Medical Law, Professional Liability, Property, Chancery & Commercial, Public Sector & Human Rights, Other Areas of Law
Bees, grouse, horses ... and a mad ox


Many of the posts on this blog are about cases at the cutting edge of jurisprudence. Quite rightly; it would be embarrassing to discover that a case you have relied on is no longer good law. Staying up-to-date is a necessary part of modern practice. A necessary evil, perhaps, when one considers the number and length of judgments that now spew forth from the courts.

It may be of some comfort to the busy practitioner that every so often a case stands the test of time and can be cited long after the parties who gave rise to it have shuffled off their mortal coils. I always take pleasure in the citation of authorities which are as quaint as they are antiquated. It may well be a curious fetish, but one of my happiest moments in court was being able to cite (with justification!) Wiffin v Kincard (1807) 2 Bos & PNR 471 which held there was no assault when a constable used his stick to attract the attention of someone who had climbed the fence of a gentleman to get a better view of a mad ox.

The other great attraction of old cases is that they tend to be a bit more colourful than modern ones. A Scottish lawyer of my acquaintance always delights in telling me that the law of contractual duress north of the border is founded on the case of Earl of Orkney v Vinfra (1606) Mor 16481. The facts are only too apparent from the report: “The Earl of Orkney summoned Vinfra into his presence, and with terrible countenance and words, and laying his hand upon his whinger [i.e. his dirk] he threatened with execrable oaths to relieve Vinfra of his life and stick him presently through the head with his whinger if he signed not”.

Even highway law can turn up some gems. In a recent “tripper” case I had to consider what constituted lawful use of the highway. In the course of my research I discovered that it is not a lawful use of the highway to stride to and fro disturbing a neighbour’s grouse shooting (Harrison v Duke of Rutland [1883] 1 QB 142); to spy on the form of horses training for race (Hickman v Maisey [1900] QB 752); or to sit on a wall by the side of a highway talking about bees (Liddle v North Riding of Yorkshire CC [1932] 2 KB 101). It is lawful, however, “to take a rest by a milepost in the manner of Dick Whittington” (Hickman again).

Does anyone else share my antiquarian affliction? Do you have a favourite old case; and what is the oldest case you have been able to cite? All contributions gratefully received!



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