ON THIS DAY in 1895, the Constitution (Female Suffrage) Act 1895 (SA) granted South Australian women (except for aboriginal women) the right to vote. SA was only the second jurisdiction in the world to do so following New Zealand (1893).
http://foundingdocs.gov.au/item-sdid-44.html
ON THIS DAY in 1894, the Parliament of the United Kingdom enacted the Sale of Goods Act 1893. New South Wales enacted its own Act in 1923.
ON 28 NOVEMBER 1893, the House of Lords delivered Browne v Dunn (1893) 6 R 67 (HL).
A party who cross-examines a witness must, out of fairness, “put it” to the witness any contradiction they suggest arises from their evidence in order to give them an opportunity to explain the contradiction.
Per Lord Herschell at 70-71:
“…it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and, then, when it is impossible for him to explain…to argue that he is a witness unworthy of credit.”
Sydney, Australia
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ON 19 SEPTEMBER 1893, New Zealand women were the first in the world to be granted the right to vote with the enactment of the Electoral Act 1893 (57 VICT 1893 No 18).
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ON THIS DAY in 1893, the Supreme Court of NSW delivered R v Makin [1893] NSWLawRp 28; (1893) 14 LR (NSW) 1 (30 March 1893).
http://www.austlii.edu.au/au/cases/nsw/NSWLawRp/1893/28.html
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ON 17 MARCH 1893 the Supreme Court of NSW delivered Ex parte Ogden [1893] NSWLawRp 22; (1893) 14 LR (NSW) 86.
Married women and aliens were considered to be under a disability that prevented them from voting in municipal elections.
http://www.austlii.edu.au/au/cases/nsw/NSWLawRp/1893/22.pdf
Sydney, Australia
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ON 7 DECEMBER 1892, the England and Wales Court of Appeal delivered Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1; [1893] 1 QB 256.
Carbolic Smoke Ball Company was the manufacturer of the Carbolic Smoke Ball which they claimed could prevent “influenza, colds, or any disease caused by taking cold…”.
Carbolic promoted the product with the following advertisement:
“100 pounds reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. 1,000 pounds is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter”.
On the strength of the advertisement, Carlill purchased the smoke ball, used it as directed but nevertheless caught the flue. She claimed the 100 pounds which Carlill refused to pay on the basis that there was no binding contract because the advertisement was a “mere puff” that meant nothing.
The Court of Appeal held that there was a binding contract.
Per Lindley LJ ((1893) 1 Q.B. 256, at p. 262): “…the person who makes the offer shows by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance, apart from notice of the performance.”
Sydney, Australia
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ON 21 JULY 1891, the House of Lords delivered Smith v Charles Baker & Sons [1891] UKHL 2 (21 July 1891).
http://www.bailii.org/uk/cases/UKHL/1891/2.html
The English Court of Appeal had held that a railway worker could not recover damages for his injuries because he had voluntarily assumed the risk (volenti non fit injuria).
On appeal, the House of Lords held that the worker was not barred from recovery by the mere fact that he continued to work with the knowledge of the risk or danger. Whether or not the worker has assented to the risk is a question of fact not law.
The House of Lords reversed the Court of Appeal decision, holding that there was no evidence to find that the worker consented to the particular risk that caused his injuries.
Sydney, Australia
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ON 3 APRIL 1889, the Privy Council delivered Cooper v Stuart [1889] UKPC 1 (03 April 1889).
The Privy Council said that New South Wales was “a tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions” rather than “a Colony acquired by conquest or cession, in which there is an established system of law”.
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ON 9 DECEMBER 1884, the Queens Bench Division of the High Court of Justice delivered R v Dudley and Stephens (1884) 14 QBD 273.
http://cyber.law.harvard.edu/eon/ei/elabs/majesty/stephens.html
In 1848, Sydney Barrister John Henry Want purchased an English 52 foot yacht, “The Mignonette”. Want arranged for the yacht to be sailed from England to Australia by Tom Dudley (Captain), Edwin Stephens, Edmund Brooks and Richard Parker.
On 18 May 1884, Mignonette set sail from Southampton to Sydney. On 5 July, somewhere near the Cape of Good Hope, the yacht was struck by a wave and sank. The crew abandoned ship to the lifeboat with only turnips and water.
On 29 July, the lifeboat was rescued by “The Montezuma”. The crew of the Montezuma discovered that Richard Parker had been eaten by Dudley, Stephens and Brooks. The survivors were taken to Falmouth, Cornwall, where they were interviewed about incident. Dudley and Stephens made statements to the effect that on about 25 July, Parker was close to death so they decided to kill him so they could, as well as eat his flesh, preserve his blood to drink. Brooks denied being party to the killing but admitted to eating part of Parker.
Dudley and Stephens justified their actions out of necessity to preserve their own lives. They maintained that this justification was an ancient custom of the high seas.
Dudley and Stephens were charged and tried. The matter ended up before the Queens Bench of the High Court in London.
Dudley and Stephens were convicted of murder. The court held that the law did not recognise a defence of necessity, either in precedent nor morality.
Per Lord Coleridge CJ:
“Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called ‘necessity’. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it…..”
“It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be ‘No’”
Dudley and Stephens were sentenced to death. In response to public pressure, the Government commuted the sentence to a 6 month term of imprisonment on the grounds that the trial court had withheld the verdict of manslaughter from the jury. Dudley and Stephens were released from prison on 20 May 1885.
John Henry Want later became the Attorney General for New South Wales from 1894 to 1899.
Sydney, Australia
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