BY

WALTER SHIRLEY SHIRLEY

7

BABRISTER-AT-LAW.

EIGHTH EDITION

BY

RICHARD WATSON, LL.B. (Lond.),

BARRISTJ.R-AT-LAW.
OF LINCOLN'S INN, AND NOBTH-E ASTERN CIRCUIT.



LONDON:

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1908.









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( Hi



PREFACE

TO THE EIGHTH EDITION.



This Work was originally put forward simply as a
Students' Manual — always remembering that a person
does not cease to be a student merely because he is called to
the Bar, or admitted a Solicitor.

The learned Author, in his preface to the first
edition, stated that his object was to bring together
and to elucidate the 150 cases of most general
importance in the Common Law.



n v



The unusual style in which the book was written was
adopted as likely to arrest the attention, aid the
memory, and make the study of the law less dry and
repulsive. "Moreover," said the Author, "now and
then, in the stating of a case, certain deviations from
strict accuracy may be discovered. For instance, I
have treated nearly every case as if at nisi prius ;
deeming it undesirable to confuse the student, and
withdraw his attention from the true point and effect
of the decision by appeals, rules for new trials, &c."

When the present Editor undertook the task of

preparing the fourth edition, he endeavoured by a

considerable modification of the style originally

a 2



iv PBEFACE TO THE EIGHTH EDITION.

adopted l»\ the Author, by a re-arrangemenj and
Borne alterations of the leading cases, and by revising
and in many cases re-writing the notes, and making a
large addition to the cases cited as illustrating fche
text, to increase the utility of the work as a book oj
reference for practitionerst without rendering it less
acceptable to the law student. That this course has
been fully approved seems evident from the constant
increase in the demand for the hook.

The Editor has again carefully revised the work,
re-writing some of the notes, and making such
alterations and additions to the cases as seemed
necessary or advisable.

Colls v. Home and Colonial Stores takes the place
of Yates v. Jack as the leading case on " Ancient
Lights."

The subject of workmen's rights to compensation
from their employers for personal injuries has been
omitted as being governed mainly by statute and not
by case law.

All cases of importance down to the end of 1907
bearing upon the subjects dealt with are, it is
believed, now included in the text, or referred to in
the notes.

RICHARD WATSON.

12, Piccadilly, Bradford

January, 1908.



LIST OF LEADING CASES.

— > —

PAGE

Acraman v. Morrice (as to when property passes on sale of goods) 341

Aldous v. Cornwell (alteration of written instruments) 415

Armory r. Delamirie (importance of possession as against wrong-doer) 562

Arnold v. Poole (corporations must generally contract under seal) 28

Ashby r. White (action always lies for infringement of a right) 455

Atchinson v. Baker (action for breach of promise of marriage) 435

Baldey v. Parker (contract for sale of a number of trifling articles

amounting in aggregate to value of £10, must be in writing) 140

Barwick v. English Joint Stock Bank (responsibility of principal for

fraud of agent) 62

Beaumont v. Reeve (mere moral consideration will not support promise) 172
Behn v. Burness (" now in port of Amsterdam " in charter party, held a

warranty) - ()iJ

Bickerdike v. Bollman (notice of dishonour sometimes unnecessary) ... 158

Birkmyr v. Darnell ("debt, default, or miscarriage'') 118

Blower v. Great Western Railway Company (animal's "proper

vice" excuses carrier) 318

Bowman v. Taylor (estoppels) ,; 47

Boydell r. Urummond (separate documents containing contract cannot

be connected by oral evidence) 130

Brice t. Bannister (assignment of chose in action) 394

Bunch >•. Great Western Railway Company (passengers' luggage) ... 329

Butterfield v. Forrester (contributory negligence of plaintiff

generally disentitles him to complain) -187

Calye's Case (as to the liabilities of innkeepers) 313

Capital and Counties Bank r. Henty (defamation) 573

Carter i\ Boehm (concealment of material fact vitiates policy of insur-
ance) 282

Chasemore r. Richards (damnum sine injurid not actionable) 455

Clarke v. Cuckfield Union (corporations can sometimes contract

without seal) 28

Clayton v. Blakey (effect of leases void under sects. 1 and 2 of Statute

of Frauds) 110

Coggs v. Bernard (bailments) 303



m LIST OF LEADING CASES.

