Walter Shirley Shirley.

A selection of leading cases in the common law online

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AGENTS W ANTED.



(2)



A SELECTION OF



LEADING CASES IN THE



COMMON LAW



WITH NOTES.



FROM THE THIRD ENGLISH EDITION.



WALTER SHIRLEY SHIRLEY, M.P.
fit

BARRISTER- AT-LAW, OF THE INNER TEMPLE, AND NORTH-EASTERN CIRCUIT ; A0THORcOK'

"A SKETCH OF THE CRIMINAL LAW," "AN ELEMENTARY TREATISE ON

MAGISTERIAL LAW," ETC.



PHILADELPHIA :

THE BLACKSTONE PUBLISHING COMPANY.

1888.



Entered according to the Acts of Congress, in the year 1888, by the Ei.ack-

stone Publishing Company, in the office of the Librarian of

Congress, at Washington, D. C.

r



NOTE.

We suggest to our patrons that, to facilitate the labor of the
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our SERIES, and add [TEXT BOOK SERIES.]— Editor.



740SOR



PREFACE TO THE THIRD EDITION.



This edition has been prepared for the press with the greatest
care. Although no revolutionary changes have been introduced,
I have gone scrupulously through the whole book, not only tinker
ing and touching up the notes where required, but rewriting a
great deal; and, as the result, I cannot doubt that, if the book has
been useful before, it is likely to be far more so now. The tone of
flippancy and jocularity, modified to some extent in the second edi-
tion, has been almost discarded in this, so that the serious and
soberminded law student, who never can understand a joke, will
find little or nothing to distract his attention from the particular
rule or doctrine of law under consideration.

I have only to add the expression of my own personal gratifica-
tion at the continued and increasing popularity of this collection
of Leading Cases. In every part of England it is my pleasure to
meet young men who tell me that they have learnt all the law they
know out of my book, and that w r hat they have learnt out of it they
do not forget. It is a considerable source of pride and satisfaction
to me to be enabled in this way to assist the studies of the younger
members of my profession.



vi PREFACE TO THE THIRD EDITION.

I have to thank my learned friends of the Inner Temple, Messrs.

C. M. Atkinson, E. H. Benn, George Elliott, and A. C. Travis, for

valuable assistance rendered in the preparation of this edition for

the press.

W. S. S.

2, Dr. Johnson's Buildings,
The Temple, E.G.,

June. 1886.



PREFACE TO THE SECOND EDITION.



The favorable reception given by Law Students and the
younger members of the Profession to the appearance of this
collection of Leading Cases has enabled me, within a com-
paratively short period, to correct any ascertainable errors of
the first edition, incorporate the recent changes in the law, re
write some of the notes, and, I trust, improve the book in its
form and arrangement.

It will be seen that (in spite of a good deal of sharp, though
not unkind, criticism) I have not thought proper altogether to
discard, though I have somewhat modified, the free style which
makes the book sui generis. The same reasons which induced
me to adopt it apply to its retention ; and it would be hazardous
to kick away the ladder by which the book has climbed thus far
into popularity. Possibly, however, it may some day be found
convenient to publish tico separate editions of this treatise ; — a
larger and more comprehensive work for practitioners, and a
smaller and more elementary one for students ; and in that case
everything in the shape of levity would, of course, be eliminated
from the former.

In the meantime, I ask my graver readers, if they find the
book sound in law, to condone the style for the sake of their less
serious brethren. For I have received many assurances from
Students, whom the book has helped to pass their examinations
with credit, that the lightness of style has been the means of
fixing legal principles firmly in their memories, and of giving



Vlll PREFACE TO THE SECOND EDITION.

them a relish for the study of law, in a way that other books
failed to do ; and it is idle therefore to cavil at mere freedom of
expression.

I have to thank my friends of the Inner Temple, Mr. C. M.
Atkinson, Mr. George Elliott, and Mr. C. S. Hunter, and my
Cousin, Mr. Shirley Blackburne, for kind assistance given me in
the preparation of this edition for the press.

W. S. S.

6, Royal Crescent, Scarborough,
February, 1883.



PREFACE TO THE FIRST EDITION.



The work now submitted to law students differs considerably from
other collections of leading cases.

