ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Wednesday, December 7, 2005

Today in History: The Argument in Carbolic Smoke Ball

Finlay_1 Henry_dickens_3 On this date, December 7, 1893, the English Court of Appeal heard oral argument in Carlill v. Carbolic Smoke Ball Co.  We recently had some information on the case here.

One of the interesting aspects of the case is that although the dispute involved only £100 (about £7,200 today), the counsel who argued it were among the most eminent in England.  Carbolic's original lawyer, Herbert Henry Asquith, couldn't pursue the appeal because he had just been named Home Secretary.  (He would later become Prime Minister.)

To replace him, Carbolic called on Robert Bannatyne Finlay, Q.C. (1842-1929).  Finlay (left) had graduated in medicine from Edinburgh University before deciding to practice law, and had been a Liberal Member of Parliament for a nearly a decade at the time he argued the case.  After Carlill Finlay would go on to bigger things:  Solicitor General (1895), Attorney General (1900), and Lord Chancellor in David Lloyd George’s wartime government (1916).  Later, he'd serve as a member of the Court of Arbitration at the Hague and a judge of the Permanent Court of International Justice under the League of Nations, would be raised to the peerage as 1st Viscount Finlay.

Talbot Lead counsel for Mrs. Carlill was Sir Henry Fielding Dickens, Q.C. (1849-1933), sixth son of the novelist Charles Dickens.  Young Henry (above right) is often regarded as the only one of the writer's children to make a success of himself.  By the time of the argument he had earned enough of a reputation and a living at the bar that he had repeatedly refused nominations for election to Parliament, for fear it will cut into his legal practice.  Later, he became Common Serjeant at the Central Criminal Court in Londonl, presiding over trials at the Old Bailey for fifteen years.  With Dickens was a junior counsel, Sir George John Talbot (1861-1938) (left), who took a double first at Oxford and later became a judge and a member of the Privy Council.

The legal firepower may have been unnecessary.  After listening to the arguments the judges ruled for Carlill without even bothering to reserve decision.

[Frank Snyder]

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