I- 101

( n i.i. i\ r. Wright (a enl who bad exceeded authority in granting lease

taken to have warranted thai he had authority) 88

. i.i intern (illegal contracts) 188

Colls r. Home un> Colonial Stokes (ancient lights) 160

Cooke r. Oxlej (proposal can he retracted any time before acceptance) 3

i "WW r. Milbourne (atheistical contracts illegal) -Ml

. HlOKMAN ( pai i ieipai ion in profits not conclusive evidence of part-
nership) 8X

Cos -. Midland Counties Railway Company (implied authority of

ts) 51

( i:i pps '. Im i;iii:.\ (conditions of bringing actions against magistrates)... 593

Crosby . Wadsworth (growing grass " an interest in land ") 134

i i \ir.i ;b r. WANE (lesser sum cannot be pleaded in satisfaction of greater) 102

(in i.i: r. POWELL (as to when plaintiff can sue on r/ii (i n turn meruit") 296

DALBT '. India AM) London Life Insurance Company (life insurance

' a contract of indemnity merely) 271

Dalton r. Angus (right of support from neighbour's land) 629

DARRELL v. TlBBITTS (fire insurance contract of indemnity merely) 278

Davenport v. Thomson (undisclosed principals) <;'.'

DA VIES v. .Manx (contributory negligence does not disentitle if defendant
by reasonable care could have averted consequences of plaintiff's

gence) 488

Denton i\ Great Northern Railway Company (responsibility of

railway company for not running advertised train) 334

DlDSBURY v. Thomas (hearsay evidence) 615

DlGGLE r. HlGGS (wagering contracts void, and stake may be recovered

from stakeholder) 223

DOVASTON v. PAYNE (as to dedication and repair of highways) 627

DUMPOB v. SYMMS (waiver of forfeiture, &c.) 383

EGERTON i?. Brownlow (public policy) 183

Elmore v. Stone (acceptance under 4th section of Sale of Goods Act) ... 143

ELWES /•. Mawe (as to tenant's right to remove fixtures) 3*54

Fabric as i\ MOSTYN (as to torts committed and contracts made abroad,

but sued on here) 634

FINCH r. Brook (production, unless dispensed with, essential to valid

tender) 405

FLETCHER v. Rylands (liabilities of persons who bring dangerous sub-
stances on their lands) 468

GEORGE r. CLAGETT (set-off by purchasers from factors) 75

GOSS ''. NUGENT (written instrument cannot be varied, but mav be

waived by parol) 23!)



LIST OF LEADING CASES. vii

PAGE

Hadley v. Baxexdale (measure of damages in contract) 441

Harrison r. Bush (privileged communications) 579

Hebdox r. West (life insurance) 270

HlGHAM v. Ridgway (declarations contrary to interest of deceased

persons admissible evidence) 621

Hilbery r. Hattox (innocent intention no defence in action for wrong-
ful conversion of goods) 563

Hochster v. De La Tour (suing before day of performance has arrived 438

Hopkixs v. Taxqueray (warranty must be part of the contract of sale 255

Imperial Loax Co. v. Stone (contracts of lunatics) 23

Ixdermaur v. Dames (person on lawful business may maintain action

where trespasser or licensee could not) 494

Iroxs v. Smallpiece (delivery or deed necessary to gift) 370

Jolly v. Bees (private arrangement unknown to tradesmen between

husband and wife may disable latter from pledging former's credit)... 48

Joxes r. Just (warranty of quality sometimes implied) 259

Jord ax v. Norton (proposal must be accepted in terms) 9

Keech r. HALL (mortgagee may eject without notice tenant claiming
under lease from mortgagor granted after mortgage and behind mort-
gagee's back) 101

Kemble e. FARREX (sum described by parties as liquidated damages may

be only a penalty) 449

Kixgstox's Case, Duchess of (estoppels) 647

Lampleigh v. Brathwait (past consideration will support a promise if

moved bj r previous request) 169

Laxgridge v. Levy (privity sometimes necessary to action for tort) 590

Le Blaxche v. Loxdox axd North Westekx Railway Company
(lateness of trains ; when one party to a contract fails to fulfil his
part of it, the other may perform it for himself and send in his bill ;
but he must not perform it unreasonably or oppressively) 336