In the first place, the number of cases is much larger. " Fifty
or sixty leading cases," says the late Mr. Samuel Warren, " thor-
oughly understood and distinctly recollected, will be found of in-
calculable value in practice; serving as so many sure landmarks
placed upon the trackless wilds of law. And why should not the
number be doubled f or even trebled f What pains can be too great
to secure such a result?"

My object has been to bring together and to elucidate the 150
cases of most general importance in the Common Law. And, how-
ever far short of that object I may have fallen, I think it will be
admitted that any student whose diligence enables him to master
their names and principles will have laid for himself a good founda-
tion of legal learning.

The present work differs also in style. I have adopted it as likely
to arrest the attention, aid the memory, and make the study of the
law less dry and repulsive.

" That I have written in a semi-humorous vein," says an eminent
authority, "shall need no apology, if thereby sound teaching wins
a hearing from the million. There is no particular virtue in being
seriously unreadable."

Moreover, now and then, in the stating of a case certain devia-
tions from strict accuracy may be discovered. Such deviations
(except, of course, where I may have been unfortunate enough to
fall into errors) have been made on the "reading made easy"
principle. For instance, I have treated nearly every case as if at



X PREFACE TO THE FIRST EDITION.

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. And the pleasing, if some-
what rare, spectacle is accordingly, presented of a successful liti-
gant getting the speedy justice he is entitled to.

It will be observed, too, that though the volume in which a case
may be found is always given, the page is not. My explanation of
this unusual proceeding is that I regard it of extreme importance
that a practitioner should have at command the exact volume in
which a leading case is to be found. To remember the exact page
also, would be knowledge too excellent and unattainable; a Macau-
ley or a Fuller might achieve it, but not an ordinary person But
by constantly seeing the reference, and taking a kind of mental
photograph of it, a student of average memory ought in a short
time to find that he knows exactly where an important case is re-
ported.

It is almost unnecessary to add that the work is put forward
simply as a Student's 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. One of my objects (though, of course, not
the chief one) has been to act as a guide to that masterly and ex-
haustive work, Smith's Leading Cases. I have adopted nearly all
the cases which appear as leading cases in that collection, and have
sometimes even followed the lines of the notes.

I gratefully acknowledge help and valuable suggestions from
other members of the profession, and particularly from my learned
friends, Mr. C. M. Atkinson, of the Inner Temple and North-
Eastern Circuit, and Mr. Wilfred Allen, of the Inner Temple; and
trust my Leading Cases will prove useful to those for whom they
are intended.

W. S. S.

2, Dr. Jonxsox's Buildings,
3Iarch, 1880.



LIST OF LEADING CASES.



PAGE

Acraman v. Moeeice, (as to when property passes on sale of goods) . . 202

ALDOUS v. CORNWELL, (alteration of written instruments) 158

Armory v. Delamieie, (importance of possession against wrong-doer) . 32!)

Arnold v. Poole, (corporations must generally contract under seal) . 17b'

Ashby v. White, (action always lies for infringement of a right) . . . 247

Atchinson v. Baker, (action for breach of promise of marriage) . . . 207
Baldly v. Parker, (contract for sale of a number of trifling articles

amounting in aggregate to value of £10, must be in writing) . . 2G

Baxter v. Portsmouth, (lunatic may sometimes contract) 174

Beaumont v. Reeve, (mere moral consideration will not support prom-
ise) 7

Behn v. Burness, ("now in port of Amsterdam " in charter-party,

held a warranty) 16!)

Bergheim v. Great Eastern Railway Company, (railway company
not responsible for luggage in traveling compartment under trav-
eller's own control) 59

Bickerdike v. Bollman, (notice of dishonour sometimes unnecessary) 154

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

vice" excuses carrier) 51

Boydell v. Drummond, (separate documents containing contract can-
not be connected by oral evidence) 32

Brice v. Bannister, (assignment of chose in action) 225

Burkmire v. Darnell, ("debt, default, or miscarriage ") 12

Butterfield v. Forrester, (contributory negligence of plaintiff gen-
erally disentitles him to complain) 268

Calye'sCase, (as to the liabilities of innkeepers) 47

Capital and Counties Bank v. Henty, (defamation) 335

Carter v. Boehm, (concealment of material fact vitiates policy of insur-
ance) 187

Chasemore v. Richards, (damnum sine injuria not actionable) .... 247



Xll LIST OF LEADING CASES.

