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SIR FREDERICK POLLOCK, BART., LL.D.,
CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD.
1 & 2 DOW-G. COOPER—16 EAST – 1, 2 (to p. 231) MAULE
& SELWYN — 4, 5 (to p. 301) TAUNTON - 3 CAMPBELL
PREFACE TO VOLUME XIV.
In the case of Dempster v. Cleghorn (pp. 102, 107) Lord Eldon, after discharging the “laborious but at the same time not altogether unentertaining duty” of looking through all the pleadings, was satisfied that “this game of golf was an useful exercise, and appeared to be a very favourite pastime in North Britain.” South Britain has now been led captive in the matter of golf; even among the learned professions one may hear talk of niblicks and mashies, and “those rugged names to our like mouths grow sleek.” It might be too curious to consider whether a custom to play golf could be supported in an English Court, say by a fiction that golf must have been played under some other name from time whereof memory is not. Another case which may be called a sporting one is Gilbert v. Sykes (p. 327), where a bet on Napoleon's life was held to be against public policy. It is pretty to see the Judges openly repenting that actions on wagers had ever been allowed at all. This was one of the mistakes of the Common Law which have had to be corrected by legislative patchwork. Happily the law went right on the question, still arguable in 1812, whether trespass or trover would lie against a corporation : Yarborough v. Bank of England, p. 272.
The practice of citing unpublished MS. reports was not extinct in 1815. We read in Sidney v. Miller (p. 250) how “the Lord Chancellor said he had not been able to find anything amongst his own manuscript cases, but he had been favoured by Mr. Eden with a manuscript note of Lord Northington's of what Lord Hardwicke said in Brown v. Jones.” The rule against hearsay evidence, which we may find luminously expounded by Sir James Mansfield in the Berkeley Peerage case (p. 796), was never applied, of course, to the Court's judicial knowledge of previous decisions.
Brisbane v. Dacres (p. 718) is a leading case on recovering back money paid by mistake. Hagedorn v. Bell (p. 497) is one of the minor oddities of the law of nations in time of war. It exhibits the free city of Hamburg, while under French occupation, in the curious position, as regards Great Britain, of a neutral by sufferance. The British Government would have been justified in treating the Hamburgers as enemies, but thought it better for the interests of British trade not to do so.
On p. 557 Bayley, J., utters one of those pithy reductions of a too clever argument to absurdity which now and again enliven the reports. “It is not possible to convert the landlord into a trespasser through the medium of a writ locked up in a drawer.”
The once leading case of Waugh v. Carver is reproduced as an appendix. The proper place for it would really be as a note to Cox v. Hickman, 8 H. L. C. 268 : but, as it will at best be some years before the Revised Reports can deal with the reported cases of 1860, we thought it fair to take an earlier occasion (see note on p. 475). On the rule of “holding out” what is said in Waugh v. Carver is still sound enough, though hardly required as authority.
We shall now deal with some matters of a supplementary and critical kind. In Clifford v. Brandon, 11 R. R. 731, 2 Camp. 358, the reporter states in a note (11 R. R. p. 741) that he has not been able to find any authentic account of the trial of several persons for a conspiracy against Macklin to hiss him off the stage. A correspondent obligingly points out to us that a report of the trial was published in 1775 (Brit. Mus. 6496, aa. 11: not in the library of Lincoln's Inn). The defendants were Leigh and others. Apparently it was for riot as well as conspiracy. See further Macklin's life in the Dictionary of National Biography. It is not now possible to say (nor worth inquiry) whether Lord Campbell did not know of this report or did not think it authentic.
Quite lately some cases have been judicially cited belonging to the period of the Revised Reports and not reproduced in them. We have not received any complaint as to these cases, but we have thought it only proper to re-examine them. The result has been that, although they are directly or indirectly cited or even discussed by the learned Judges, the citations and discussion are such as on the whole to show, in our opinion, rather that the cases are not of modern practical utility than that they
Marshall v. Critico, 9 East, 447, referred to by Wright, J., in Musurus Bey v. Gadban, '94, 1 Q. B. 533, 541, is so short that the simplest way is to reproduce it bodily for the