Lee v. Griffix (Sale of Goods Act as to goods not in esse) 150

Lickbarrow v. Mason (right of stoppage in transitu defeated by

negotiating bill of lading) 349

IiiMPUs v. London General Omnibus Company (master generally
responsible for torts of servant committed in course of employment

and within scope of authority) 512

Lister r. Perryman (malicious prosecution and false imprisonment) 596

Lopus v. Chandelor (warranties and representations) 252

Lowe v. Peers (contracts in restraint of marriage contrary to public

policy and void) 211

Lumley v. Gye (damage need not be legal and natural consequence of

tort) 606

Lynch v. Nurdin (children can be guilty of contributory negligence) ... 4 ( J1



d LIST OF LEADING CA8E8.



] V.I.



Ma. kinuon '■. Pbnbos (surveyor ofh nay be liable for misfeas-

nonfeasance) ''-' s

M N .,,^ 300TT (husband liable on wife's contracts on principles of

" ;

HXEBlon p. Hamptos (mone] paid under mistake of law, or by com-
pulsion of legal p ,canno1 generally be recovered) i::.

M iffi i b ■ . Mi i.i ii: (material alteration vitiates written instrument) H6

M, kiium \iiii;i: v. \i\an (defendant mulcted in damages in action of

,,„, cannol generally sue co-defendan1 for contribution) 608

Mu. 1. 1 i: r. Race (bank notes pass, like cash, on delivery) 153

Mitohbi ■-. Reynolds (contracts in total restraint of trade illegal) 201

M,, N i \,,i r. BENEDICT (husband not liable for goods not necessaries
ied to wife, unless affirmative proof of his having authorized

contract) "'

MORLEX '. A TTESBOROUGH (implied warranty of title) 257

MORLEX v. BlED (joint tenancy) 105

MOEBITT r. NORTH EasteBS RAILWAY Company (Carriers Act protects

carrier where goods are sent by mistake beyond their destination) ... 326

Moss /-. GALLIMOBE (mortgagee giving proper notice, entitle to rent due

from mortgagor's tenant admitted before the mortgage) I'd

Mountstei'HEX r. Lakeman (guaranty is collateral undertaking to

answer for another person who remains primarily liable) 118

Nepean r. Doe (when a man has not been heard of, by those who
naturally would have heard of him had he been alive, for seven years,
a presumption arises that he is dead) 643

NICHOLS c. MAESLAND (vis major may excuse what would otherwise be

an actionable tort) 468



PASLET r. Freeman (fraud and deceitful representations) 542

Paterson v. Gandasequi (as to when the seller of goods may sue the

undisclosed principal, and when he must stand or fall by the agent)... •'>'.)

PeABCE '-.Brooks (fornicatory contracts illegal) 193

Peek v. North Staffordshire Railway Company (as to what are

"just and reasonable "conditions within 17 & 18 Vict. c. 31, s. 7) 321

Peter v. Compton (the words " not to be performed " in sect. 4 of Statute

of Frauds mean " incapable of performance ") 138

Peters v. Fleming (" necessaries" for infants are those things which it

is reasonable they should have) 13

Pickard v. Sears (estoppels) 648

Pike v. Fitzgibbon (contracts of married women) 34

Poulton /•. London and South Western Railway Company (though
master is generally responsible for torts of servant committed in
course of duty, servant cannot be taken to have authority to do what
master could not have done himself) 513

Price v, Torrington (declarations in course of business of deceased per-
sons admissible evidence) '521



LIST OF LEADING CASES. ix

1 ,'.<JE

Quarman r. Burnett (person employing contractor not generally respon-
sible for contractor's negligence) 507

