Contracts for Cotton to Arrive: The Case of the Two Ships Peerless
![handle is hein.journals/cdozo11 and id is 301 raw text is: CONTRACTS FOR COTTON TO ARRIVE: THE
CASE OF THE TWO SHIPS PEERLESS
A. W. Brian Simpson*
Some leading cases only achieve their special status posthu-
mously, and Raffles v. WichelhausI is a striking example. It was de-
cided by the Court of Exchequer on January 20, 1864, and the judges
who heard the case, Chief Baron Pollock and Barons Martin and Pig-
ott, thought the solution to the problem presented to them to be so
obvious that they gave judgment for the defendants without troubling
to give any reasons for their decision. Indeed, they cut short the argu-
ment of defendants' counsel, George Mellish Q.C.2 and Arthur Co-
hen,3 thinking it unnecessary to hear them complete it.4 The case was
reported by Edwin T. Hurlstone and Francis J. Coltman,' and by the
Law Journal,6 perhaps because of the curiosity of the facts; otherwise
it seems to have caused no immediate ripples in the contemporary
legal world.
Since 1868 the case has been under continuous discussion, and it
has come to be one of the best known old chestnuts of the common
law. Perhaps the best known modern discussion is that of Grant Gil-
more in The Death of Contract.7 No student of the law of contract
* Charles F. and Edith J. Clyne Professor of Law, University of Michigan Law School
The case of Raffles v. Wichelhaus is reported in 2 H.& C. 906, 159 Eng. Rep. 375 (Ex.
1864); and in 33 L.J.N.S. 160 (Ex. 1864). The second report is clearer and gives marginally
more information. The Public Record Office in London [hereinafter PRO] does not possess
the papers relating to it, unless they are misplaced; I have checked PRO E13/1419-1422. At
this period such records only survive for a very few cases. The entry book of judgments, PRO
IND 4375 (Hilary term 1864) at n. 52, notes the case as down for hearing on January 22,
records the names of the parties as Winter Raffles, Daniel Wichelhaus and Gustav Busch, and
notes the attorneys as Field and Co. Judicial notebooks of Chief Baron Pollock survive, but
not after 1858. I have not found a useful newspaper account.
2 George Mellish (1814-1877) was a graduate of University College, Oxford and a barris-
ter of the Inner Temple. He became Queen's Counsel in 1861, and a Lord Justice of Appeal in
1870. At the time he was the leader. of the Northern Circuit, that is the leading barrister on
the Assize Circuit which embraced Liverpool. 13 Dictionary of National Biography 220-21
(G. Smith'& S. Lee eds. 1963-64).
3 Arthur Cohen (1829-1914) was the first professing Jew to graduate from Cambridge
University. He was also of the Inner Temple and became Queen's Counsel in 1874. In 1881,
when he was a member of Parliament, he was offered a judgeship, but declined at Prime Minis-
ter Gladstone's request to avoid a by-election which could hiave caused difficulty to the govern-
ment. 1912-1921 Dictionary of National Biography 120-23 (H. Davis & J. Weaver eds. 1966).
4 See G. Gilmore, The Death of Contract 39 (1974).
5 Raffles, 2 H. & C. 906, 159 Eng. Rep. 375 (Ex. 1864).
6 Raffles, 33 L.J.N.S. 160 (Ex. 1864).
7 G. Gilmore, supra note 4, at 35-44 (1974). For a more recent discussion, see Birming-](ViewImageLocal?handle=hein.journals/cdozo11&div=17&collection=journals&method=preview&ext=.png&size=3)
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Contracts for Cotton to Arrive: The Case of the Two Ships Peerless
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