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Belted OF THE
ENGLISH COURTS OF COMMON LAW AND EQUITY,
FROM THE YEAR 1785,
AS ARE STILL OF PRACTICAL UTILITY.
SIR FREDERICK POLLOCK, Barr., D.C.L., LL.D.,
CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD.
LONDON: THE onlin
PREFACE TO VOLUME LIII.
The present volume consists of cases which were in the first instance omitted from the Revised Reports, but which it has now been decided to preserve. The most frequent and obvious reason for doing so has been recent judicial citation. References to these citations, with occasional further explanation, will be found noted at the beginning of the respective cases. Although there can be no doubt that it is now proper to reprint such cases for reference, the Editors must not be taken to admit that the original omission was always or necessarily wrong; it was in every case founded on the absence, at the time, of judicial or other apparently sufficient evidence that the omitted decision was still of practical utility.
Some cases have been restored on the representations of learned correspondents specially familiar with their subjectmatter (and by such representations we are always glad to be instructed) ; some for points of constitutional or international interest which may be strictly outside the declared scope of the Revised Reports, but which, on further reflection, we have thought it desirable to include; and a few because, though no longer likely to be cited or discussed in Court, they are useful as illustrations of elementary principles, and therefore still current in modern text-books. Bainbridge v. Firmstone, p. 234, is an example of this last class.
One Nisi Prius case, Wilkinson v. Coverdale, p. 256, was omitted in its place as being unimportant. We still think it so, but it has acquired a factitious importance in textbooks (probably through the citation in 1 Sm. L. C. 183, 10th ed., which gives the whole substance of it without special comment), and has been supposed to exemplify an “anomalous contract of gratuitous employment” (Anson, Law of Contract, 9th ed., p. 340). But the action, as stated in the report, was not assumpsit, or in any sense an action of contract; it was a special action on the case for negligence in the execution of a voluntary undertaking, This kind of action in tort is older than assumpsit, and in fact is one of the origins from which that form of action was developed. It lies for misfeasance in an undertaking already entered upon, but not for mere omission or non-feasance. If in Wilkinson v. Coverdale the defendant, having no reward or promise of reward, had done nothing at all, the plaintiff would have had no remedy. The distinction is correctly taken in the unreported ruling of Buller, J., relied on by Erskine in argument. As this argument was accepted by the Court without any express declaration of the law (so far as Espinasse's report tells us), we have thought it proper to reprint after Wilkinson v. Coverdale, at p. 257, a more authoritative decision of the same class, Gladwell v. Steggall, originally omitted because it added nothing in point of law to Pippin v. Sheppard, 25 R. R. 746. Here it is expressly pointed out that the action is ex delicto (by Tindal, C. J.),
neither brought on a contract nor founded on one" (by Bosanquet, J.). The conclusion of Wilkinson v. Coverdale raises a shade of doubt whether the nonsuit was right: but it would be idle to spend conjectural discussion on a Nisi Prius case, meagrely reported by a notoriously inaccurate reporter: see 5 R. R. 715. If such a case were really authority for anything, it might be used to illustrate the rule that omission to do something with which the defendant has charged himself by his previous course of action may amount to a misfeasance, just as non-disclosure of something a man was not otherwise bound to disclose may amount to falsehood when coupled with previous or simultaneous assertions.