Readhead v. Midland Railway Company (carriers of passengers

bound to use the greatest care, but not insurers) 481

Keedie v. London and North Western Railway Company (the

liabilities of a person employing a contractor) 508

Rigge r. Bell (effect of leases void under sects. 1 and 2 of Statute of

Frauds) 109

Roe v. Tranmarr (construction of written agreements) 249

Roux v. Salvador (abandonment to underwriters) 281

Ryder v. Wombwell (" necessaries " for infants) 11

Scaramanga v. Stamp (deviation) 288

Scarfe r. Morgan (illegality of contracts made on Sunday; lien) 219

Scott v. Avery (illegality of contracts ousting jurisdiction of Law Courts) 196

Scott r. Shepherd (consequential damages) 475

Seaton v. Benedict (responsibility of husband on wife's contracts) 47

Semayne v. Gresham (every Englishman's house not his castle) 559

Sharp v. Powell (proximate cause) 476

Simpson v. Hartopp (goods privileged from distress) 354

Smith v. Marrable (implied warranty of fitness on letting furnished

house) 268

Smith v. Thackerah (right to support from neighbouring land) 529

Smout t: Ilberry (responsibility of husband on wife's contracts) 48

Soltau v. De Held (nuisances) 533

Spencer v. Clark (covenants running with the land) 387

Tanner v. Smart (acknowledgment saving the Statute of Limitations) ... 420

Tarling r. Baxter (when property passes on sale of goods) 341

Taylor v. Caldwell (impossible contracts) 234

Tempest v. Fitzgerald (acceptance under sect. 4 of Sale of Goods Act) 144

Terry v. Hutchinson (seduction) 538

Thomas v. Rhymney Railway Company (responsibility of company

issuing through ticket for accident happening off their line) 504

Thornborow v. Whitacre (adequacy of consideration not required) ... 163

Todd ». Flight (nuisances from ruinous premises) 520

Turner v. Mason (wrongful dismissal) 430

Twyne's Case (gifts defrauding creditors) 377

Tyrie v. Fletcher (return of premium) 286

Vaughan v. Tafp Vale Railway Company: (negligent keeping of fire) 524

Vaux v. Newman (trespass ab initio) 555



[LLsr OF LEADING casks.

PAOI

w \in / . \\ ai;i.i i ecs (consideration of guarantee) l- I

Waxjoh r. Cabveb | how far Bbaring in the profits is evidence of partner-
ship) 87

w i i i B ' . Ai'.u \n wis (tun amounting to Eelony) 585

\\" 1 1 1 1» ii i : i; v. Hall (alteration of terms between creditor and debtor

releases surety) i ||S

Whitoomb v. Wihi i n « ; (acknowledgments by joinl contractors) 427

Win 1 1 coBOSS Wibe Compaki v. Savill (average) 292

Wiggleswobtb v. Dallisom (evidence of custom to qualify written

colli tact) 244

W'iim'N r. Bbett (though gratuitous bailee is bound to slight diligence

only, lie must use special skill if he possesses it ) 303

Wood r. Leadbittee (mere licence is revocable a1 pleasure) 300



( xi )



TABLE OF STATUTES CITED.



A.D.

1285. 13 Ed. 1, c. 24 (Statute of Westminster, 2nd), 456.
1367. 51 Hen. 3, stat. 4 (Statute of Marlebridge), 361.
52 Hen. 3, c. 4 „ 557.

1381. 5 Eich. 2, stat. 1, e. S (Forcible Entry). 559.
1541. 32 Hen. 8, c. 34 (Conditions, &c. in leases), 388.
1555. 2 & 3 P. & M. c. 7 (Market-overt), 567.
1558. 1 Eliz. c. 2 (Act of Uniformity), 216.
1571. 13 Eliz. c. 5 (Fraud on creditors), 378, 380, 381.
1585. 27 Eliz. c. 4 (Fraudulent Conveyances), 382, 383.
1589. 31 Eliz. c. 6 (Simony). 21S.

c. 12 (Sale in Market overt), 567.
1605. 3 Jac. 1, c. 21 (Christianity), 216.
1619. 21 Jac. 1, c. 16 (Statute of Limitations), 425.
Iii77. 29 Car. 2, c. 3 (Statute of Frauds), 118, 124, 134, 138.

c. 7 (Lord's Day Act), 219, 221.
1690. 2 W. & M. sess. 1, c. 5, s. 3 (Distress for rent), 356.

s. 4 „ 362.

1696. 8&9 Wm. 3, c. 11, s. 8 „ 449.

1697. 9 & 10 Wm. 3, c. 30 (Christianity), 216.

1698. 10 & 11 Wm. 3, c. 17 (Lottery Act). 231.

1705. 3 &; 4 Anne, c. 9 (Assignment of promissory notes), 395.

1706. 4 & 5 Anne, c. 3 (Ambassadors), 424.

1708. 7 Anne, c. 12, s. 3 (Distress), 359, 424.