PAGE

CLARKE ». Cuckfield Union, (corporations can sometimes contract

without seal) 170

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

of Frauds) 100

Coggs v. Bernard, (bailments; 48 -

COLLEN r. WEIGHT, (agent who had exceeded authority in granting

lease taken to have warranted that lie had authority) 88

Collins v. Blantern, (illegality) 122

COOKE ». Oxley. (proposal can be retracted any time before acceptance) 8

Corn foot v Fowke, (liability of principal for representations of agent) 77

Cowan ». Milboubne, (atheistical contracts illegal) 136

Cox v. Hickman, (participation in profits not conclusive evidence of

partnership) iy7

Cox v. Midland Railway Company, (implied authority of agents) 74

Crepps v. Durden, (conditions of bringing actions against magistrates) 348

Ceosby v. "Wads woeth, (growing grass " an interest in land ") . . . 23

Cumber v. Wane, (lesser sum cannot be pleaded in satisfaction of great-
er) r 298

Cutter v. Powell, (as to when plaintiff can sue on quantum meruit) 223
Dalby v. India and London Life Insurance Company, (life insur-
ance is not a contract of indemnity merely) 181

DAREELL v. TlBBETTS, (fire insurance contract of indemnity merely) . 184

DAVENPOET v. Thompson, (undisclosed principals) 80

DA VIES r. Mann, (contributory negligence does not disentitle if defend
ant by reasonable care could have averted consequences of plain-
tiff's negligence). 269

Denton v. Great Northern Railway Company, (responsibility of

railway company for not running advertised train) 63

DlDSBUEY v. THOMAS, (hearsay evidence) 363

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

from stakeholder) • Ill

DOVASTON v. Payne, (as to dedication and repair of highways) .... :;7!»

Dumpoe v. Symms, (waiver of forfeiture, &c.) 103

Egeeton v. Brown low, (public policy) 120

Elmore v. Stone, (acceptance under 17th section of Statute of Frauds) 27

Elwes v. Ma we, (as to tenant's right to remove fixtures) 97

FABRIGAS v. MOSTYN, (as to torts committed and contracts made abroad,

but sued on here) 384

Finch v. Brook, (production, unless dispensed with, essential to valid

tender) 235

Fletcher c. Rylands, (liabilities of persons who bring dangerous sub-
stances on their lands) .....' 254



LIST OF LEADING CASES. xiii

PAGE

George v. Clagett, (set-off by purchasers from factors) - I

Goss r. Nugent, (written instrument cannot be varied, but maybe waived,

by parol) :;4

HADLEY v. Baxkxdale. (measure of damages in contract) 239

Harrison v. Bush, (privileged communications) 338

Hebdo.v f. West, (life insurance) 186

Hicham r. RlDGWAY, (declarations contrary to interest of deceased per-
sons admissible evidence) :;i;<)

HlLBERY v. Hatton, (innocent intention no defence in action for wrong-
ful conversion of goods) 332

HocHSTEE 1: De la Tour, (suing before day of performance has arrived) 213
Hopkins v. Tanqueray, (warranty must be part of the contract of sale) 163

Ixdermaur v. DAMES, (person on lawful business may maintain action

where trespasser or licensee could not) 27.~>

»
Irons v. Smallpiece, (delivery or deed necessary to gift) :J7:'>

Jolly v. Rees, (private arrangement unknown to tradesmen between hus-
band and wife may disable latter from pledging former's credit) . 71

Jones v. Just, (warranty of quality sometimes implied) 166

Jordan 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
mortgagee's back) 106

KEMBLE v. Farren, (sum described by parties as liquidated damages may

be only a penalty) 244

Kingston, R. v. Duchess of, (estoppels) ::<)!)

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

moved by previous request) 4

Langridge v. Levy, (privity sometimes necessary to action for tort) . .315

Le Blanche v. London & North Western Railway Company, (late-
ness of trains; when one party to a contract fails to fulfill 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) 64

Lee v. Griffin, (Lord Tenterden's Act as to goods not in esse) 30

Lickbarrow v. Mason, (right of stoppage in transitu defeated by nego-
tiating bill of lading) '. . . '201

Limpus v. London General Omnibus Company, (master generally re-
sponsible for torts of servant committed in course of employment
and within scope of authority) 293

Lopus v. Chandelor, (warranties and representations) 160



XIV LIST OF LEADING CASES.

