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![handle is hein.slavery/ssactsengr0154 and id is 1 raw text is: TAYLOR V. CALDWELL
and battery having been inade before two justices of the peace, who dismissed the
complaint, and gave the accused a certificate accordingly, that certificate was held a bar
to an indictment founded on the same facts, charging assault and battery accompanied
by malicious cutting and wounding, so as to cause grievous bodily harm (b). That
seems conclusive on this matter.] It must be conceded that the present case cannot
be distinguished from Ex pare Thompson in this Court (6 Jur. N. S. 1247), but the
difference of opinion in the Court of Exchequer (6 H. & N. 193) shews that the
question is an important one. [Cockburn C.J. We will not presume that justices
would so far depart from their duty as to abuse their powers in the manner there
suggested. It is better for justices of the peace to dispose of a matter [825] like this
as a common assault than to send it for trial as a case of rape, where the accused
would most likely be acquitted.] The evidance here discloses a case of rape.
[Cockburn C.J. The evidence, so far as it relates to rape, ought not to be believed.
Crompton J. This Court, in a case to which I was not party (a), most wisely thought
that the justices have a discretion as to whether they will treat a charge of assault as
a case of common assault or not. But if they do treat it as a common assault their
decision is final. Cockburn C.J. I think the arguments used in the Exchequer, by
Pollock C.B., and Wilde B., in Ex parte Thompson (6 H. & N. 193), wholly
unconvincing.]
Sawyer was not called on to reply.
Per Curiam. (Cockburn C.J., Crompton, Blackburn and Mellor JJ.). Conviction
affirmed.
[826] TAYLOR AND ANOTHER against CALDWELL AND ANOTHER. Wednesday,
May 6th, 1863.-Contract. Accidental destruction of the subject-matter. Demise
or agreement for demise.-1. Where there is a positive contract to do a thing,
not in itself unlawful, the contractor must perform it or pay damages for not
doing it, although in consequence of unforeseen accidents, the performance of his
corLrai, hs bcouoti unexpeccediy burhensome or even impossible.-2. But this
rule is only applicable when the contract is positive and absolute, and not subject
to any condition either express or implied.-3. Where, from the nature of the
contract, it appears that the parties must from the beginning have known that it
could not be fulfilled unless when the time for the fulfilment of the contract
arrived some particular specified thing continued to exist, so that, when entering
into the contract, they must have contemplated such continuing existence as the
foundation of what was to be done; there, in the absence of any express or implied
warranty that the thing shall exist, the contract is not to be construed as a positive
contract, but as subject to an implied condition that the parties shall be excused
in case, before breach, performance becomes impossible from the perishing of the
thing without default of the contractor.-4. A. agreed with B. to give him the
use of a Music Hall on certain specified days, for the purpose of holding concerts,
with no express stipulation for the event of the destruction of the Music Hall by
fire: held, that both parties were excused from performance of the contract.
-5. An instrument is not a demise, although it contains the usual words of
demise, if its contents shew that such was not the intention of the parties.
[S.C. 32 L. J. Q. B. 164; 8 L. T. 356; 11W. R. 726. Followed, Appleby v. Meyers,
1867, L. R. 2 C. P. 660. Principle applied, Boast v. Firth, 1868, L. R. 4 C. P. 8.
Distinguished, Gamble v. Accident Life Insurance Company, 1870, Ir. R. 4 C. L. 204.
Followed, Robinson v. Davison, 1871, L. R. 6 Ex. 275. Referred to, Jackson v.
Union Marine Insurance Company, 1874, L. R. 10 C. P. 141. Followed, Howell v.
Coupland, 1876, 1 Q. B. D. 258. Applied, In re Arthur, 1880, 14 Ch. D. 608.
Distinguished, Marshall v. Schofield, 1882, 52 L. J. Q. B. 60. See Chapman v. Withers,
1888, 20 Q. B. D. 824. Referred to, Grove v. Johnston, 1889, 24 L. I. Ir. 358.
Distinguished, Turner v. Goldsmith, [1891] 1 Q. B. 549. Referred to, In re Jamieson
.and Newcastle Steamship Freight Insurance Association, [1895] 1 Q. B. 515; [1895]
2 Q. B. 90. Followed, Nicholl v. Ashton, [1901] 2 K. B. 126. Referred to, Elliott v.
(b) The learned Judge doubtless refers to Reg. v. Elrington, 1 B. & S. 688.
(a) See note (b), p. 824.
3.B. & S. 826.](ViewImageLocal?handle=hein.slavery/ssactsengr0154&div=1&collection=&method=preview&ext=.png&size=3)