1709. 8 Anne, c. 14, ss. 6, 7 (Taxation), 363.

1730. 4 Geo. 2, c. 28, s. 1 (Tenants holding over), 117.
s. 5 „ 357.

1737. 11 Geo. 2, c. 19, s. 1 (Landlord and Tenant), 357, 363.
ss. 8, 9 „ 356.

s. 1U „ 363.

s. iS „ 117

s. 19 „ 557.

1743. 17 Geo. 2, c. 38, s. 8 (Illegal distress), 5 7.
1765. 6 Geo. 3, c. 53 (Oaths), 217.

1771. 12 Geo. 3, c. 73, s. 35 (Metropolitan buildings), 528.
1773. 14 Geo. 3, c. 48 (Life Insurance), 271, 273.
c. 78 (Accidental fire), 528.
s. 83 „ 279.



xii TABLE OF 8TATUTE8 CITED.

A. 1 1.

1781. 21 Geo. 3, c. 19 (Sunday observance), 221.

1796. 36 Geo. 3, c. 52, s. 7 (repealed by 35 & 36 v'ict. c. 63), 376.

1802. 12 Geo. 3, c. L19, 9. 2 | Lottery Acl >. 231, 232.

181 1. ."'I Geo. 3, c. 56 (Sculpture), 553.

1815. 55 Geo. 3, c. l'.M (Apothecaries Act), 17:;. 594.

[816. 56 Geo. 3, c. 50 | Distress), 359.

L822. 2 Geo. I. c. l I. b. 16 (Bread Act), 221.

Iv'l. I < te< ». I . c. 83 (Factors Acts), 79.

L826. H Geo. 1. c. 94 „ 7'.).

I^l'7. 7 & 8 Geo. I. c. 18 (Spring guns prohibition), 195.

c. 31 (Remedies against hundred), 5<>:s.

1829. 9 Geo. 1, c. 14, s. 1 (Lord Tenterden's Act), 420, 428, 543.

„ 19.

s. 7 „ 141.

c. 94 (Simony), 219.

1830. 11 Geo. 4 & 1 Wm. 4. c. 68 (Carriers Act), 322, 326.

1831. 1 & 2 Win. 4, c. 37 (Truck Act), 190.

1832. 2 & 3 Win. I, c. 71 (Prescription), 461, 463.

c. 72 (Remedies against hundred), 503.

1833. 3 & 1 Win. 4, c. 15, s. 1 (Copyright), 550, 553.

c. 27 (Limitation of actions), 427.

c. 42 „ 425, 460, 467.

s. 28 (Interest), 448.
c. 98, s. 6 (Tender of Bank of England notes), 407.

1835. 5 & 6 Win. 4, c. 50, s. 70 (Highways, nuisance), 4 ( J5, 501, 630.

1836. 6 & 7 Wni. 4, c. 37 (Bread), 221.

c. 71 (Recovery of tithe rentcharge), 176.
1840. 3 k-i Vict. c. 86 (Church Discipline Act). 218.

1842. 5 & 6 Vict. c. 39 (Factors Act), 79.

c. 45, ss. 2, 15, 20, 22, 23, 103, 104 (Copyright Act), 550, 551,

553, 554.
c. 97 (Distress), 362.

1843. 6 & 7 Vict. c. 40, ss. IS, 19 (Criminal law), 360.

1845. 8 & 9 Vict. c. 20, ss. 53, 54 (Railway Clauses Act), 595.

s. 68 ., 485.

ss. 103, 104 „ 520.

c. 76, s. 4 (Legacy duty), 376.
c. 106 (Leases by deed), 111, 112.
c. 109, ss. 3, 18 (Gaming Act), 224, 226, 227, 228.

1846. 9 & 10 Vict. c. 48 (Lottery), 233.

c. 93 (Lord Campbell's Act), 460, 486, 610.
s. 1 ., 589.

1847. 10 & 11 Vict. c. 15, s. 14 (Gasworks Clauses Act), 360.

c. 17 (Waterworks Clauses Act), 360.
1851. 14 .V 1-5 Vict. c. 25, s. 2 (Fixtures), 359.
c. 94 (Mining), 369.



TABLE OF STATUTES CITED. xiii

A.D.

1853. 16 & 17 Vict. c. 119 (Betting Houses Act), 228, 229, 231.



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