PAGE

LOWE v. Peers, (contracts in restraint of marriage contrary to public pol-
icy and void) 133

Lr.MLEY v. Gye, (damage need not be legal and natural consequence of

tort) 359

Lynch v. Nurdin, (children can be guilty of contributory negligence) . . 273

MACKINNON v. Penson, (surveyor of highways may be liable for mis-
feasance, but not for non-feasance) 279

Manby v. Scott, (husband liable on wife's contracts on principles of

agency) G9

Marriott v. Hampton, (money paid under mistake of law, or by compul-
sion of legal proceedings, cannot generally be recovered) 209

Master v. Miller, (material alteration vitiates written instrument) . . 1.77

Mellors v. Shaw, (master employing incompetent workmen, or using de-
fective machinery, may be. responsible to servant hurt thereby in
course of service) 282

Merryweather v. NlXAN, (defendant mulcted in damages in action of

tort cannot sue co-defenddfet for contribution) 358

Miller v. Race, (bank-notes pass, like cash, on delivery) 150

Mitchel v. Reynolds, (contracts in total restraint of trade illegal) . . . 131

Montagu v. Benedict, (husband not liable for goods not necessaries sup-
plied to wife, unless affirmative proof of his having authorised con-
tract) 09

Morley r. Attencorough, (implied warranty of title) 1G4

Morley r. Bird, (joint tenancy) 116

Morritt v. North-Eastern Railway Company, (Carriers Act protects

carrier where goods are sent by mistake beyond their destination) . 56

Moss v. Gallimore, (mortgagee giving proper notice, entitled to rent due

from mortgagor's tenant admitted before the mortgage) 106

Mountstephen v. LAKEMAN, (guaranty is collateral undertaking to an-
swer for another person who remains primarily liable) 13

Nepean v. Doe, (when a man has not been heard of, by those who natur-
ally would have heard of him had he been alive, for seven years, a
presumption arises that be is dead)- 397

Nichols v. Marsland, (vis major may excuse what would otherwise be

an actionable tort) 254

Pasley v. Freeman, (fraud and deceitful representations) 312

Paterson »>. Gandasequi, (as to when the seller of goods may sue the

undisclosed principal, and when he must stand or fall by the agent) 79

Pearce r. Brooks, (fornicatory contracts illegal) 126

Peek p. North Staffordshire Railway Company, (as to what are

"just and reasonable" conditions within 17 & 18 Vict. c. 31, s. 7) . 52

Perryman v. Lister, (the action for malicious prosecution) 352



LIST OF LEADING CASES. XV

PAGE

Peter v. Compton, (the words " not to be performed " insect. 4 of Statute

of Frauds mean "incapable of performance ") 25

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

is reasonable that they should have") 171

Poulton v. London and South-Western Railway Company, (though
master is generally responsible for torts of servants committed in
course of duty, servant cannot be taken to have authority to do
what master could not have done himself ) 294

Price v. Torrington, (declarations in course of business of deceased

persons admissible evidence) 309

Priestley v. Fowler, (master not generally responsible to servant for

hurt sustained in service) 282



Quarman v. Burnett (person employing contractor not generally re-
sponsible for contractor's negligence) 290



Readhead v. Midland Railway Company, (carriers of passengers

bound to use the greatest care, but not insurers) 263

Reedie v. London and North-Western Railway Company, (the

liabilities of a person employing a contractor) 291

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

Frauds) 100

Roberts v. Orchard, (notice of action) 350

Roe v. Tranmarr, (construction of written agreements) 237

Roux v. Salvador, (abandonment to underwriters) 189

Ryder v. Wombwell ("necessaries" for infants) 171

Scaramanga v. Stamp, (deviation) 192

Scarfe v. Morgan, (illegality of contracts made on Sunday ; lien) . . 141

Scott v. Avery, (illegality of contracts ousting jurisdiction of Law Courts) 128

Scott v. Shepherd, ( consequential damages) 259

Seaton v. Benedict, (responsibility of husband on wife's contracts) . 70

Semayne v. Gresham, (every Englishman's house not his castle) . . . 325

Sharp v. Powell (proximate cause) 260

Simpson v. Hartopp, (goods privileged from distress) 92

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

house) 114

Smith v. Thackerah, (right to support from neighbouring land) . . . 303

Smout v. Ilberry, (responsibility of husband on wife's contracts) . . 71

Soltau v. De Held, (nuisances) 306

Spencer v. Clark, (covenants running with the land) 110



XVi LIST OF LEADING CASES.

PAGE

Tanner v. Smart, (acknowledgement saving the Statute of Limiations) 228

TABLING v. Baxter, (when property passes on sale of goods) 201

Taylor v. Caldwell, (impossible contracts) 147

TEMPEST v. Fizgerald, ( acceptance under 29 Car. II. c. 3, s. 17) ... 28

Terry v. Hutchinson, (seduction) 309

Thomas v. Rhymney Railway Company, (responsibility of company

issuing through ticket for accident happening off their line) . . . 287

TiioKNBOROW v. Whitacre, (adequacy of consideration not required; . 1

Todd v. Flight, (nuisances from ruinous premises) 298

Turner v. Mason, (wrongful dismissal) 214

TWYNE'S CASE, (gifts defrauding creditors) 219

Tvrie v. Fletcher, (return of premium) 190

Vaughan v. Taff Vale Railway Company, (negligent keeping of fire) 300

Vatjx v. Newman, (trespass ab initio) 322

Wain v. Warlters, (consideration of guaranty) 10

Waite v. North-Eastern Railway Company, (contrihutary negli-
gence ; identification) 271

WAUGH r. Carver, (how far sharing in the profits is evidence of part-
nership) 190

Wells v. Abrahams, (tort amounting to felony) 341

WENMAN ». Ash, (husband and wife two persons for some purposes) . 390
Whitcher v. Hall, (alteration oi terms between creditor and debtor

releases surety) 18

Wiiitcombe v. Whiting, (acknowledgements by joint contractors) . . 231

White Cross Wire Company v. Savill, (average) 194

WlGGLESWORTH v. Dallison, (evidence of custom to qualify written

contract) 38

Wilson v. Brett, (though gratuitous bailee is bound to slight dilgence

only, he must use special skill if he possesses it) 41

Wood r. Leadbitter, (mere licence is revocable at pleasure) 118

Yates v. Jack, (ancient lights) 250

Young v. Grote, (estopped by negligence) 400



SHIRLEY'S LEADING CASES.



CONTRACTS.

1. Thornborow v. Whitacre. — Consideration need not he adequate.

2. Lampleigh v. Brathwait. — Past consideration sometimes sufficient.

3. Beaumont v. Eeeve. — Past seduction no consideration.

4. Cooke v. Oxley. — Proposal not binding before acceptance.

5. Jordan v. Norton. — Parties must contract ad idem.

6. Burkmire v. Darnell. \ Person for whom any one is surety is

7. Mountstephen v. Lakeman. j himself primarily liable.

8. Wain v. Warlters. — Consideration of guarantee must exist but need not

appear in document.

9. Whitcher v. Hall. — Alteration of terms between creditor aud debtor

releases surety.

10. Crosby v. Wadsworth. — Growing grass an '' interest in land."

11. Peter v. Compton. — " Not to be performed " = incapable of performance.

12. Baldey v. Parker. — If total comes to £10, within 17th sect.

13. Elmore v. Stone. \ Acceptance under 17th sect, may be construc-

14. Tempest v. Fitzgerald, j tive.

15. Lee v. Griffin. — Goods to be made or delivered at future time brought

within Statute of Frauds by Lord Tenterden's Act.

16. Boydell v. Drtjmmond. — Separate documents containing contract can-

not be connected by oral evidence.

17. Goss v. Nugent. — Written instrument cannot be varied by parol evidence.

18. Wigglesworth v. Dallison. — In contractis tacite insunt quse sunt moris et

consuetudinis.

19. Coggs v. Bernard. \ Gratuitous bailees responsible for gross negligence.

20. Wilson v. Brett, j Person having skill must use it.

21. Calye's Case. — Liabilities of innkeepers at common law and under Act

of 1862.

22. Blower v. G. W. Ey. Co. — Animal's "proper vice" excuses carrier.



Online LibraryWalter Shirley ShirleyA selection of leading cases in the common law → online text (page 1 of 51)